Breaking the causal chain: When can the Minister of Police be held liable for further detention?

December 1st, 2022

Picture source: Gallo Images/Getty

Section 50(1)(c) of the Criminal Procedure Act 51 of 1977 provides a safeguard provision, which obliges that a suspect must be brought before court within 48 hours after arrest for consideration of bail. In Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) at para 44 it was held that the role of the police officers becomes exhausted after bringing the suspect before the court and the role for determination of further detention pending trial is one of the court.

When a court orders a further detention, its decision must conform to s 12(1)(a) of the Constitution. An exposition from Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) at para 43 is that, because an arrest and detention encroaches one’s right to freedom, s 12(1)(a) of the Constitution does not only require the procedure to be fair but it must be substantively fair on just cause with acceptable reasons. If the detention does not meet these requirements, it becomes unlawful. This scenario, therefore, attracts liability on the Minister of Police under the common law principle of causation on the premise that the breach of that constitutional right to freedom was predicated by the unlawful arrest. To see how the Minister of Police may be held liable for further detention see Woji v Minister of Police [2015] 1 All SA 68 (SCA) and De Klerk v Minister of Police 2019 (12) BCLR 1425 (CC).

In Woji, the plaintiff was arrested and detained on charges of armed robbery. During the bail hearing, the Investigating Officer, Mr Kuhn, testified that Mr Woji was identified in a video footage as one of the accused. Relying on the evidence by Mr Kuhn, the court denied his bail application. On viewing the footage it was found that Mr Woji could not be depict on the video and the charges were subsequently withdrawn. He then instituted a delictual claim and pleaded that the magistrate in refusing the bail acted on information provided by Mr Kuhn and that Mr Kuhn failed to properly investigate and failed to bring relevant information before the court. The High Court, however, dismissed his claim on the basis that the further detention was at the discretion of the court and the detention was, therefore, lawful.

He appealed the dismissal and the Supreme Court of Appeal (SCA) evaluated the legality of the manner in which the decision of the bail application was exercised, and it did so in the context of s 12(1)(a) of the Constitution. The SCA found support in Zealand, which showed that once the detention is not justifiable by acceptable reasons and without just cause, the right not to be deprived of freedom is established.

In determination of liability, the court examined the probability that would have ensued had it not been for the erroneous view of Mr Kuhn who gave untruthful information to the court, and it held that Mr Woji would have probably been released on bail. Lastly, it was held that a reasonable person in the position of Mr Kuhn would have foreseen that his untruthful evidence would lead to the refusal of bail and on that footing it was found that Mr Kuhn’s wrongful conduct was closely linked to the loss that followed. Thus, the liability was found on the Minister of Police.

In De Klerk, the applicant was charged for assault with intent to cause grievous bodily harm. After the arrest on the same day, he was taken to a ‘reception court’ where a bail application was not considered, and as a result he remained in detention. The complaint against him was later withdrawn. He then instituted a delictual claim for unlawful arrest and detention, and malicious prosecution. The claim was dismissed by the High Court. When he appealed to the SCA, the majority judgment incorrectly relied on Sekhoto and held that the Minister of Police cannot be liable for detention post first appearance even if the arrest is unlawful as that decision is exercised by a court. The court awarded the plaintiff damages only up to his first appearance in court.

Rogers AJA (as he then was) penned a dissenting judgment that the Minister of Police was liable for the entire period of detention. His rationale was based on causation and policy considerations that ‘but for the unlawful arrest, the appellant would not have been brought before the court and there would have been no occasion for the court to remand him in custody. As to legal causation, the direct consequences test is satisfied’ (De Klerk v Minister of Police [2018] 2 All SA 597 (SCA) at para 39). According to the judge, policy considerations in certain circumstances, except for in this case, may not allow the Minister of Police to be held liable for further detention by a court pursuant to a deliberative or considered judicial process to the question of bail as that judicial decision may be regarded as an intervening act that breaks the causal chain between the arrest and further detention.

The decision of the SCA was appealed and Theron J writing for the majority squarely framed the issue, whether harm from further judicial detention can be attributed to the unlawful arrest, and as to what could be determinative factors to hold the Minister of Police liable for harm due to further detention.

It was first evaluated in the context of Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) and Ndlovu v Minister of Police (GP) (unreported case no 2014/15210, 9-9-2016) (Adams AJ), whether it would be relevant to consider lawfulness or unlawfulness of further detention in order to establish liability on the Minister of Police and if found to be lawful, whether that would absolve the police from being liable for subsequent detention that was factually caused by the unlawful arrest. In Tyokwana, the accused was detained pending sentencing after pleading guilty to his charges and it later transpired that the plea was made under duress, and the police officer misled the court during the bail hearing. In Ndlovu, the accused appeared before the ‘reception court’ and the bail was not considered. It was held that the magistrate was obliged to apply his mind to the question of bail and that resulted in the unlawfulness of the accused’s remand.

In both cases, the Minister of Police was found liable for further detention without an express consideration to the principle of causation. Also, the court considered the judgment of Minister of Law and Order v Thandani 1991 (4) SA 862 (A) and Minister of Law and Order v Ebrahim (SCA) (unreported case no 97/1993, 22-11-1994) (Van Heerden, Smalberger, FH Grosskopf, Nienaber and Harms JJA) together with that of Woji wherein the principle of legal causation was considered in finding the Minister of Police liable.

The court, in finding the correct position after discerning the diverging SCA judgments, held that the plaintiff need not prove unlawfulness of the harm, but only that the harm was not too remote from the unlawful arrest. Put plainly, in a delictual claim the plaintiff needs to prove that the unlawful and wrongful conduct was the factual and legal cause of the harm.

The court further aligned itself with its decision in Zealand that a further detention by the court does not necessarily mean that it is lawful, and so in order to determine deprivation of liberty by further detention at the instance of the court, there has to be regard to the acceptable reasons and manner the discretion of bail was exercised. It was then held that legal causation was an established principle couched with traditional factors of reasonableness and constitutionally infused public policy considerations when determining liability of the Minister of Police. The considerations may include whether the further detention is lawful in order to circumvent the extension of liability and the conduct of the police officers after unlawful arrest. At the end, as the court put it, the case is to be determined on its own facts and merits.

The court rejected the reliance by the majority judgment in Sekhoto, and it evaluated, with concessions, the reasoning proffered in the minority judgment, insofar as it sought to mitigate the risk of liability of the Minister of Police on instances where the magistrate applies their mind to the question of bail that it should be regarded as an intervening act. In addition to the reasoning of the minority judgment of Rogers AJA, the obiter dictum of Theron J was that there could be no plausible cause to not regard an unlawful positive act by the magistrate as an intervening act that breaks the chain of causation. The same goes for deliberative juridical decisions.

On that jurisprudence, the factors that the court considered in deciding the matter it was seized with were –

  • reasonable foreseeability by the arresting officer;
  • the direct consequence;
  • novus actus interveniens; and
  • the public policy considerations.

A balance between the subject  foresight that the plaintiff was going to be remanded in custody post appearance without a consideration of bail as she was aware that that was the norm in ‘reception courts’. A balance between the subject foresight and a causal chain was struck as the court found support from CR Snyman 6ed Criminal Law (Durban: LexisNexis 2014) at 93-4 and from JM Burchell 4ed Principles of Criminal Law (Cape Town: Juta 2014) at 101 that an intervening act does not break the causal chain when there was subjective foreseeability of the consequences flowing from the conduct. It was thus found that the arrestor reconciled herself with that subjective foreseeability of harm, which was not too remote from the harm. The court could not find the remand order by the magistrate as an intervening act and subsequently found the Minister of Police liable for the whole period of detention of the plaintiff as the unlawful arrest was the factual and legal cause of the harm.

Subsequent to De Klerk, the court was seized with the matter of Mahlangu and Another v Minister of Police 2021 (7) BCLR 698 (CC). The applicants were detained because of a false confession by Mr Mahlangu who was coerced and tortured by the police officers to make that false confession. The SCA majority judgment refused to hold the Minister of Police liable for the entire period of detention and held that his liability ceased when the magistrate ordered a further detention after their second appearance in court on which date, they must have applied for bail but failed. The court dismissed the decision by the SCA based on policy consideration and legal causation. It revisited its jurisprudence from De Klerk and held that the unlawful confession by Mr Mahlangu was what caused the arrest and the entire detention. Despite the police officer’s awareness that the confession was unlawful, they proceeded to conceal the truthful information from the court and the prosecutor.


The jurisprudence from Woji and De Klerk is succinct, that a legal causation is the principle to determine whether the Minister of Police can be held liable for further detention. The onus is on the plaintiff to prove that harm was not too remote from the unlawful conduct of the arrestor. It follows that lawfulness or unlawfulness of the remand order by the court is not a determinative factor for the liability of further detention to arise. However, it would be a mitigation of risk when the magistrate exercises his or her juridical process as that would, depending on the facts of the case, break the chain of causation.

Legal causation is not considered on its own, but traditional factors and policy considerations, such as the conduct of the police officers after unlawful arrest; reasonableness; and constitutional policy considerations are all taken into account.

Therefore, it is imperative for the plaintiff to properly plead the factual and the legal cause of harm in their papers, as the case of De Klerk and Woji was decided on what was pleaded by the plaintiffs.

Limnandi Mtshemla LLB (UFH) Compliance Management (UCT) is an Assistant State Attorney in Cape Town.

This article was first published in De Rebus in 2022 (Dec) DR 19.

De Rebus