Court issues stern warning and deterrent order in police brutality judgment

December 1st, 2023

Xaba and Another v Minister of Police (NWM) (unreported case no 788/2021; 789/2021, 31-8-2023) (Morgan AJ)

‘Our strength will come not from the sharpness of our spears, but from our willingness to offer others the protection of our shields’ (Simon Sinek Leaders Eat Last (Penguin Books 2017)).

‘[T]he liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against infringement’ (see para 31).

Our courts are inundated with matters involving unlawful arrest, detention, and assault, evidencing the prevalence of police brutality in our society today. In the recent judgment of Xaba, the North West Division of the High Court handed down judgment on a matter that arose from police brutality, where the plaintiffs brought a delictual damages claim consequent to their unlawful arrest, detention, and assault by members of the South African Police Service. The task at hand for the court was the determination of the quantum of damages suffered by the plaintiffs, as the defendant (Minister of Police) conceded to 100% liability. However, what was meant to be a clearcut determination of the quantum of damages was amplified with a stern warning and a deterrent order.

In its determination, the court emphasised the importance of the protection that the Constitution offers the right to freedom and security of person, which encompasses the right not to be deprived of freedom arbitrarily or without justification. Law enforcement officers have an obligation to guard this right, as they have a duty to serve and protect the public and to uphold and protect the law. Thus, the court expressed its great disappointment in law enforcement officers who fail to fulfil their duties and obligations, as this failure is contrary to their oath of office.

The court further issued a stern warning to law enforcement officers in South Africa who act contrary to their oath of office and do not respect and obey a person’s right to freedom. A degree of the court’s rationale derived from its aim to restore the integrity and dignity of law enforcement officers among the public. As noted by the court, brutality on the part of law enforcement officers results in the loss of public confidence in these authorities, which may cause restlessness and lawlessness among the public, leading to communities taking matters into their own hands instead of reporting incidents to relevant authorities. Thus, the court accentuated the importance of action to be taken to ensure that police brutality comes to an end and the dignity of law enforcement officers is restored.

The court further stressed the importance of the Independent Police Investigative Directorate (IPID), which is appointed to investigate crimes committed by law enforcement officers to ensure that policing protects the dignity of persons and protects and upholds the law. The court stressed the IPID’s duty after stating that our court rolls are flooded by matters similar to the current one. The flooded court rolls cause widespread prejudice in our court system, as other parties who have proceedings in court consequently have to postpone or delay their proceedings due to the limited resources in our courts. In addition to the limited resources in our courts, after the court finds that the plaintiff has a successful claim, the monetary award derives from taxpayers’ monies. This double-edged sword affects taxpayers and the South African markets, as it cripples our economy and impacts investor confidence, as investors become reluctant to invest in our country’s economy.

As such, in para 7 of the order, the court found it necessary that the defendant (Minister of Police) and Executive Director of the IPID, investigate the matter within three months of the order and provide the court with a written report on action that has been taken against the police officers responsible for the plaintiffs’ unlawful arrest, detention, and assault.

The court concluded by awarding the plaintiffs one composite amount in respect of the general damages they suffered in each claim, interest, and costs. The court further included para 7, as noted above, which reinforces the importance of law enforcement officers to serve the public, uphold and protect the law and the Constitution, and protect the public in line with the duties and responsibilities as encumbered by their oath of office.

Senamile Sishi LLB (UKZN) and Nosiphiwo Nzimande LLB LLM (UKZN) are candidate legal practitioners at Livingston Leandy in Durban.

This article was first published in De Rebus in 2023 (Dec) DR 42.