- The Supreme Court of Appeal held that detention is prima facie unlawful and must be justified by the state.
- The court found that police failed to inform the detainee of his right to apply for bail or consider his release.
- The court awarded R80 000 in damages for unlawful detention over 48 hours.
South Africa’s Supreme Court of Appeal has upheld an appeal by Makofane William Mohlala, ruling that his continued detention was unlawful after police failed to tell him he had the right to apply for bail and made no effort to consider releasing him.
The court was emphasised that once a person is detained, it is the state’s job to justify that detention, not the detainee’s job to prove it was wrong.
Mohlala was arrested on 1 April 2017 after a breathalyser test showed he had been drinking and driving. He was taken to the hospital for a blood sample, but refused, saying he was allergic to needles. He was then held at Dennilton Police Station on charges of driving under the influence and defeating the administration of justice.
Mohlala spent roughly 48 hours in custody before being released on warning after his court appearance on 3 April 2017. The charges against him were later withdrawn.
Mohlala then sued for damages, arguing that police had the power under the Criminal Procedure Act to release him with a warning to appear in court, and that their failure to do so made his detention unlawful.
The Minister of Police denied the allegations. The magistrates’ court threw out the claim, ruling that it was Mohlala’s responsibility to prove his detention was unlawful. The High Court in Polokwane agreed, finding that he had not shown that a suitably ranked officer was available, or that he had asked for bail and been refused.
The central question was whether the lower courts had been right to put the burden on Mohlala, requiring him to prove that his detention was unlawful and that he had asked for bail and been turned down. The appeal dealt only with the claim for unlawful detention.
Court findings on the burden and police duties
Writing for the majority, Acting Judge A Govindjee found that the lower courts had got it wrong. Once it is established that someone’s freedom has been interfered with, the burden falls on the party who caused that interference to justify it, not the other way around, the judge said.
He stated, “Once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification.”
The court examined Sections 50 and 59 of the Criminal Procedure Act 51 of 1977. It held that once the conditions for police bail are met, the process kicks in automatically, and police are obliged to find out whether the detainee wants the possibility of release on bail considered.
Judge Govindjee stated, “The police are required to ascertain whether the detainee wishes to have the possibility of release on police bail considered.”
Crucially, Mohlala’s evidence that he was never told he could apply for bail went unchallenged. The court accepted that whatever rights were read to him at arrest made no mention of bail at all.
Judge Govindjee held, “By failing to inform him of his right to institute bail proceedings, the police also failed to comply with the procedure following arrest.”
The court also found no indication that police had even considered releasing Mohlala on bail. The Minister offered no evidence to explain why he was kept in custody.
Judge Govindjee stated, “In the absence of any explanation for the continued detention, the detention remained unjustified and therefore unlawful.”
Application of the law to the facts
The court held that Mohlala’s continued detention was an interference with his liberty and was prima facie unlawful. It firmly rejected the lower courts’ approach, which had placed the burden on Mohlala to show that he had asked for bail and that a qualified officer had been present.
Judge Govindjee found this to be a legal error and confirmed that the burden lay squarely with the Minister to justify why Mohlala had been kept behind bars.
Quantum and damages
In determining damages, the court weighed the length of the detention alongside the conditions Mohlala had endured.
Mohlala testified that he spent roughly two days in dirty cells, unable to eat and without a blanket. While the evidence on conditions was limited, the court accepted that the loss of liberty alone was a serious harm.
Judge Govindjee stated, “The unlawful deprivation of liberty is itself a serious injury.” Looking at comparable cases, the court settled on R80 000 as an appropriate award of general damages.
Outcome and costs
The appeal succeeded. The orders of both the High Court and the magistrates’ court were set aside, replaced with a finding that the Minister of Police was liable for Mohlala’s unlawful detention between 1 and 3 April 2017.
The Minister was ordered to pay R80 000 in damages plus interest, and to cover 50 percent of Mohlala’s legal costs in both the High Court and the Supreme Court of Appeal.
Judge Govindjee noted that Mohlala had not succeeded on his other claims, which warranted the partial costs order. The court also took a dim view of the inflated damages figure originally claimed, observing that such overreach serves only to drive up costs unnecessarily.
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