Case name:
Greenberg v De Beer & Another [2011] ZAGPJHC 66

Area of law:
Delict- Unlawful Arrest-Damages

Summary:
The plaintiff instituted action proceedings against De Beer (first defendant) and the Minister of Safety and Security (second defendant) (“defendants”) claiming damages in the sum of R450,000.00 for unlawful arrest and detention.

The plaintiff based his claim on the fact that he was wrongfully and unlawfully deprived of his freedom and liberty for 6 days by the first defendant acting at all material times within the course and scope of her employment with the second defendant. Alternatively, he was wrongfully and maliciously arrested without reasonable/probable cause. Alternatively, the first defendant was actuated by an indirect/improper motive when she arrested the plaintiff.

The plaintiff claims that he, as a result of the defendants conduct suffered damages, loss of self-respect, humiliation, degradation, loss of dignity and unusual and cruel punishment.

The defendants denied liability and raised 2 special pleas, namely that of prescription contending that the plaintiff had failed to comply with S57(1) of the South African Police Act (“SAPA”) 68 of 1995. They contended that the plaintiff’s claim had prescribed as it was instituted after the expiry of 12 calendar months after the date on which the plaintiff became aware of the alleged act or omission and further contended that the plaintiff failed to comply with S57(2) of the SAPA, which requires one month’s notice to be served on the defendants prior to institution of any legal action. The plaintiff was however awarded condonation.

Brief facts:
A breach of domestic violence docket was opened by the plaintiff’s ex-wife on 5 April 2011 and the plaintiff was arrested 3 days later. The plaintiff appeared at the Johannesburg Magistrates Court where he was released on bail. The matter was subsequently struck off the roll as the docket was not brought to court on numerous occasions.  

The court then evaluated all evidence in the matter. The evidence suggested that the plaintiff was arrested without a warrant of arrest and the defendants failed to discharge the onus that he may be arrested without one. The police told the court that they were unsure that the plaintiff would comply with the notice to appear in court.  The court found that there was no reason to arrest the plaintiff.  The police knew where the plaintiff lived and worked and he was very co-operative with the police. The court found that he was clearly traceable and he was no threat.

The court found that the arrest was wrongful, unlawful and without proper justification.

The court awarded damages in the amount of R90,000.00, plus R25,000.00 for legal fees.

Importance/value:
If an arrest is made unlawfully and without proper justification, the unlawfully detained person is entitled to a claim damages.

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