Accom and Others v Minister of Police (CA89/2021) [2021] ZAECGHC 112 (2 December 2021)

Accom and Others v Minister of Police (CA89/2021) [2021] ZAECGHC 112 (2 December 2021)

The court found that the arresting officer, Constable Julius, failed to properly exercise his discretion when arresting the appellants. He acted under the mistaken belief that he was obliged to arrest them simply because an offence had allegedly been committed in his presence, without considering less invasive alternatives or the specific circumstances of the appellants, including the age of one minor. The Magistrate erred by focusing solely on whether the appellants were in possession of dagga and ignored the permissive wording of section 40 and the constitutional requirement to weigh all relevant factors. The court held that the arrests and subsequent detentions were unlawful, as the...

Citation
[2021] ZAECGHC 112
Parties
Appellant: Mark Jason Accom; Appellant: Dylan Duan Kriel; Appellant: Pervin Jason van der Monie; Respondent: The Minister of Police
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
2 December 2021
Case Number
CA89/2021
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; Magistrate's order set aside and replaced with an order declaring the arrests and detentions unlawful and awarding damages to each appellant.
Judges
A Govindjee, JW Eksteen
Legal Topics
Unlawful Arrest and Detention, Exercise of Police Discretion, Damages for Deprivation of Liberty, Bill of Rights Limitation, Actio Iniuriarum
Civil Procedure Delict Constitutional Law Unlawful Arrest and Detention Exercise of Police Discretion Damages for Deprivation of Liberty Bill of Rights Limitation Actio Iniuriarum

Case Brief

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Parties

Mark Jason Accom

Appellant

Dylan Duan Kriel

Appellant

Pervin Jason van der Monie

Appellant

The Minister of Police

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the warrantless arrest and detention of the appellants by SAPS members was lawful.
  2. 2 Whether the arresting officer properly exercised his discretion to arrest, considering less invasive alternatives.
  3. 3 Whether the Magistrate erred in drawing adverse inferences from the failure of some appellants to testify.

Ratio Decidendi

The court found that the arresting officer, Constable Julius, failed to properly exercise his discretion when arresting the appellants. He acted under the mistaken belief that he was obliged to arrest them simply because an offence had allegedly been committed in his presence, without considering less invasive alternatives or the specific circumstances of the appellants, including the age of one minor. The Magistrate erred by focusing solely on whether the appellants were in possession of dagga and ignored the permissive wording of section 40 and the constitutional requirement to weigh all relevant factors. The court held that the arrests and subsequent detentions were unlawful, as the...

Court Disposition

Appeal upheld; Magistrate's order set aside and replaced with an order declaring the arrests and detentions unlawful and awarding damages to each appellant.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with an order that the defendant is to pay the plaintiffs R40,000 each as damages.