Bam v Minister of Police (1072/2016) [2019] ZAECMHC 24 (21 May 2019)

Bam v Minister of Police (1072/2016) [2019] ZAECMHC 24 (21 May 2019)

The court found that the defendant failed to prove that the plaintiff's alleged offence fell within schedule 1 of the Criminal Procedure Act, as assault with intent to do grievous bodily harm is not explicitly listed. The evidence did not establish that the victim suffered a dangerous wound as required for schedule 1. The arresting officer wrongly assumed the offence qualified and did not investigate the seriousness of the injury. Consequently, the defendant did not discharge the onus of proving the lawfulness of the arrest and detention. The plaintiff's arrest and detention were therefore unlawful, and the defendant is liable for damages.

Citation
[2019] ZAECMHC 24
Parties
Plaintiff: Ivy Nana Bam; Defendant: Minister of Police
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
21 May 2019
Case Number
1072/2016
Procedural Posture
Civil Trial / Liability Separated From Quantum; Judgment on Liability
Outcome
Plaintiff's claim for unlawful arrest and detention succeeds; defendant held liable for damages; quantum to be determined later.
Judges
S M Mbabane
Legal Topics
Unlawful Arrest, Unlawful Detention, Onus of Proof, Damages Liability, Criminal Procedure Act Section 40, Schedule 1 Offences
Civil Procedure Delict Unlawful Arrest Unlawful Detention Onus of Proof Damages Liability Criminal Procedure Act Section 40 Schedule 1 Offences

Case Brief

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Parties

Ivy Nana Bam

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Trial / Liability Separated From Quantum; Judgment on Liability

Legal Issues

  1. 1 Whether the defendant's reliance on section 40(1)(b) of the Criminal Procedure Act to arrest the plaintiff without a warrant was justified.
  2. 2 Whether the arrest and detention of the plaintiff were unlawful.

Ratio Decidendi

The court found that the defendant failed to prove that the plaintiff's alleged offence fell within schedule 1 of the Criminal Procedure Act, as assault with intent to do grievous bodily harm is not explicitly listed. The evidence did not establish that the victim suffered a dangerous wound as required for schedule 1. The arresting officer wrongly assumed the offence qualified and did not investigate the seriousness of the injury. Consequently, the defendant did not discharge the onus of proving the lawfulness of the arrest and detention. The plaintiff's arrest and detention were therefore unlawful, and the defendant is liable for damages.

Court Disposition

Plaintiff's claim for unlawful arrest and detention succeeds; defendant held liable for damages; quantum to be determined later.

Orders

  • The plaintiff's claim for unlawful arrest and detention succeeds.
  • The defendant is held liable to the plaintiff for proven or agreed damages consequent upon the plaintiff's arrest on 07 March 2016 and detention from 07 March 2016 to 08 March 2016.