Gali obo S G and Another v Kok and Another (CA115/2006) [2009] ZAECGHC 59 (27 August 2009)

Gali obo S G and Another v Kok and Another (CA115/2006) [2009] ZAECGHC 59 (27 August 2009)

The magistrate erred in his interpretation of arrest and detention, conflating the formalities of section 39 of the Criminal Procedure Act with the factual deprivation of liberty. The minor was deprived of his liberty when taken by the police without consent, which constituted an arrest. The magistrate further misdirected himself by considering the absence of evidence of trauma as relevant to the merits, when it is only relevant to quantum. The correct test for absolution from the instance was not applied, as there was evidence upon which a reasonable court could find for the plaintiffs. The appeal succeeds, the magistrate's order is set aside, and the matter is remitted for further conduct.

Citation
[2009] ZAECGHC 59
Parties
Appellant: Mzwandile Gali obo S G; Appellant: Caroline Gali; Respondent: Mr Kok; Respondent: Minister of Safety & Security
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
27 August 2009
Case Number
CA115/2006
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Order of Absolution From the Instance After Separation of Merits and Quantum.
Outcome
Appeal upheld; magistrate's order of absolution from the instance set aside; matter remitted for further conduct.
Judges
R Pillay, F Kroon
Legal Topics
Unlawful Arrest, Unlawful Detention, Absolution From the Instance, Quantum of Damages
Civil Procedure Delict Unlawful Arrest Unlawful Detention Absolution From the Instance Quantum of Damages

Case Brief

Summary, issues, holding and outcome

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Parties

Mzwandile Gali obo S G

Appellant

Caroline Gali

Appellant

Mr Kok

Respondent

Minister of Safety & Security

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Order of Absolution From the Instance After Separation of Merits and Quantum.

Legal Issues

  1. 1 Whether the minor was unlawfully arrested and detained by the police.
  2. 2 Whether the magistrate erred in granting absolution from the instance at the close of the plaintiffs' case.
  3. 3 Whether the trauma suffered by the plaintiffs was relevant to the merits or only to quantum.

Ratio Decidendi

The magistrate erred in his interpretation of arrest and detention, conflating the formalities of section 39 of the Criminal Procedure Act with the factual deprivation of liberty. The minor was deprived of his liberty when taken by the police without consent, which constituted an arrest. The magistrate further misdirected himself by considering the absence of evidence of trauma as relevant to the merits, when it is only relevant to quantum. The correct test for absolution from the instance was not applied, as there was evidence upon which a reasonable court could find for the plaintiffs. The appeal succeeds, the magistrate's order is set aside, and the matter is remitted for further conduct.

Court Disposition

Appeal upheld; magistrate's order of absolution from the instance set aside; matter remitted for further conduct.

Orders

  • The application for absolution from the instance is refused with costs, such costs to be borne jointly and severally by the defendants, the one paying, the other to be absolved.
  • The matter is remitted to the magistrate's court for further conduct thereof.