Malachi v Cape Dance Academy Int (Pty) Ltd and Others (14830/09) [2010] ZAWCHC 1; 2010 (7) BCLR 678 (WCC) [2010] 3 All SA 86 (WCC) (7 January 2010)

Malachi v Cape Dance Academy Int (Pty) Ltd and Others (14830/09) [2010] ZAWCHC 1; 2010 (7) BCLR 678 (WCC) [2010] 3 All SA 86 (WCC) (7 January 2010)

The court found that the applicant's arrest and detention under section 30(3) of the Magistrates’ Courts Act and the common law rule of arrest tanquam suspectus de fuga were inconsistent with her constitutional rights to freedom and security of the person. The statutory and common law provisions permitting such arrest do not meet the requirements of reasonableness and justifiability under section 36 of the Constitution. The court held that the words 'arrest tanquam suspectus de fuga' in section 30(1) must be deleted and declared unconstitutional. The common law rule was also found to be constitutionally invalid. The relief sought was not merely academic, as the constitutional issues...

Citation
[2010] ZAWCHC 1
Parties
Applicant: Tatiana Malachi; Respondent: Cape Dance Academy Int. (Pty) Ltd; Respondent: House of Rasputin Properties (Pty) Ltd; Respondent: Additional Magistrate, District of Cape Town; Respondent: Minister of Justice; Respondent: Minister of Home Affairs; Respondent: The Commanding Officer, Pollsmoor Prison
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 January 2010
Case Number
14830/09
Procedural Posture
Urgent Application / Judgment Delivered After Urgent Application Challenging Arrest and Constitutionality of Statutory and Common Law Provisions.
Outcome
Application granted. The statutory and common law provisions permitting arrest tanquam suspectus de fuga declared unconstitutional and invalid.
Judges
Hlophe JP
Legal Topics
Arrest Tanquam Suspectus De Fuga, Magistrates Courts Act, Detention Without Trial, Bill of Rights Limitation, Enforcement of Foreign Judgments
Constitutional Law Civil Procedure Arrest Tanquam Suspectus De Fuga Magistrates Courts Act Detention Without Trial Bill of Rights Limitation Enforcement of Foreign Judgments

Case Brief

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Parties

Tatiana Malachi

Applicant

Cape Dance Academy Int. (Pty) Ltd

Respondent

House of Rasputin Properties (Pty) Ltd

Respondent

Additional Magistrate, District of Cape Town

Respondent

Minister of Justice

Respondent

Minister of Home Affairs

Respondent

The Commanding Officer, Pollsmoor Prison

Respondent

Procedural Posture

Urgent Application / Judgment Delivered After Urgent Application Challenging Arrest and Constitutionality of Statutory and Common Law Provisions.

Legal Issues

  1. 1 Whether section 30(3) of the Magistrates’ Courts Act and the common law rule of arrest tanquam suspectus de fuga are unconstitutional and invalid.
  2. 2 Whether the applicant's detention pursuant to the arrest warrant was lawful and compatible with constitutional rights.
  3. 3 Whether the relief sought is academic due to the applicant's release and discharge of the warrant.

Ratio Decidendi

The court found that the applicant's arrest and detention under section 30(3) of the Magistrates’ Courts Act and the common law rule of arrest tanquam suspectus de fuga were inconsistent with her constitutional rights to freedom and security of the person. The statutory and common law provisions permitting such arrest do not meet the requirements of reasonableness and justifiability under section 36 of the Constitution. The court held that the words 'arrest tanquam suspectus de fuga' in section 30(1) must be deleted and declared unconstitutional. The common law rule was also found to be constitutionally invalid. The relief sought was not merely academic, as the constitutional issues...

Court Disposition

Application granted. The statutory and common law provisions permitting arrest tanquam suspectus de fuga declared unconstitutional and invalid.

Orders

  • The words 'arrest tanquam suspectus de fuga' are deleted from section 30(1) of the Magistrates’ Courts Act.
  • Section 30(3) of the Magistrates’ Courts Act and the common law rule of arrest tanquam suspectus de fuga are declared unconstitutional and invalid.