Vryheidsontneming by wyse van onregmatige arrestasie en kwaadwillige arrestasie in die Suid-Afrikaanse reg

Abstract

The right to personal freedom plays an important role in the legal system today. If this right is violated, the wrongdoer could be held liable for the delicts unlawful arrest and malicious arrest. In some cases in South Afiican law, however, the state or its agents can escape liability or liability can be limited. The object of this thesis is to inquire into the legal historical background of these two delicts and to undertake a comparative survey of English and German law in order to determine how arrest is being treated in these systems and whether they offer solutions to problems experienced in South African law. Although the right to freedom played an important role in legal history, its real significance related to the status of the subject. Unlawful arrest as a deli ct was mentioned by Brunneman as well as by Mevius, both Usus Modernus Pandectarum writers. Mevius gave some directives regarding the law of arrest. He suggested that an arrest must be executed only in cases of exemption and that a judicial authority was a prerequisite for permission to affect an arrest. The Roman-Dutch author Peckius suggested that in the case of an unlawful arrest the wrongdoer was liable to pay damages to the aggrieved party. Bort and Schrassert were of the opinion that the actio iniuriarum could be instituted against the wrongdoer. Van der Linden mentioned that an arrest executed in the interest of public safety did not give rise to liability. The origin of the deli ct unlawful arrest is thus to be found in the common law ( and more specifically the period of the Usus Modernus Pandectarum and the Roman-Dutch law). In the South African legal system there are some prerequisites regarding the delicts of unlawful and malicious arrest. It is suggested that the difference between these two delicts should disappear and that they be treated as one delict only, with absolute liability as criterion. In Roman law the delicts were treated as one - in English law a distinction is made between false imprisonment and malicious arrest. Malicious arrest however, is not acknowledged by all the studied English writers as a separate tort, and there is no evidence that it should be treated as such. The conclusion can be made that malicious arrest was influenced by the tort malicious prosecution because they have similar prerequisites. Thus, through English law the delict of

malicious arrest found its way in to South African law. The current prerequisites m South African law in the case of unlawful arrest are an act, unlawfulness, causality and damages (it is not necessary to prove damages). Statutory authority is the most common ground for justification. An arrest can be executed with or without a warrant. In the former case, the arrested person must be informed of the reason( s) for the arrest and a copy of the warrant must be shown to him. It is also a prerequisite that the arresting officer should touch the body of the prisoner. In the latter case, the arrested person must necessarily be informed of the reason(s) for arrest and there must be a reasonable suspicion that a schedule 1 offence ( of the Criminal Procedure Act 51 of 1977) was committed or is about to be committed. The alleged offence must also be committed in the officer's presence. The prerequisites for malicious arrest are instigation, absence of reasonable grounds, malice and the failure of the prosecution. Although the above-mentioned prerequisites can be satisfied, the wrongdoer will not always be held liable in South African law. In some instances the State can be liable for delicts committed by its officials. The criterion in casu is that the official has to commit the delict while he is under the control of the State. According to sections 46 and 331 of the present Criminal Procedure Act 51 of 1977 the bona fide police officer will not be held liable in case of an arrest executed in pursuance of an irregular warrant or if the wrong person has been arrested. It was only until a few years ago that the protection of fundamental rights received some attention in South African law. The Constitution of the Republic of South Africa 200 of 1993 is the first South African constitution which makes provision for a bill of rights. In this Constitution the courts are granted the authority to review the validity of emergency legislation and provision is also made that neither the state nor its officials will be indemnified regarding any unlawful act committed in accordance with the emergency legislation. The problem with this provision is that the term "unlawful" is too vague - there must be a strict criterion that must be described in detail. The Law Commission suggests in its final report on group and human rights that there must be a provision regarding the settlement of a claim in the case of an unlawful arrest. In the 1996 Constitution there is no such provision.

In the English law an arrest can also be executed with or without a warrant. The bona fide arresting officer is also protected by statute in the case of an irregular warrant. The field officer is liable for all delicts committed by police officers and damages are recovered from a Police Fund, which was instituted for this purpose. Britain has no written constitution or bill of human rights, and fundamental rights are partly protected by the European Convention of Human Rights and the European Court for Human Rights. In the German law human rights are protected by the Grundgesetz and such rights may only be violated according to certain legislation. A bona fide action is not excused and a police officer will be held liable for his action. The state is vicariously liable for the actions of all officers and has a duty to protect the individual's right of freedom. Only a judge may give permission for the execution of an arrest. If a person has been arrested without a judge's preliminary permission, such permission must be granted within a week from the arrest. A person may not be arrested on political grounds. It is suggested that absolute liability should be applied in cases of unlawful arrest in order to eliminate the unfair consequences of sections 46 and 3 31 of the Criminal Procedure Act 51 of 1977. It is furthermore suggested that the state should always be held vicariously liable for the acts of police officers. The aggrieved party will then be in a more favourable position and more certain to get his compensation. As in the English law, a Police Fund should be instituted for payments in this regard. The state should have a right of recourse against the wrongdoer. The 1996 Constitution makes no provision for compensation in the case of an unlawful arrest and this is a serious lacuna in the current legislation. Section 37(5)(a) has too wide a provision and the term "unlawfulness" should be described more precisely. These suggestions may solve the current problem of non-liability (and in some instances limited liability) in the South African law.