Court questions whether it should be hearing wrongful arrest case

The Minister’s advocate, Murray Lowe SC, had a difficult time convincing the judges that there was a constitutional issue in the case in which the High Court found that the arrest, detention and assault of Antus van Niekerk by police in October 2004 were unlawful. Van Niekerk sued the Minister and the court found in his favour. The Minister unsuccessfully applied in the High Court for leave to appeal to the full Bench and subsequently to the Supreme Court of Appeal. The Minister had wanted to argue that the High Court had reached a wrong conclusion on the facts and therefore wanted the court to consider the facts. Judge Sandile Ngcobo asked whether the Constitutional Court should hear this case. ‘Should we upset the factual findings of the trial court? The difficulty I have is that this court’s jurisdiction is to deal with constitutional issues. The Minister failed to persuade the SCA to change the findings on facts. You are now inviting us to review the facts.’ Judge Mahomed Navsa concurred, saying that when the Minister petitioned the SCA, the Minister’s case was grounded on facts. Full Business Day report

According to the facts of the case, Van Niekerk was arrested on October 9 2004 in Port Elizabeth. He was detained for approximately four hours on account of having allegedly been drunk and disorderly in a public space. A report on the IoL site says Van Niekerk alleges that he was drinking with friends when 30 policemen arrived, arrested him without a warrant, handcuffed him, threw him to the ground twice and hit and kicked him. He is claiming R210 500 from the Minister for unlawful arrest, assault and medical expenses. The Minister submitted that the judgment of the High Court created an ‘untenable situation’ if it required that a drunk and disorderly person be issued with a warning to appear in court rather than be arrested. Full report on the IoL site

Another matter before the Constitutional Court is an urgent application for the confirmation of an order of constitutional invalidity handed down by the Pretoria High Court declaring section 3 of the State Liability Act 20 of 1957 (SLA) inconsistent with the Constitution. This section prohibits any execution, attachment or like process against the State to satisfy a judgment debt against it. The hearing takes place today.