REPORTABLE

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:
Case No. A238/09

THE MINISTER OF JUSTICE AND

BINNS-WARD J:

[1] The result of this case illustrates the role of legal policy in the determination of wrongfulness in delictual claims made in terms of the Aquilian action.

[2] The matter before us is an appeal against the judgment of the civil court magistrate at Oudtshoorn dismissing an action instituted by the appellant, as plaintiff, against the Minister of Justice and Constitutional Development, as first defendant, and the criminal court magistrate before whom the appellant had been brought on a warrant of arrest issued as a consequence of his failure to appear at a remand hearing. The civil magistrate was cited as second defendant in the action.

[5] The action was brought against the magistrate in his personal capacity, and against the Minister on the basis of the latter's alleged vicarious liability for the wrongdoings of the magistrate. In the latter regard, the appellant cited the Minister in the particulars of claim as being the person 'under whose control, supervision and guidelines all magistrates function'.

[7] The factual background to the claim was as follows: The appellant had been on remand on his own recognisances pending his trial, together with a number of co-accused, on charges of theft and malicious injury to property. Having been initially brought before the court in custody, he had thereafter been remanded out of custody on warning. In this regard he had been warned at a remand hearing held on 25 April 2005 to be present in court again on 5 May 2005 (see s 72(1) of the Criminal Procedure Act 51 of 1977). The reason for his non-appearance was that he had encountered unforeseen difficulties with the transport he had arranged to bring him from Cape Town to Oudtshoorn on the appointed date. He had attended at a police station in Cape Town to explain his problem and had made an affidavit there recording the relevant facts. It was his intention to produce this affidavit in support of his explanation for his non-appearance when he next came before the criminal court magistrate.

[8] On his return to Oudtshoorn a few days later the appellant did not initiate an appearance before the magistrate, as he might have been advised to do. He instead thought it in order to await the next scheduled remand hearing in the matter, the date of which he had ascertained from one of his co-accused. As a result of the execution of the warrant for his arrest issued in his absence on
5 May 2005, the appellant was brought before the magistrate on what is colloquially referred to as 'a warrant appearance'.

[9] At the warrant appearance, the criminal court magistrate did not enquire into the appellant's reason for not appearing in court on 5 May 2005. The magistrate instead summarily remanded the appellant in custody until the next date to which the appellant's co-accused in the pending criminal trial had been warned or remanded to appear. The magistrate did advise the appellant of his rights to obtain legal representation and to apply for bail, but he gave the appellant no opportunity to hand in the affidavit of explanation that the appellant had specially deposed to a few days earlier in Cape Town. According to the appellant's evidence he had been brusquely ordered by the magistrate to stand down when he had tried to present the affidavit.

[10] The Criminal Procedure Act contains provisions dealing pertinently with what may happen if an accused person who is on remand on warning fails to appear. Section 72(2)(a) of the Act provides:

'An accused who is released under subsection (1) (a) and who fails to appear or, as the case may be, to remain in attendance at the proceedings in accordance with a warning under that paragraph, or who fails to comply with a condition imposed under subsection (1) (a), shall be guilty of an offence and liable to the punishment prescribed under subsection (4).'

Section 72(4) provides insofar as currently relevant:

'The court may, if satisfied that an accused referred to in subsection (2) (a)  was duly warned in terms of paragraph (a) and that such accused .... has failed to comply with such warning or to comply with a condition imposed, issue a warrant for his arrest, and may, when he is brought before the court, in a summary manner enquire into his failure and, unless such accused or such person satisfies the court that his failure was not due to fault on his part, sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[17] There is no doubt that the criminal court magistrate acted negligently. His conduct fell short of that expected from the reasonable person in his position; he should have been aware thatit might cause the plaintiff damage and he failed to act reasonably in failing to avoid such harm occurring.

[21] The Court held, however, that there was 'no reason why an unjustifiable breach of s 12(1)(a) of the Constitution should not be sufficient to establish unlawfulness for the purposes of the applicant's delictual action of unlawful or wrongful detention'. In arriving at the conclusion that a private law remedy in damages should be available for an infringement of a citizen's right, in terms of s 12(1) of the Constitution, not to be detained arbitrarily and without just cause, the Court also had regard to the fact that South
Africa bears an international obligation in this regard in terms of article 9(5) of the ICCPR...'.

[24] In the face of the finding already made that the magistrate in the current act did not act maliciously, three questions remain for consideration. The first is whether judicial immunity applies in a situation in which the magistrate exercised powers that he did not have, that to say in a sense outside his jurisdiction. The second and third questions are to some extent bound up with each other; they raise the issues whether the fact that the unlawful committal of the appellant to prison in breach of his fundamental rights in terms of s 12 of the Bill of Rights, or the fact that South Africa has adopted the International Covenant on Civil and Political Rights which provides, in article 9(5), that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation should affect the judicial immunity that would otherwise have protected the magistrate from delictual liability.

[25] Unfortunately, these questions were only hinted at, rather than pertinently argued by the parties' legal representatives at the hearing of the appeal.

39. This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.'

[32] Section 12 of the Constitution entrenches the right of personal liberty. It does not, by itself, afford a right of compensation to a person whose right of personal liberty has been infringed. As our law currently stands, compensation for an infringement of that right can be obtained only by way of one of the delictual actions. Accordingly denying the appellant a claim for damages against the criminal court magistrate does not entail a limitation of his fundamental right to liberty; nor does such denialdenote that the extent of judicial immunity that exists under the common law offends against the spirit, purport and objects of the Bill of Rights. Even if one were to test the matter by notionally thinking away the absolute quality of judicial immunity the fact that the magistrate's negligent act or omission resulted in an infringement of the appellant's constitutional right would be only a factor (albeit an important one) to be weighed in the balance in determining whether the magistrate's conduct was wrongful in the delictual sense. However, the considerations mentioned earlier, which have led the courts here and elsewhere - and in some cases certain legislatures - to affirm that the doctrine of judicial immunity has an important legal role in the public interest would, when weighed in the balance, compel the conclusion that it would be inappropriate as a matter of legal policy to characterise the magistrate's conduct as wrongful in the sense required for the appellant's claim to have succeeded (i.e. as 'actionable').

[34] The English Human Rights Act 1998 ('the HRA'), which was enacted to give effectiveness to the obligations undertaken by the United Kingdom as a result of that country having become a party to the ECHR, acknowledges the necessity to address the incompatibility of the doctrine of judicial immunity under the common law with the right to compensation afforded under the Treaty to a person who has been detained, even by judicial order, other than 'in accordance with a procedure prescribed by law'.

[35] Section 9(3) of the HRA excludes liability in damages 'in respect of a judicial act done in good faith ...otherwise than to compensate a person to the extent required by article 5(5) of the Convention'. In terms of s 9(4) of the HRA any damages claimed in terms of article 5(5) of the ECHR fall to be paid by the Crown and fall to be awarded in proceedings in which the Minister of State responsible for the court concerned or a person or government department nominated by the latter is joined as a party.

[37] In the light of the conclusion reached on the magistrate's immunity from liability, the issue of the alleged vicarious liability of the Minister for the acts of the criminal court magistrate therefore does not arise for determination.

[39] In my view the appeal must be dismissed. In view of the peculiar circumstances of the case it would be inappropriate to make a costs order against the appellant. There should therefore be no order as to costs.

I agree. The appeal is dismissed, with no order as to costs.

E. MOOSA 
Judge of the High Court