There exists a substantial body of South African case law that
articulates the principles governing unlawful arrest and detention.
The jurisprudence also canvasses the manner in which claims for
damages arising therefrom are adjudicated. In two recent matters,
the South African Supreme Court of Appeal
("SCA") and the North West Division of
the High Court of South Africa, Mahikeng
("Mahikeng High
Court"), have applied these established
principles.
The underlying principles
In Areff v Minister of Police, the South African
Appellate Division, as it was known then, held that the unlawful
deprivation of liberty constitutes a grave wrong and is a serious
inroad into the freedom and rights of a person. The South African
Constitutional Court in Mahlangu and Another v Minister of
Police held that the rights to freedom and security are
sacrosanct and are safeguarded by the Constitution.
