This Case Commentary is written by Bamanye Gqanabisa, a Third-Year Law Student of Nottingham Trent University

Case Details

Case Title: Moyo v Minister of Police

Citation: [2023] ZACC 17

Court: Constitutional Court of South Africa

Year: 2023

Case Type: Constitutional Law, Police Accountability, Civil Rights

Key Issues: Unlawful arrest and detention, violation of constitutional rights (right to dignity, freedom, and security), police brutality, damages for state liability

Parties:

1. Appellant: Mr. Moyo – A victim of unlawful arrest, detention, and assault by the members of the South African Police Service (SAPS). He sued for damages stating that his constitutional rights had been infringed on.

2. Respondent: Minister of Police – Bringing on behalf of thousands of victims of human rights abuses committed by SAPS and the South African government. The Minister of Police sought leave to appeal the High Court’s judgment in which he lost to Mr. Moyo.

Abstract

This paper explores the ruling of the Constitutional Court in Moyo and Others v Minister of Police and Others [2023] ZACC 17; police violence and civil liberties in South Africa. Mr. Appellant, Moyo was arrested without a warrant, detained, and tortured both physically and psychologically by the SAPS. The Constitutional Court also ruled in favour of Mr. Moyo for violation of his constitutional right to Personal liberty and was awarded damages for infringement of his dignity as well as personal liberty and security. The judgment can be seen as contributing to police professionalism, state liability, as well as constitutional rights enforcement.

Introduction

In this paper, the focus will be subject to analysing the judgment of the Constitutional Court of South Africa in the case of Moyo v Minister of Police (2023) ZACC 17 delivered in 2023 which discusses the case of police brutality and its impact on civil liberties in the Republic of South Africa. This was one of the great legal landmarks in this legal arena, especially regarding state liability as well as enforcement of constitutional rights where the state goes beyond its powers. The judgment analysed to some extent rights of the individual under the Constitution and police functions as a force in maintaining law and order especially in as much as it condemned alleged abuses of such powers.

This analysis will give a critical review of the judgment as well as the law that was applied, the rights to civil liberties, police authority and responsibility, and the independence of the judiciary in defining and protecting citizens’ rights about the powers of the state.

Facts of the Case

The case arises from an application in which the applicant Mr. Moyo was a victim of unlawful detention and faced physical and psychological abuse from the South African Police Service (SAP S). Mr. Moyo was arrested without a warrant, detained for several days and he was tortured and treated in degrading ways during his detention. He filed a civil lawsuit against the Minister of Police and, among other things, sought orders declaring his arrest and detention as unlawful, in defiance of the constitution and praying for an award of damages for the loss he bore.

Mr. Moyo’s matter was first considered in the High Court where it was held that his detention was unlawful and, thus, damages for the claim were awarded to him. The upshot of this was that the Minister of Police took an appeal to the SCA which, in turn, set aside the High Court decision mainly on the basis that the arrest was legal. The appellant, Mr. Moyo then sought a review of the above issue by the Constitutional Court as he considered the SCA’s decision erroneous.

Key Legal Issues

The Constitutional Court was tasked with addressing several legal issues central to police accountability and the protection of civil rights:

1. The Lawfulness of the Arrest and Detention: Whether the arrest and detention of Mr. Moyo without a warrant was legal or illegal depending on the legal provisions governing arrest and detention as provided in the Criminal Procedure Act (CPA) and whether the arrest and detention violated his constitutional law.[1]

2. Constitutional Rights Violation: Whether or not Mr. Moyo’s rights provided under the Constitution in sections 10 and 12 of the Constitution were violated by the police officers.[2]

3. Damages and Compensation: Whether physical and emotional harm for the unlawful conduct of the police included Mr. Moyo in the list of people who deserved to be compensated and how the assessment of damages should be done in cases where police officers transgressed the law.

The Appellants Argument

The appellant (Mr. Moyo) alleged that his arrest was unlawful for failure to conform to the Constitution and the Criminal Procedure Act because there was no legal cause or even reasonable suspicion to detain him. He stated that they had a violation of his rights to dignity, freedom, and security since he was tortured and treated in a degrading manner. Mr. Moyo claimed for pecuniary and non-pecuniary loss, including physical and psychological injuries, and postulated that an award of damages should also be preventative.

The Respondents Argument

The respondent (Minister of Police) further averred that arrest was lawful under section 49 of the Criminal Procedure Act warrantless arrest is allowable under some circumstances. They further argued that the police performed their constitutional duties and that no rights were infringed by the same. The respondent also argued that the High Court awarded trivial damages because they did not agree with the police’s actions, as they accepted that the police were lawful.

Judgment of the Court

In a unanimous decision in another case, the Constitutional Court made further comment when in the judgment delivered by Justice Madlanga declared that arrest as well as detention of Mr. Moyo was unlawful, and it violated his constitutional right.[3] The Court stated that the police have a constitutional responsibility to arrest people concerning the dignity and rights of other people and in this case, these responsibilities were cast aside.

Lawfulness of the Arrest

The Court reminded that according to the CPA, there are scenarios under which arrest is possible without a warrant which has to be done under the circumstances of the constitution.[4] The Court said there was no probable cause for the arresting officer in Mr. Moyo’s case to arrest him without a warrant hence, the arrest was unlawful. The Court observed that in section 12 of the Constitution, right to freedom and security of the person, it is unconstitutional to arrest any person, who has not been charged to stand trial.[5]

Violation of Constitutional Rights

An important factor that formed part of the judgment was the circumstances under which detainees were subjected to torture or treatment that amounts to torture such as in the case of Mr. Moyo.[6] The Court found that in Carrying out its investigations the police acted in a rebellious manner and conducted inhuman and degrading treatment of Mr. Moyo thereby breaching the provision of section 10 of the constitution.[7] And section 12(1)(d) which guarantees the right not to be subjected to any form of violence and torture.[8] The Court pointed out once again that the Constitution conceives it as the duty of the state to shield the individual from such abuses, and that this means, inter alia, protecting people from violence and degradation perpetrated by members of the law enforcement agencies.

Damages and Police Accountability

Thus, assessing the problem of damages the Constitutional Court restated that a person who suffered from the unlawful actions of the state is entitled to compensation.[9] In particular, the Court underlined that the award of damages should not be solely to reimburse and compensate the victim but also for preventive deterrence of the actions of the state officials.[10] Consistent with the criteria set out above, and applying the elements required under the Constitution and of general international law, the Court granted Mr Moyo substantial damages, for physical and psychological injury sustained, and damages for violation of his constitutional rights.

Legal Principles Applied

Several legal principles were central to the Court’s reasoning in this case:

1. The Principle of Legality: As the Court already pointed out, the use of public power should always be legal.[11] This includes the arrest powers of the police force, the power that must be exercised in a reasonable manner and consistent with the provisions of the CPA and the Constitution as well.[12]

2. The Right to Dignity: The Constitutional Court then paid much attention to the fundamental right of the South African Constitution, namely the right to dignity.[13] The police’s conduct in dealing with Mr. Moyo was found to have negated this right, and this contributes to the clarion call to see that state actors do not violate the inherent worth of persons.[14]

3. Police Accountability: The judgment underscored the fact that the state bears the responsibility for behaviour that breaches the law, including acts of the members of police service, amongst others.[15] It is crucial to keep police misconduct victims having chances to gain justice and to confine police accountability for misconduct.[16]

Civil rights and police accountability issues in finish extremist right-wing offline and online networks.

This is especially so in light of the recent decision in Moyo v Minister of Police, where civil rights and police accountability were issued.

Strengthening Constitutional Protections

The judgment also upholds the doctrine of the sanctity of the individual against the state the state might wield. It emphasizes that some conduct like police brutality is unconstitutional and, therefore unlawful. As for these rights, the Court has not changed the paradigm, focusing on the necessity to defend their violation by state agencies based on dignity, freedom, and security.

Deterrence of Police Misconduct

The Court awarded Mr. Moyo substantial damages to leave no doubt in anyone’s mind of the court's detest of the police conduct, particularly the actions that were demonstrated by the officers in this case. This aspect of the judgment seeks to discourage the police service from repeating such occurrences and seeks to challenge the police measures in place for preventing police misconduct.

Policing Police Authority

A thesis submitted in partial fulfilment of the requirements for the Juris Doctor Degree by Tiera M. Glover in March 2015.[17] The case highlights the importance of the judicial branch in monitoring the exercises of police authorities.[18] Thus, the willingness of the Constitutional Court to sanction the police officers for unlawful actions proves that the judiciary branch is the protector of people’s constitutional rights, and its duty is to compel the members of the authorities to obey the Constitution.

Broader Impact on State Liability

The judgment also has other consequences for the conditions of the state’s liability in the cases of unlawful actions by state representatives.[19] It reasserts the legal theory that the state is liable for the torts of its officers such that victims of the state’s misdeeds can seek recovery of their losses. This principle is crucial to enhance accountability in the state apparatus and make it more transparent.[20]

Conclusion

The Moyo v Minister of Police [2023] ZACC 17 is an important case in South African law that needs to establish institutionalized police accountability and citizens’ rights and freedom. The Constitutional Court’s judgment given out highlighted the proper understanding of community Police authority vis-a-vis community interests and the Constitution’s rights in as much as the regime established to uphold those rights and dispense order. I consider it as a significant illustration of WHERE AND WHEN the judiciary plays an important critical role in protecting the rights of a person from infringement by the state. It also carries many implications for police reform, state responsibility, and furthering constitutionalism within democracy.

BIBLIOGRAPHY

Glover, T. M., Policing Police Authority: A Thesis Submitted in Partial Fulfilment of the Requirements for the Juris Doctor Degree (March 2015).

Case Law

Moyo v Minister of Police (2023) ZACC 17.

Legislation

Constitution of the Republic of South Africa, 1996.
Criminal Procedure Act 51 of 1977 (South Africa).

References

[1] Moyo v Minister of Police (2023) ZACC 17

[2] Constitution of the Republic of South Africa, 1996, s 10.

[3] Moyo v Minister of Police (2023) ZACC 17

[4] Constitution of the Republic of South Africa, 1996, s.12.

[5] Criminal Procedure Act 51 of 1977 (South Africa).

[6] Moyo v Minister of Police (2023) ZACC 17

[7] Constitution of the Republic of South Africa, 1996, s 10.

[8] Criminal Procedure Act 51 of 1977 (South Africa).

[9] Moyo v Minister of Police (2023) ZACC 17

[10] Glover, T. M., Policing Police Authority: A Thesis Submitted in Partial Fulfilment of the Requirements for the Juris Doctor Degree (March 2015).

[11] Criminal Procedure Act 51 of 1977 (South Africa).

[12] Moyo v Minister of Police (2023) ZACC 17

[13] Criminal Procedure Act 51 of 1977 (South Africa).

[14] Moyo v Minister of Police (2023) ZACC 17

[15] Moyo v Minister of Police (2023) ZACC 17

[16] Glover, T. M., Policing Police Authority: A Thesis Submitted in Partial Fulfilment of the Requirements for the Juris Doctor Degree (March 2015).

[17] Glover, T. M., Policing Police Authority: A Thesis Submitted in Partial Fulfilment of the Requirements for the Juris Doctor Degree (March 2015).

[18] Moyo v Minister of Police 2023 ZACC 17

[19] Ibid

[20] Glover, T. M., Policing Police Authority: A Thesis Submitted in Partial Fulfilment of the Requirements for the Juris Doctor Degree (March 2015).