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Botha v Minister of Safety and Security and Others, January v Minister of Safety Security and Others (575/09, 576/09 ) [2011] ZAECPEHC 12

28th April 2011

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  • Botha v Minister of Safety and Security and Others, January v Minister of Safety Security and Others (575/09, 576/09 ) [2011] ZAECPEHC 12
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Both plaintiffs have sued the defendants for unlawful arrest and detention. The subject of this exception taken by the first defendant against the plaintiffs’ particulars of claim is that they lack averments necessary to sustain a claim or that they are vague and embarrassing. Defendants have contended that our common law does not include a duty on the police official investigating the case to inform the relevant prosecutor that there were no grounds or justification for the plaintiffs’ continued detention and indeed no objective facts reasonably linking the plaintiffs to the murder charge against them. It is their further contention that there is no legal duty on the investigator outside of placing a fair and honest statement of the relevant facts before the prosecutor to make representations regarding the grounds or justification for the further detention of the plaintiffs. The Court held that there is a Constitutional duty on the police officers and public prosecutor(s) who are handling the case to ascertain the reasons for the further detention of the suspect and the prosecutor has to place such reasons or lack thereof before Court.


The Court held that the plaintiffs’ particulars of claim do not lack averments necessary to sustain a claim and are not vague and embarrassing. Exception was dismissed with costs.

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