In Minister of Home Affairs v Rahim & Others the Constitutional Court had to determine when the breach of a public duty is “wrongful” for the purposes of, and gives rise to, a delictual claim against the government.
After their applications for asylum were rejected, 15 foreign nationals were arrested and detained under the Immigration Act 1998. They sued the Minister of Home Affairs for damages alleging that their detention was unlawful according to section 34(1) of the Act, which permits an immigration officer to arrest an “illegal foreigner” and to detain him “in a manner and at the place… determined by the Director-General” of the Department of Home Affairs. They were detained in prisons and at police stations (for periods ranging between 4 and 35 days) which were not places determined by the Director-General. The Director-General had not made any determination.
The court is required to make a value judgment.
The Constitutional Court judgment explains that, although a breach of public duty does not automatically result in an action for damages, liability will follow where the breach is considered to be wrongful. Whether or not conduct is wrongful is a question of public or legal policy i.e. would public policy dictate that the conduct complained of should attract liability for the harm suffered by the respondents?
In considering whether conduct is wrongful the court is required to make a value judgment. It weighs up the interests of the parties and of the community at large against the background facts and circumstances. The court must impartially and objectively apply the values of justice, fairness and reasonableness, while taking into account considerations of good faith and public policy reflecting the legal convictions of the community.
The ultimate question is therefore whether it is reasonable to impose liability in a particular case.
The Court found for the refugees based on the following:
- Although the refugees were in the country illegally, they are amongst the most marginalised and vulnerable members of society. They have no political or social influence and are unlikely to have access to courts for a delictual claim for damages during the time that they are awaiting deportation.
- There were no government policy considerations or interests which would outweigh the interests of the refugees.
- Section 12(1)(a) of the Constitution guarantees everyone the right not to be deprived of freedom arbitrarily or without just cause. Any interference with a person’s liberty is unlawful unless there are good grounds to justify it. The fact of detention and the place of detention are inextricably linked. Therefore as long as a person is detained in a place not permitted by law, his or her confinement is unlawful. Public policy dictates that a delictual action should be recognised in this instance.