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The Western Cape High Court has dismissed a claim for damages brought by the parents of a 21-month-old girl against the minister of police and the SAPS after their arrest during the Covid-19 lockdown.
The parents, who were arrested on Muizenberg Beach on May 4 2020 in a case that attracted public attention, had sought damages totalling just over R1m, alleging that their arrest for being on the beach was unlawful, malicious and a violation of their constitutional rights to dignity and freedom.
The couple claimed they were walking on the beach boardwalk when their daughter unexpectedly ran onto the sand.
They argued that their entry into the prohibited beach area was a brief, necessary act to retrieve their child and that the subsequent arrest was an irrational exercise of police power.
The parents instituted two claims against the defendants.
Claim A was for damages arising from their unlawful arrest and detention and breach of their constitutional rights. They pleaded that police officers witnessed the incident, but despite this, two police officers wrongfully and unlawfully arrested them for contravening the lockdown regulations.
The arresting officers put the father in the back of a police vehicle along with other detainees. The claim was that police officers did not wear suitable masks and did not ensure that the other detainees were wearing suitable masks.
The father was transported to Muizenberg police station in the police van, and the mother and their daughter were transported in a separate police vehicle.
Claim B was for malicious and wrongful legal proceedings. The parents pleaded that the arresting officer unlawfully and maliciously processed and charged them for contravening the lockdown regulations.
They said when processing and charging them, the police officers had no reasonable or probable cause for doing so.
The minister and the SAPS pleaded that the parents and the child were not walking along the boardwalk alongside the beach but were found seated on the beach 200m away, playing with their daughter.
Despite their knowledge of a lockdown regulation that prohibited anyone from being on a beach, the parents failed to comply with the regulation and level 4 lockdown restrictions.
The defendants argued the police officers approached the couple and informed them that they were contravening the regulations and afforded them an opportunity to provide reasons for the contravention. However, no reasons were forthcoming.
The father became argumentative and was subsequently cautioned by the arresting officer that his conduct was tantamount to resisting arrest and could lead to additional charges. The parents were then arrested for contravening the regulations.
In her judgment on Tuesday, judge Mas-udah Pangarker rejected the parents’ version of events.
She found that the police were legally justified in their actions and were fulfilling their duty to enforce lockdown regulations intended to curb the spread of the coronavirus.
“Having regard to the views of the plaintiffs, the impression created is that the police should simply have looked the other way or let them off the hook,” Pangarker said.
“While I appreciate that the regulations brought about severe restrictions upon everyone, the police were still required to act in terms of the constitution.”
The judge said had this incident occurred before or after the national state of disaster, there would have been no action for unlawful arrest and detention.
Pangarker said, however, the incident occurred during the level 4 lockdown, which made being on a beach, one of the prohibited areas, a criminal offence punishable by law.
The judge said that having regard to the evidence, the applicable authorities and probabilities, she was satisfied that the arresting officer exercised his discretion to arrest rationally.
The judge found the parents had failed to discharge the onus on them to prove that the arresting officer exercised his discretion to arrest improperly or irrationally.
“The evidence indicates that [the arresting officer] informed the plaintiffs that he was arresting them for breaching the lockdown regulations in that they were on a beach. Both plaintiffs understood this, though it took some time for these admissions to be made in the trial.”
The judge said the plaintiffs have failed to make out their claims for damages based on unlawful arrest and detention, a breach of constitutional rights and malicious and wrongful legal proceedings.
She ordered them to pay the costs of the minister and the SAPS.
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