A magistrate who ordered police to arrest and detain a father for offering to pay R300 for child maintenance has been found to have acted maliciously. Thabo Masia was told by the magistrate to go and think about his R300 offer ‘clearly and thoroughly’ in the police cells. The Star reports that having been detained in 2013 from about 1.45 pm, Masia was released from custody at about 10 am the next day. He was released after he increased his child maintenance offer to R700.
Masia sued the Ministers of Justice & Constitutional Development and Police for being arrested without a warrant and for being detained despite not being charged or found guilty of any offence. Another magistrate ruled in favour of Masia’s application in 2018 and awarded him R75 000. But the Ministers took the matter to the Gauteng High Court (Pretoria) in an appeal application, which has now been dismissed by Acting Judge CN van Heerden and Judge Vuyelwa Tlhapi. ‘We concur that the respondent was unlawfully arrested and detained for one day by members of the SAPS and that the entrenched constitutional rights of the respondent were breached,’ they said. ‘The respondent was arrested without a warrant, he was not charged with any offence, nor was he found guilty of any offence. The arrest took place in full view of his colleagues.’
The Justice Ministry sought to appeal on an argument that it could not be compelled to pay up for decisions that a magistrate discharged while exercising his judicial discretion. Further, the Ministry submitted that the magistrate should have been found to have acted negligently and not maliciously. The Star says the judges shot down these arguments, finding that the magistrate had acted maliciously and in his capacity as a state employee. ‘The bullying tactic of detaining the respondent without a warrant of arrest is a clear abuse of judicial power and malicious. In the result, we find that the magistrate acted maliciously.’ As a result, the department will have to pay all the R75 000, plus an annual interest rate of 10.25% calculated from November 2018.