Court — Judicial officer — Liability of — Vicarious liability — For negligence whilst performing judicial functions — For reasons of public and legal policy, magistrate’s negligent conduct not regarded as wrongful — No liability attaching to magistrate in that regard and therefore Minister of Justice not vicariously liable either.

The two respondents were arrested on charges of assault with intent to do grievous bodily harm, the unlawful possession of a firearm, and pointing a firearm. When their case was called at their first appearance in court the magistrate abruptly adjourned the proceedings and left the courtroom followed by the prosecutor. The respondents saw the magistrate talking to the prosecutor in the corridor. When the magistrate came back into court she told the respondents that one of the charges they were facing was armed robbery and that they therefore had to bring a formal bail application. They attempted to explain that this was not correct but the magistrate merely told them that they should speak to the senior public prosecutor who was not in court at the time. They were remanded in custody. On the following day their attorney made an attempt to persuade the magistrate that the charge was incorrect but she would not hear his argument. The respondents were then released after having spent six days in custody. They instituted action against the complainant who had laid the charges, the Minister of Safety and Security, the Minister of Justice, and the investigating officer in his personal capacity.

The High Court held that the respondents’ detention was unlawful and awarded damages against the complainant who did not pursue an appeal against the accused. The court also found that the magistrate had interfered maliciously and intentionally in the formulation of the charge and held the Minister of Justice vicariously liable on this basis. The court also held the Minister of Safety and Security and the investigating officer jointly and severally liable and awarded the respondents damages in the amount of R250 000 each. The ministers and the investigating officer appealed against the award.

The court on appeal held that the court a quo’s finding of liability against the Minister of Safety and Security had to stand but held that on the evidence, the decision that the magistrate had maliciously altered the charges could not be sustained.

As to the issue of whether the magistrate had been negligent, the court held that the magistrate had been grossly negligent in ignoring the respondents and their attorney and it was as a result of her failure to pay attention to the concerns raised with her that led her to order the continued detention of the respondents.

The court held, however, that a magistrate was not liable for his or her negligent conduct when performing his or her judicial functions, because, for reasons of public and legal policy, his or her conduct was not regarded as wrongful. The fact that the magistrate was immune from liability for his or her negligent conduct meant that there was no basis to hold any other party vicariously liable for such negligent conduct.
The court was of the opinion that the amount of R250 000 awarded by the High Court was disproportionate and it reduced the amount to R120 000 in respect of each respondent.