Attorney wins right to sue for ‘illegal arrest and detention’
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Cape Town - A Western Cape High Court judge has ruled that the Transport and Public Works MEC and the Police Minister can be sued in the matter of attorney Hymie Zilwa, who claims he was unlawfully arrested and detained for seven hours by traffic officers, allegedly for speeding.
Zilwa had brought a suit against both the MEC and the Minister for unlawful arrest and for special and unspecified general damages suffered as a result of the arrest and subsequent detention.
However, both the MEC and the Minister had opposed the action.
Both claimed that the particulars of Zilwa’s claim were “vague and embarrassing” while Zilwa countered that the exceptions filed against him by the two defendants were not properly signed.
Zilwa, who practices as an attorney in the Eastern Cape, claimed that his arrest by provincial traffic officers for allegedly exceeding the speed limit while driving in the agricultural town of Laingsburg in 2019 was unlawful, as was his detention by the police from 5pm until 11pm before he was released.
According to Zilwa, both the MEC and the Minister are liable under the State Liability Act “for the unlawful and wrongful conduct of their employees’ whilst acting in the course and scope of their employment.”
Judge Derek Wille ruled that despite the objections put to the court by the MEC and the Minister, Zilwa was free to decide the extent of his claims and against which of the two he was making a claim.
The MEC and the Minister had argued that Zilwa had not made it clear whether he was suing the provincial traffic police or the SAPS, but Judge Wille said the claim was clearly against the provincial traffic police for the arrest and the SAPS for the detention.
Judge Wile said: “The fact that Zilwa has not cited a particular person does not necessarily make his claim the subject of an exception.”
In his decision Judge Wille said: “I am of the considered view that the particulars of claim, as formulated, disclose a valid and proper cause of action against the defendants and I am also of the view that the particulars of claim are not vague and embarrassing."
"Put in another way, the defendants know exactly what case they have to meet at the trial,” said Judge Wille.