Damages for wrongful arrest, detention and malicious prose­ cution in Swaziland: Liability issues

Abstract

This article draws from a wealth of unreported cases decided in the Kingdom of Swaziland in the past two decades relating to the deprivation of personal liberty, human dignity and other fundamental rights infringements arising from wrongful arrest, unlawful detention and malicious prosecution. It investigates and analyses the relevant constitutional rights and the statutory processes, the breaches of which constitute the common law ingredient of wrongfulness, upon which liability in delict is based. An attempt is made to state the contemporary law of arrest, detention and malicious prosecution in Swaziland in a nutshell, starting with the breakdown of the constitutional and delictual frameworks which necessarily leads to the discussion of the fundamental rights to personal liberty and the right to be brought before court without undue delay implicated in Army Commander v Bongani Shabangu [2012] SZSC 19; the constitutional right to human dignity and the delictual bases for the plaintiff’s cause of action in Government of Swaziland v Ngomane [2013] SZSC 73. The enquiry then proceeds to the discussion of the following issues: whether the arresting officer had reasonable suspicion to arrest; whether there was a prosecution; whether the prosecuting officer had reasonable and probable cause to prosecute, and whether the malice element was present to prove malicious arrest or malicious prosecution. Comparative materials are introduced in instances to broaden the discussion and highlight analogous developments elsewhere, while bearing in mind that the primary object of the investigation is to focus solely on the developments in Swaziland.