Durban — A South Coast man is in a legal scrap with the UK government over his “wrongful, malicious and without probable cause” arrest and detention for 46 days and their attempt to have him extradited.
Trevor Allan John Malone, 52, who previously lived and worked in the UK, served summons on the government of the United Kingdom of Great Britain and Northern Ireland for his supposed loss of dignity and freedom.
Malone’s damages claim totalled nearly R3 million, and the Minister of Justice and Constitutional Development of South Africa has been listed as the defendant in the matter.
The UK government objected to the summons with an exception, which is to claim that a matter does not have the required legal merit to proceed further.
It was their standpoint that the clauses of the Foreign States Immunities Act (FSIA), 87 of 1981 do not include the category of damages Malone claimed he suffered.
Acting Judge Immanuel Veerasamy dismissed the UK government’s grounds for exception when he handed down his decision at the Durban High Court in January. However, last week, Veerasamy granted the UK government leave to appeal against his judgment, and the matter will be heard in the Supreme Court of Appeal on an unconfirmed date.
Whether the court had the necessary jurisdiction to have made the January ruling was a key issue for the UK government in their leave to appeal application.
When handing down his judgment in January, Veerasamy said the jurisdiction exception became academic as the applicant's particulars of claim were adjusted, leaving only the exception related to damages for Veerasamy to rule on. Malone was granted leave to reside in the UK from February 21, 2014, until March 9, 2017, with Tier 2 general migrant status for skilled workers.
He was arrested in March 2015 on suspicion that he had prohibited content on his laptops. Malone, who worked as a software engineer, maintained that his work laptops were in the possession of previous employees before being handed to him, and pleaded not guilty to the charges brought against him. In June 2016 he decided to leave the UK and returned to KZN. This caused him to miss a court appearance, resulting in a warrant for his arrest being issued.
He was informed in writing on February 2, 2017, that his right to remain in the UK was revoked. A request was thereafter sent to South Africa’s Department of International Relations and Co-operation (Dirco) to extradite Malone according to the European Convention of Extradition. The direction Dirco received was that Malone must be arrested, detained and his bail attempts be opposed.
Accordingly, Malone was arrested on May 22, 2019, and his bail bid at the Umzumbe Magistrate’s Court (KZN South Coast) was blocked. He was eventually released on bail after 46 days of detention, while the UK government’s extradition application continued. The matter was set down for March 24, 2020, but, on the day, the UK government withdrew their application.
The UK government’s course of action (arrest and detention, opposing bail and extradition application after terminating his right to remain in the UK) prompted Malone’s compensation claim.
His claim comprised R2.3m for loss of dignity and freedom and discomfort, and nearly R600 000 for his legal costs with respect to bail.
Given the exception raised by the UK government, Veerasamy had to determine whether Malone’s claim, including legal costs, was covered by the FSIA, and if the court had jurisdiction to handle the damages claim. Malone’s legal team argued that international customary law had evolved, supported their client’s damages claim and was a part of SA law.
“Personal liberty is entrenched in our law and is guaranteed for every person in SA, according to the country’s Constitution,” said Veerasamy.
He said the UK government persuaded him to interpret a section of the FSIA in a “narrow sense”, in that only physical harm must be considered and not any other form of injury, including legal costs. After considering various instances of international case law, Veerasamy was convinced that the FSIA had “no internal limitation imposed on personal injury”.
“All recoverable loss or damage suffered by reason on a personal injury fall under the jurisdiction of the FSIA.”
Veerasamy said: “I am not persuaded that the use of the words ‘injury of any person’ in Section 6 of the FSIA limits Malone's claim to only physical injuries.” Regarding extradition being a sovereign act, Veerasamy ruled that it “cannot insulate alleged wrongful conduct which would have resulted in the impairment of a constitutional right”.
“Accordingly, this leg of the exception must fail.”
In addition, Veerasamy ruled that legal costs related to the alleged conduct of the defendant fell under the ambit of Section 6 of the act.
Sunday Tribune