Brand v Minister of Justice and Another

• Jurisdiction: South Africa
• Judge: Schreiner JA, De Beer JA, Beyers JA , Van Blerk JA and Ogilvie Thompson JA
• Judgment Date: 30 September 1959
• Citation: 1959 (4) SA 712 (A)
• Hearing Date: 23 September 1959
• Court: Appellate Division

Ogilvie Thompson, J.A.:

Appellant, a young man of twenty-nine years of G age, unsuccessfully sued respondents in the Witwatersrand Local Division for damages. His complaint, as set out in his declaration, was that at about 1 a.m. on 24th November, 1957, in a cafe called the Hamburger Hut situate in Claim Street, Hillbrow, Johannesburg, he was assaulted by second respondent who is a detective constable in the South African Police. The assault, according to the declaration, took the form H of appellant's being forcibly pulled off a stool and propelled out of the cafe. The declaration then went on to aver that 'shortly thereafter' second respondent wrongfully and unlawfully took appellant to the Hospital Hill police station and there caused him to be imprisoned and detained. Respondents' plea, as amplified by further particulars, denied appellant's allegations, and averred that on the occasion in question second respondent arrested appellant inside the

Ogilvie Thompson JA

Hamburger Hut for the offence of creating a disturbance therein, and that, pursuant to this arrest, appellant was lawfully held in custody at the Hospital Hill police station until approximately 11.20 a.m. on the 24th November, 1957. First respondent further pleaded that, in effecting A the arrest, second respondent was not acting as a servant of first respondent, but was executing a statutory duty. In response to a request for additional particulars, respondents stated that appellant had been arrested because he had, in the Hamburger Hut, contravened by-law 76 of the Johannesburg Traffic By-laws. This by-law, the validity of which was not questioned before us, reads, so far as is material to this appeal, as follows:

B 'Disturbing the public peace.

(a)

No person shall disturb the public peace by making noises or by shouting, roaring, wrangling, quarrelling . . . or by any riotous, violent or unseemly behaviour by day or night, in any public or private place, or premises or on any street'.

C At the trial the only witnesses called in relation to the happenings at the Hamburger Hut were appellant and second respondent. For the defence, three policemen testified as to what occurred when second respondent brought appellant to the Hospital Hill police station: appellant called a doctor - who described certain bruises on appellant's upper arms - and his attorney, who deposed to the condition next day of the D blazer worn by appellant on the night in question. The trial Court found that appellant had, in the presence of second respondent, contravened the above-cited by-law in the Hamburger Hut; that second respondent had there arrested appellant; and that the arrest, and subsequent detention, of appellant were not unlawful. It, accordingly, gave judgment for the defence with costs. Appellant now appeals to this Court.

E As the learned trial Judge clearly recognised, the correct decision of the case vitally depended upon a determination of what had actually occurred at the Hamburger Hut. That was, of course, essentially a question of fact: and, as might be expected, the versions given in F evidence by appellant and second respondent regarding that question were widely divergent. Second respondent justified his action in admittedly arresting appellant without a warrant by relying upon sec. 22 (1) (a) of Act 56 of 1955 which authorises a peace officer to arrest, without warrant, 'any person who commits any offence in his presence'. It was conceded by counsel for respondents in this Court that the onus G of establishing that an offence was committed in his presence rests upon the peace officer who relies upon the above-cited sec. 22 (1) (a) of the Code. This concession was, in my opinion, rightly made. For that view of the onus, which has been taken in Provincial Divisions (see e.g. R v Henkins, 1954 (3) SA 560 (C); Rosseau v Boshoff, 1945 CPD 135 at H p. 137; R v Folkus, 1954 (3) SA 442 (SWA) at pp. 445/6), accords with principle and is in conformity with what was said by this Court in Union Government v Bolstridge, 1929 AD 240 at p. 244, and in Tsose v Minister of Justice and Others, 1951 (3) SA 10 (AD) at p. 18).

Mr. Kotze developed his argument for appellant around the basic submission that the learned trial Judge had incorrectly placed upon appellant the onus of showing that he had not committed any offence

Ogilvie Thompson JA

in the Hamburger Hut. The learned...