De Koker v Minister of Safety and Security

• Jurisdiction: South Africa
• Judgment Date: 13 August 2010
• Citation: 2010 (2) SACR 595 (KZD)

De Koker v Minister of Safety and Security
2010 (2) SACR 595 (KZD)

2010 (2) SACR p595

Citation	2010 (2) SACR 595 (KZD)
Case No	5676/2007
Court	KwaZulu-Natal High Court, Durban
Judge	D Pillay J
Heard	July 19, 2010
Judgment	August 13, 2010
Counsel	KC McIntosh for the plaintiff.; S Jikela for the defendant.

Flynote : Sleutelwoorde

Arrest — Legality of — Arrest without warrant — Police arresting and detaining plaintiff on suspicion of drunken driving — Suspicion proving to be groundless — Embellishing evidence to suggest other driving offences by plaintiff — Police not in uniform and driving unmarked vehicles — Failing to F identify themselves clearly to plaintiff — Police unreasonably rejecting plaintiff's explanation for failure to stop — Police's conduct unreasonable and disproportional — Arrest, detention and charging of plaintiff unlawful.

Damages — For unlawful arrest and detention — Police arresting and detaining plaintiff on suspicion of drunken driving — Suspicion proving to be groundless — Embellishing evidence to suggest other driving offences by plaintiff G — Police unreasonably rejecting plaintiff's explanation for failure to stop — Police's conduct unreasonable and disproportional — Defendant liable to pay damages to plaintiff's person and property.

Headnote : Kopnota

The plaintiff sued the defendant for damages for unlawful arrest and detention, H and for damages caused to his vehicle and that of a third party, with which he had collided. The suit arose from an incident in which the plaintiff, believing himself to be the victim of a hijacking, drove away from a group of police officers before coming to a halt after colliding with another car in an intersection. He was arrested on suspicion of driving under the influence of alcohol, released the same night on bail, and appeared the following day I in court, whereupon all charges were withdrawn. A number of issues arose for determination: had the plaintiff proceeded through a red traffic light and almost collided with the defendant's vehicle; had the police officers identified themselves to the plaintiff when they initially stopped him; had the plaintiff then driven through several red traffic lights before colliding with the third party's vehicle; was the police officers' suspicion, that the plaintiff was under the influence of alcohol, reasonable; was their rejection J

2010 (2) SACR p596

A of his explanation, that he had believed that he was being hijacked, reasonable; and was the police's conduct at all times reasonable and justifiable?

Held, that the police officers who had testified on behalf of the defendant had contradicted themselves and each other in several material respects, particularly between their statements and their oral testimony. None of the B statements mentioned the fact - stressed in oral evidence - that the plaintiff had driven through red traffic lights. This allegation was an embellishment aimed at criminalising the plaintiff's conduct and thereby justifying the police's behaviour once they had realised that the drunken driving charge would not hold. As to whether the plaintiff had almost collided with the defendant's vehicle, only one officer mentioned this; at best for the defendant, C the question was inconclusive. However, despite the weaknesses in the defendant's case, it was clear that the plaintiff's driving, at the point where the police had first seen him, was such as to cause them to be suspicious of him. And it was to be accepted that they had a duty to pursue the plaintiff and to investigate his conduct. (Paragraphs [28]–[36] at 601e–602f.)

Held, further, that, at the point where the police first stopped the plaintiff, two of D them had identified themselves as police officers, but they had failed to communicate this clearly to him; their conduct had instilled fear, instead of reassurance. Furthermore, the fact, that the police had boxed in the plaintiff's vehicle with their own vehicles, had fortified his belief that he was being hijacked. (Paragraphs [39]–[41] at 602i–603c.)

Held, further, that it was common cause that the plaintiff had manifested none of E the typical signs of having consumed alcohol. Furthermore, the hesitant tone in which the police had testified about the plaintiff having been under the influence signalled that they knew that their suspicion had been baseless. Their rejection of the plaintiff's explanation - that he had believed he was being hijacked - was unreasonable. The explanation was consistent with his conduct preceding the crash, and it had appeared to one officer that F the plaintiff had been heading to a police station. It had not been reasonable or proportional for three unmarked police cars to pursue an old sedan through suburban streets to effect an arrest for drunken driving; such a 'car chase' was probably as risky as drunken driving itself. Furthermore, they could have employed less risky procedures, such as summoning help from a marked police vehicle. After stopping the plaintiff they could have been in G no doubt that he had honestly believed that he was being hijacked; and they could not have remained under the impression that he was drunk. However, instead of apologising and trying to remedy the damages, they had compounded their liability by arresting and detaining him on spurious charges. With the exception of their initial suspicion and their pursuit up to the point where the plaintiff had first stopped, the police's conduct had been H unreasonable and disproportionate, and the arrest, detention and charging of the plaintiff had been unlawful. (Paragraphs [42]–[51] at 603d–605d.) Plaintiff's claim upheld with costs.

Annotations:

Cases cited

Reported cases

Southern Africa

April v I Minister of Safety and Security 2009 (2) SACR 1 (SE) ([2008] 3 All SA 270): referred to

Ex parte Minister of Safety and Security and Others: In re S v Walters 2002 (2) SACR 105 (CC) (2002 (4) SA 613; 2002 (7) BCLR 663): referred to

Le Roux v Minister of Safety and Security and Another 2009 (2) SACR 252 (KZP) J (2009 (4) SA 491): referred to

2010 (2) SACR p597

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A): referred to A

Minister of Safety and Security v Tyulu 2009 (2) SACR 282 (SCA) (2009 (5) SA 85; [2009] 4 All SA 38): referred to

Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56 (CC) (2007 (10) BCLR 1102): referred to

Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ) (2009 (6) SA 82): referred to B

Newman v Prinsloo and Another 1973 (1) SA 125 (W): referred to

Oliver v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) (2009 (3) SA 434): compared

R v Oosthuizen 1961 (1) SA 604 (T): referred to

Rudolph and Others v Minister of Safety and Security and Another 2009 (2) SACR 271 (SCA) (2009 (5) SA 94; [2009] 3 All SA 323): referred to C

S v Nel and Another 1980 (4) SA 28 (E): referred to

Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) (2008 (4) SA 458): referred to.

Canada

Ward v D Vancouver (City) [2009] 186 CRR (2d) 1: referred to.

Unreported cases

Ngamekam v Minister of Safety and Security 2009 JDR 0691 (ECP) (2009 JOL 23874): referred to

Sydney v Minister of Safety and Security 2010 JDR 0278 (ECG): referred to

Walters v Minister of Safety and Security of the Republic of South Africa 2009 JDR 0648 (KZD): referred to. E

Case Information

Action for damages for unlawful arrest and detention. The facts appear from the judgment of D Pillay J.

KC McIntosh for the plaintiff. F

S Jikela for the defendant.

Cur adv vult.

Postea (August 13). G

Judgment

D Pillay J:

Introduction

[1] Hijacking occurred frequently in Pinetown, a police officer testified H for the defendant, the Minister of Safety and Security. The plaintiff, Theodore de Koker, a 52-year-old, self-employed male, honestly believed he was being hijacked when he drove away from unmarked vehicles driven by people dressed in civilian clothes and bearing firearms. Those pursuing the plaintiff later turned out to be police officers. They suspected that the plaintiff had broken the law. Their pursuit resulted in I the plaintiff crashing into a VW Golf.

[2] The plaintiff claims damages from the defendant in the amount of R260 260,64 for unlawful arrest and detention, which resulted in emotional shock and distress, and for damages to his Opel Monza and the Golf. J

2010 (2) SACR p598

D Pillay J

The plaintiff's version

[3] The A plaintiff was the registered owner and driver of the white Monza, registration No NPN 38277. On 21 December 2006, at about 20h00 and at Pinetown, he was driving along Fields Hill after picking up his niece from choir practice at Kearsney College. In his vehicle were his B niece and her boyfriend in the back seat. In the front passenger seat was his 9-year-old son. He approached the intersection of Fields Hill and Richmond Road cautiously, as the robot was red. His car skidded over gravel near the intersection.

[4] He stopped before the white stop line, reversed for about 3 - 4 m to C avoid the gravel and waited until the robot turned green. He then proceeded, turning right into Richmond Road.

[5] A vehicle approached him at speed from behind. His niece shouted to him that they were being hijacked. He calmed her down, saying that the other driver was being silly and having fun. However, he became D alarmed when another white vehicle drew up alongside him, and a white bakkie drove in front of his vehicle and boxed him in.

[6] They forced him to stop at the kerb near a BP service station. By that stage his...