Minister of Safety and Security v Tyulu

• Jurisdiction: South Africa
• Judge: Farlam JA, Van Heerden JA, Mhlantla JA, Bosielo AJA and Tshiqi AJA
• Judgment Date: 27 May 2009
• Docket Number: 327/2008
• Hearing Date: 07 May 2009
• Counsel: DJ Jacobs and GR Papier for the appellant. W King and P Torrington for the respondents.
• Court: Supreme Court of Appeal

Bosielo AJA:

[1] The respondent (Mr Tyulu) instituted an action against the appellant in the Cape of Good Hope Provincial Division, claiming damages in the sum of R400 000 for unlawful arrest and detention. The High Court awarded him damages in the total amount of R280 000. On appeal, the D full bench overturned the court a quo's finding on the merits regarding the second arrest and detention. Concerning the first arrest, the full bench confirmed the judgment on the merits but reduced the amount of damages to R50 000. This appeal, which is by special leave of this court, is against the judgment of the full bench. D

[2] The facts of this case are neither complex nor controversial. The respondent is a 48-year-old magistrate stationed at the Cape Town Magistrates' Court. At the time of this incident, he had been a magistrate for 12 years and was performing his duties in the Juvenile Court in Cape Town. F

[3] According to the respondent, in the early hours of the morning on Sunday 12 October 2003 he left his home on foot to go to a nearby filling station on Bosmansdam Road in Milnerton to buy a soft drink. There is a 24-hour convenience store with an ATM machine at this filling station. He estimates the walking time from his home - which is in Elegance G Road - to the filling station to be five to seven minutes. As he was walking across the forecourt of the filling station en route to the store, a vehicle stopped next to him. Two people (later identified to be police officers) alighted, grabbed him and put him into the back of this vehicle. Upon his enquiry regarding the reason for his arrest, a police officer H whom he later identified as Captain Cordier told him that he was being arrested for being drunk in public. They then drove with him to a point near the Shoprite Centrepoint Shopping Centre on Koeberg Road. During this journey he was seated in the back seat with a police officer, who was holding his head down.

[4] Upon arrival at what he later came to know to be the scene of a I motor-vehicle collision near Shoprite Centrepoint, Captain Cordier alighted and called a person over to the vehicle. Whilst the respondent remained seated in the vehicle, this person (later identified to be Mr Hendricks) said 'ja, it is him', in response to a question posed to him by Captain Cordier. As the respondent was sitting with his head pressed J

Bosielo AJA

A down, he was unable to see this person but he heard him saying that he (Tyulu) 'was the person who drove the car that was standing there'. He denied that he had driven the vehicle in question, but his protestations fell on deaf ears. He was then transported to the Milnerton Police Station where he was charged with and detained for driving a motor B vehicle on a public road whilst under the influence of intoxicating liquor.

[5] It is common cause that whilst at the police station, the respondent was examined by Dr Nel, the district surgeon, who also took a sample of his blood. This examination lasted from 02h44 to 03h07. By mutual agreement, Dr Nel's report was admitted into the record of the C proceedings. Dr Nel recorded in his report, amongst other things, that the respondent was moderately under the influence of alcohol and further that it was possible that he had been under the influence of alcohol during the incident, which he (Dr Nel) had been told occurred at 02h10. Furthermore the forensic report of the blood analysis was also admitted by mutual agreement. According to this report, the concentration D of alcohol in the respondent's blood on the night in question was 0,23 grams per 100 millilitres.

[6] Although the respondent admitted that he had consumed six beers during the course of the Saturday evening and early hours of the Sunday morning, he denied that he was drunk. He testified that he did not cause E any danger or disturbance or nuisance to anybody. According to the respondent, he was ultimately detained in the cells at Milnerton Police Station for drunken driving. He was released on his own recognisance the following day by one Inspector Papa, the investigating officer in the matter.

F [7] Three witnesses testified on behalf of the appellant, viz Superintendent Cordier, Inspector Dell and Mr Hendricks. Cordier testified that he has been a police officer for 21 years and a captain for seven years at the Milnerton Police Station. He, together with (female) Inspector Dell, were doing patrol duties on 12 October 2003 when they came upon the scene of a motor-vehicle collision on the corner of Koeberg and De G Grendel Roads in Milnerton. Upon further enquiry, Cordier was advised that the driver of the vehicle which had caused the collision had fled the scene on foot in the direction of Milnerton Police Station. Mr Hendricks, the driver of the other car involved in the collision, described the driver who fled as a black man, wearing long khaki shorts and spectacles.

H [8] Cordier, together with Dell, then proceeded in the direction which was pointed out to them in search of the driver, turning into Bosmansdam Road from Koeberg Road. Approximately 300 m along Bosmansdam Road but before the Corsair Road intersection, Cordier saw a man (now known to be the respondent) walking in the middle of the road, I moving in the face of oncoming traffic. He stopped his vehicle and called the respondent over. Instead of obliging, the respondent asked him what he wanted and requested...