Minister of Safety and Security v Glisson

• Jurisdiction: South Africa
• Judge: Jones J and Pickering J
• Judgment Date: 27 October 2006
• Citation: 2007 (1) SACR 131 (E)
• Docket Number: 189/2006
• Hearing Date: 20 October 2006
• Counsel: A Beyleveld (with F Menti) for the appellant. P H Mouton (with M Badenhorst) for the respondent.
• Court: Eastern Cape Division

Minister of Safety and Security v Glisson
2007 (1) SACR 131 (E)

2007 (1) SACR p131

Citation	2007 (1) SACR 131 (E)
Case No	189/2006
Court	Eastern Cape Division
Judge	Jones J and Pickering J
Heard	October 20, 2006
Judgment	October 27, 2006
Counsel	A Beyleveld (with F Menti) for the appellant.; P H Mouton (with M Badenhorst) for the respondent.

Flynote : Sleutelwoorde B

Arrest — Arrest without warrant — Criminal Procedure Act 51 of 1977, s 40(1)(a) — Police officer did not see alleged criminal offence himself — No direct personal knowledge of alleged offence — Relied on another's report — Not in position to decide if offence committed — Risk of improperly depriving person of liberty — Arrest not justified within meaning C of s 40(1)(a) — Award of damages confirmed.

Liquor offences — Drunkenness in or near any road, street, thoroughfare, in contravention of s 59(1)(d)(i) of Eastern Cape Liquor Act 10 of 2003 — Respondent, arrested by police for contravening s 59(1)(d)(i), on basis of throwing beer bottle at police vehicle from pavement while D intoxicated — Word 'thoroughfare' in context of that subsection to be interpreted as including walkway adjacent to road.

Headnote : Kopnota

The appellant appealed against a judgment in a magistrate's court in which the respondent's claim for damages for wrongful and unlawful arrest had been upheld. The respondent had been arrested without warrant by the police for E throwing a beer bottle at a police vehicle from the pavement while intoxicated, in contravention of s 59(1)(d)(i) of the Eastern Cape Liquor Act 10 of 2003. The court a quo held that the respondent had not contravened s 59(1)(d)(i), as he had been on the pavement and not 'in or on any road, street, lane, thoroughfare, square, park or market' as required by the section. The court a quo had further found that the evidence fell short F of proving that the respondent had committed the offence in the presence of the police officer who arrested him, within the meaning of s 40(1)(a) of the Criminal Procedure Act 51 of 1977.

Held, that s 59(1)(d)(i) does not expressly require the person to be on the trafficable surface, since the plain meaning of the word 'thoroughfare' includes a walkway adjacent to a road. Therefore, the respondent's conduct G was committed in or on a road, street or thoroughfare, in contravention of the section. (Paragraph [3] at 132i - 133a.)

Held, further, however, that the arrest could not be justified by s 40(1)(a), because the arresting officer did not himself see the respondent throw the bottle and had no direct personal knowledge of the incident, with the result that the offence had not been committed in his presence, as required by the H section. (Paragraph [4] at 133b - g.)

Held, further, that if an arresting officer relies on another's report of the alleged criminal conduct, there is always the risk of improperly depriving a person of his liberty, because, where he does not have personal knowledge of the alleged offence, he is not properly in a position to decide if an offence has really been committed. (Paragraph [5] at 133h - 134e.) I

Held, further, that where there is an even balance between the protection of individual liberty and avoidance of unnecessary restriction on the police, the scales will fall on the side of individual liberty. The police should not lightly arrest without warrant. If a policeman does not witness criminal conduct himself, he should always be alive to the need for a warrant. (Paragraph [6] at 134f - g.) Appeal dismissed. J

2007 (1) SACR p132

Annotations:

Cases cited

Reported cases

Areff v Minister van Polisie 1977 (2) SA 900 (A) at 908 in fine - 909A: applied A

Gulyas v Minister of Law and Order 1986 (3) SA 934 (C): referred to

Minister of Justice and Others v Tsose 1950 (3) SA 88 (T): referred to

Moses v Minister of Law and Order 1995 (2) SA 518 (C): referred to B

R v Kleyn 1937 CPD 288 at 292: applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 40(1)(a): see Juta's Statutes of South Africa 2005/6 vol 1 at 1-333

The Eastern Cape Liquor Act 10 of 2003, ss 50 (1)(d)(i) and 59(1)(d)(i). C

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

A Beyleveld (with F Menti) for the appellant.

P H Mouton (with M Badenhorst) for the respondent. D

Cur adv vult.

Postea (October 27).

Judgment

Jones J:

[1] This is an appeal against the judgment of the magistrate of Uitenhage awarding damages E to the respondent in the sum of R15 000 for wrongful arrest and imprisonment.

[2] The undisputed evidence showed that on 16 December 2004 the F respondent was arrested without warrant by two members of the South African Police Services for being drunk and disorderly in contravention of s 59(1)(d)(i) of the Eastern Cape Liquor Act 10 of 2003. That section provides that no person may be drunk and disorderly in or on any road, street, lane, thoroughfare, square, park or market. The police case was that the arrest and detention were justified by the provisions of G s 40(1)(a) of the Criminal Procedure Act 51 of 1977 which empower a peace officer to arrest without warrant any person who commits or attempts to commit an offence in his or her presence. The policeman involved testified that the respondent had committed an offence in his presence by throwing a bottle of beer at the police vehicle while in a state H of intoxication. The magistrate nevertheless held that the Minister of Police had failed to discharge the onus of proving lawful justification for...