Minister of Safety and Security v Du Plessis

• Jurisdiction: South Africa
• Judge: Jones J and Dambuza J
• Judgment Date: 02 July 2009
• Citation: 2010 (1) SACR 49 (ECG)
• Docket Number: CA 28/09
• Hearing Date: 19 June 2009
• Counsel: A Beyleveld (with E Menti) for the appellant. NM Paterson for the respondent.
• Court: Eastern Cape Division

Jones J:

[1] On 26 November 2005 Inspector S Martin of the South African F Police Services, Uitenhage, arrested the respondent (the plaintiff a quo) and his companion, one Nugget, on a charge of being drunk and disorderly in a public street, in contravention of s 59(1)(d) of the Eastern Cape Liquor Act 10 of 2003. Inspector Martin took the culprits to the Kamesh Police Station, which was close to where he arrested them, G charged them formally after explaining their rights to them, and booked them into the police cells. The following morning the respondent was issued with a written notice in terms of s 56 of the Criminal Procedure Act 51 of 1977, calling upon him to appear in court on 16 January 2006 on a charge of being drunk and disorderly, and offering him the opportunity of paying an admission of guilt fine of R200 instead of going H to court. He was then released. He did not pay the fine. He also did not appear in court. This was because the public prosecutor withdrew the charge, which, according to the evidence, frequently happens in the case of petty offences because of congested court rolls.

I [2] The respondent denied that he was either drunk or disorderly. He therefore issued summons against the appellant in his capacity as Inspector Martin's employer, for payment of R75 000 as damages for wrongful arrest and detention. According to the official police records, he was arrested at 17h15 on Saturday 26 November 2005, and released at 10h45 the following morning. The period of the alleged unlawful J detention was just under 17 hours.

Jones J

[3] Inspector Martin was the only witness called to give evidence at the A trial. It was common cause that he went off duty at 18h00 on 26 November 2005, shortly after completing the arrest. Other police officials were in charge of the police cells where the respondent was detained, and they processed his release the following day.

[4] The onus to prove that the arrest and detention were not unlawful B rested on the appellant. He relied on the evidence of Inspector Martin and the contents of police documents and official records to discharge this onus. According to Inspector Martin, he noticed the respondent and his companion approaching along a public thoroughfare to where he was standing outside the Kamesh Police Station smoking a cigarette. They C were patently under the influence of liquor, unable to walk properly and supporting themselves with their arms around each other as they came towards him. They staggered in front of a motor vehicle which was obliged to give way to avoid a collision. They were noisy, disorderly and a danger to other road users and themselves. When he approached them and spoke to them they behaved in an unruly and provocative manner D and swore at him. He decided to place them under arrest for being drunk and disorderly. He did so.

[5] The magistrate's judgment was that, on the evidence, Inspector Martin was justified in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977 in arresting the respondent without warrant on a charge E of being drunk and disorderly in a public street. The section authorises an arrest without warrant for an offence committed in the presence of a policeman. According to the evidence, the respondent's conduct and that of his companion was sufficiently serious to justify his decision to arrest them and take them into immediate police custody. Inspector F Martin...