Minister of Safety and Security v Glisson

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Jones J and Pickering J
• Judgment Date: 27 October 2006
• Citation: 2007 (3) SA 78 (E)
• Hearing Date: 20 October 2006
• Docket Number: 189/2006
• Counsel: A Beyleveld (with F Menti) for the appellant. P H Mouton (with M Badenhorst) for the respondent.

Jones J:

[1] This is an appeal against the judgment of the magistrate of Uitenhage J

Jones J

awarding damages to the respondent in the sum of R15 000 for wrongful arrest and imprisonment. A

[2] The undisputed evidence showed that on 16 December 2004 the respondent was arrested without warrant by two members of the South African Police Service 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 B 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 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 C 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 of intoxication. The magistrate nevertheless held that the Minister of Police had failed to discharge the onus of proving lawful justification for D this arrest.

[3] In coming to that conclusion the magistrate found, inter alia, that the respondent did not contravene the Liquor Act because he was on the pavement when he threw the bottle, and not 'in or on any road, street, lane, thoroughfare, square, park or market' as required by the section. This finding cannot be supported. E It is indeed so that the respondent was on the pavement and not in or on the trafficable surface of the street or road. But the section does not expressly require that he be on the trafficable surface, and in my view his conduct was committed in or on a road, street, or thoroughfare within the meaning of the section. The plain meaning of F the word thoroughfare, for example, includes a walkway adjacent to a road between two places. [1]

[4] I am of the view, however, that in another respect the magistrate's conclusion is indeed supportable. He found that the evidence fell short of proof that the respondent committed the offence of being drunk and disorderly in the presence of the G police officer who arrested him within the meaning of s 40(1)(a) of the Criminal Procedure Act, as explained in such cases as Minister of Justice and Others v Tsose 1950 (3) SA 88 (T); Areff v Minister van Polisie 1977 (2) SA 900 (A) at 908 in fine - 909A; Gulyas v Minister of Law and Order 1986 (3) SA 934 (C). Because the section provides H justification for the invasion of personal liberty following upon an arrest without warrant, the courts have given a precise meaning to the phrase 'in his [the peace officer's] presence'. One of the purposes [2] of requiring the offence to be committed in a policeman's presence is to ensure that he has direct personal knowledge of the I

Jones J

arrested person's conduct and is able to reach the conclusion on the strength thereof that the arrested person A has prima facie committed an offence. The section does not provide him with protection if he acts solely on what he has been told by another, even if that other is a fellow policeman (Areff's case (supra); R v Kleyn 1937 CPD 288 at 292). In this case it is common cause that Inspector Potgieter made the arrest because the respondent threw the bottle of beer, and that this was central to the plea of justification. B Without it there was no drunk and disorderly conduct. It is also common cause that Potgieter did not see the respondent throw the bottle. He was told about it by his companion in the police vehicle, who saw the incident through the side mirror. Potgieter...