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[2012] ZASCA 16
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Minister of Safety and Security and Another v Swart (194/11) [2012] ZASCA 16; 2012 (2) SACR 226 (SCA) (22 March 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 194/11
Not reportable
In
the matter between:
MINISTER OF SAFETY AND SECURITY
…...................................................
First
Appellant
JONATHAN DANIËLS
…...........................................................................
Second
Appellant
and
JOHANNES FRANCOIS SWART
…....................................................................
Respondent
Neutral citation:
Minister of
Safety and Security & another v Swart
(194/11)
[2012] ZASCA
16
(22 March 2012)
Coram:
Mthiyane DP, Brand,
Cloete and Bosielo JJA and Ndita AJA
Heard: 05 March 2012
Delivered: 22 March 2012
Summary: Unlawful arrest –
s
40(1)
(b)
of the
Criminal Procedure Act 51 of 1977
–
respondent arrested without a warrant – whether the arresting
officer had reasonable grounds for suspecting the respondent
of
having committed an offence of having driven a vehicle while under
the influence of intoxicating liquor – quantum –
whether
there is an basis to interfere with the award made by the court
below.
ORDER
On appeal from
: Western Cape
High Court, Cape Town (Blignault J and Samela AJ sitting as court of
appeal):
The appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
BOSIELO JA
(Mthiyane DP, Brand
and Cloete JJA and Ndita AJA concurring)
[1] In the early hours of 27 May 2007,
the respondent was arrested by the second appellant without a warrant
on a suspicion of driving
a motor vehicle on a public road whilst
under the influence of intoxicating liquor. He was thereafter
detained at the De Doorns
police station. The criminal charges
against him were withdrawn the next day after the tests revealed that
his blood alcohol level
at the time of driving was below the
permissible legal limit.
[2] Following this, the respondent
issued summons against the appellants in the Magistrates’
Court, Worcester for damages
suffered as a result of the unlawful
arrest and detention. The magistrate dismissed his claim with costs.
However, the respondent
appealed successfully to the Western Cape
High Court (Blignault J and Samela AJ) where he was awarded damages
in the amount of
R50 000 plus interest and costs. The appellants are
appealing to this Court with its leave against the judgment of the
court below.
[3] That facts which gave rise to this
matter can be summarised as follows: The second appellant, Mr
Jonathan Daniëls, is a
police constable stationed stationed at
De Doorns Police Station. Constable Sonja Nel is his colleague. On 27
May 2007, whilst
doing patrol duties in a police vehicle, they
received a radioed report of an accident in the Hex pass. Whilst on
their way to
the scene of the alleged accident, they came upon the
respondent who ran towards them. Using a torch, he stopped them. The
time
was 03h45. The respondent was a colleague. He asked them to help
him as he had driven his vehicle off the road. He asked if they
could
drive him home so that he could fetch his other van and a rope in
order to tow the damaged vehicle back home. The second
appellant
explained to the respondent that they were on their way to attend to
an accident and that they would return to assist
him. At this stage,
they had not seen his vehicle as it was dark. Whilst proceeding to
the place where the accident had allegedly
occurred, the second
appellant telephoned the officer in the charge office, Inspector
Anneke Joubert, and reported to her that
they had encountered the
respondent who appeared to be under the influence of alcohol.
[4] As they could not find the scene
of accident nor the vehicle that they were looking for, they returned
to where they had met
the respondent. Upon their arrival at the
scene, they saw the respondent’s van lying about 100 m further
into a ditch. According
to the second appellant, it appeared as if
the respondent had either lost control of the vehicle or
miscalculated a bend in the
road. He then approached the respondent
and told him that he (the respondent) knows what the procedure is
when a person has caused
an accident whilst under the influence of
alcohol. The second appellant then advised the respondent of his
rights and tried to
arrest him. The respondent resisted and protested
that he was not driving the vehicle and further that as could be seen
the engine
was not running. The respondent became belligerent, used
abusive language and refused to submit to the arrest. The second
appellant
then telephoned the charge office and asked for assistance.
Two other police officers came to help, but to no avail. The
respondent
ultimately gave in after his immediate senior Captain
Mashishi had come to the scene. He was then arrested on a suspicion
of driving
under the influence of intoxicating liquor, whereafter he
was taken to a doctor in Worcester for a blood sample to be taken for
forensic analysis.
[5] As I have already indicated the
charge against the respondent was withdrawn the following day as the
result of his blood analysis
showed that his blood alcohol level was
only 0.04 grams per 100 ml at the time of the incident. He however
insisted that the respondent
reeked of alcohol when they met him. He
also conceded that he did not perform any tests to determine the
respondent’s state
of sobriety.
[6] Constable Nel was on patrol duty
with the second appellant on the night in question. To a large extent
her evidence is the same
as that of the second appellant. She was the
driver of the police vehicle. After the respondent had stopped them
whilst en route
to the scene of an accident, she sensed a mild smell
of alcohol when he spoke to them. She could not say whether the
respondent
was drunk or not. She also confirmed that she knew the
respondent before the night in question. She conceded that it was
dark so
much so that she could not even see the respondent’s
eyes. As to the condition of the road, she testified that there was a
dangerous curve where the respondent’s vehicle left the road.
[7] The evidence of Inspector Joubert
was not of much value except that she confirmed that she was in
charge at the charge office
that night. After she received a report,
which was radioed in from the second appellant, regarding the
allegation that the respondent’s
vehicle had left the road and
that he was under the influence of alcohol, she instructed the second
appellant to arrest the respondent
for driving under the influence of
alcohol.
[8] The respondent testified as
follows. He spent the better part of the night (27 May 2007) with his
friend, Mr Truter, at Truter’s
home. Both are police officers.
He conceded that they drank some beers (no indication of the exact
quantity is given) at Truter’s
home. The respondent’s ten
year old son was also present. Later on in the night the respondent
decided to head home. As he
had been drinking he did not think it was
safe for him to drive. He then got one Eben, whom he had used in the
past as his informer,
to drive him home. Whilst en route to his home,
Eben lost control of the vehicle which veered off the road. Eben fled
the scene
after the respondent threatened to hit him. The road they
traversed has a dangerous curve, no lights, was under construction at
the time and had no road markings. After the accident Eben fled the
scene. The respondent walked up to the main road to seek help.
A
patrol vehicle driven by Nel, with the second appellant as her
passenger, pulled up after he had waved them down using his torch.
He
explained his problem to them and they undertook to return and offer
him assistance after attending to another accident that
had been
reported. The respondent denied that he had told them that he had
driven his vehicle off the road. Upon their return the
two police
officers never asked him what had happened. All that the second
appellant told him was that he should have known better
than to drive
a vehicle whilst he was inebriated. The second appellant then tried
to arrest him but he resisted. A fierce struggle
ensued until he was
forced into the police van by the second appellant, one Tokwe and
Captain Mashishi.
[9] The respondent further testified
that, same morning, he was taken to a doctor where a blood sample was
taken. He was thereafter
detained in a police cell. The respondent
described the condition in the cell as inhumane and atrocious eg the
toilet was blocked
and the smell was putrid. Whilst at the charge
office, where there were approximately five police officers, he was
taunted and
ridiculed by someone asking: ‘Who is going to have
the privilege to lock up Blackie?’
[10] The following essential facts
appear to be common cause:
(a) The respondent, the second
appellant and Nel are all police officers, and known to one another;
(b) all three of them were stationed
at the same police station namely De Doorns;
(c) the respondent was their senior;
(d) the relationship between the
respondent and the second appellant was stormy (stormagtig);
(e) on 27 May 2007 both the second
appellant and Nel were on patrol duty;
(f) they were acting as police
officers within the scope of their duties under the first appellant;
(g) they encountered the respondent,
whose vehicle had veered off the road and fallen into a ditch;
(h) the road where the vehicle left
the road was dark with no lights, has a dangerous curve, was under
construction and had no road
markings;
(i) the respondent stopped them and
requested assistance;
(j) both the second appellant and Nel
smelt liquor on the respondent’s breath;
(k) the second appellant then
telephoned Inspector Joubert who was in charge at the charge office
and reported to her that the respondent’s
vehicle had gone off
the road and that he was under the influence of alcohol;
(l) subsequently, the second appellant
tried to arrest the respondent who in turn resisted;
(m) the respondent was only subdued
and arrested with the help of one Tokwe and Captain Mashishi;
(n) a blood sample was subsequently
drawn from the respondent and sent for analysis;
(o) the results were a blood alcohol
level of 0,04 grams per 100 ml;
(p) the prosecutor issued a nolle
prosequi certificate;
(q) the respondent was detained for
four and a half hours in the police cells; and
(r) the conditions in the cell were
inhumane and horrid.
[11] The issues raised in this appeal
are whether, based on the facts known to the second appellant at the
time when he observed
the respondent at the scene, it can be found
that the respondent was the driver of the vehicle that went of the
road and whether
his suspicion, that the respondent was at the time
under the influence of intoxicating liquor, was reasonable.
[12] Counsel for the appellants
submitted that the circumstances under which the respondent was
arrested justified a reasonable
suspicion, amongst others, that he
was the driver of the vehicle that had veered off the road. In fact,
counsel argued that this
is what the respondent said to both the
second appellant and Nel when they enquired what had happened.
Counsel argued further that,
in absence of any reasonable explanation
from the respondent regarding how his vehicle left the road and
landed in a ditch, it
was reasonable for the second appellant to
conclude that it was due to the respondent’s drunken state.
Therefore, the conclusion
is that the second appellant was justified
in arresting the respondent as he harboured a reasonable suspicion
that the respondent
drove the vehicle whilst he was under the
influence of alcohol.
[13] On the other hand, Mr Nortier for
the respondent argued that the mere fact that the respondent’s
vehicle had veered off
the road and that he smelt of alcohol is not
sufficient proof that he was under the influence of alcohol when he
drove the vehicle
and further that the cause of the accident was as a
result of his intake of alcohol. Mr Nortier submitted that by failing
to make
proper enquiries as to how the respondent’s vehicle had
left the road, the court is left with no evidence but mere doubt,
suspicion and pure speculation. He further argued that such an
occurrence can be caused by a variety of factors other than
drunkenness.
It is common cause in this case that the road on which
the vehicle in question was travelling was dark with no lights and
has a
dangerous curve. In addition there were road constructions with
no road markings to alert road-users of any possible danger.
[14] Concerning the smell of alcohol,
Mr Nortier submitted that the mere fact that the respondent smelt of
alcohol does not necessarily
mean that his mental faculties and
ability to drive a vehicle was so seriously affected that he was not
fit to drive. He contended
that because none of the two police
officers witnessed the respondent driving the vehicle they could not
testify regarding the
manner in which the vehicle was driven. In
addition he submitted that the police officers should have made more
enquiries to determine
the respondent’s level of drunkenness.
He suggested that the police could have asked him to stand on one
leg, asked him to
walk, spoken to him to determine if his speech was
slurred or they could have checked if his eyes were bloodshot. In the
absence
of such further indications of drunkenness, Mr Nortier argued
that the mere evidence of the smell of alcohol alone is hardly
sufficient
to sustain an inference of drunkenness.
[15] The respondent alleged that it
was Eben who was driving his van when it veered off the road. The
second appellant denied that
the respondent ever mentioned Eben to
him. However, on the other hand Nel testified that the respondent’s
son told her that
it was his father who was driving. Nel confirmed
that the respondent told her about Eben. It should be clear that as
the respondent
never said anything to the second appellant about
Eben, he could not have formed a suspicion that the respondent was
lying about
who drove the vehicle in an attempt to avoid being
arrested for drunken driving.
[16]
Section 40(1)
(b)
of the
Criminal Procedure Act 51 of 1977
provides that:
‘
40 Arrest by
peace officer without warrant
(1)
… A peace officer may without warrant arrest any person–
(b)
whom he reasonably suspects of having committed an offence referred
in Schedule 1, other than the offence of escaping from lawful
custody.’
[17] It should be clear from
s
40(1)
(b)
that the following are the essential jurisdictional
facts which have to be present to justify an arrest without a
warrant:
(a) the arresting officer must be a
peace officer;
(b) the arresting officer must
entertain a suspicion;
(c) the suspicion must be that the
suspect (the arrestee) committed an offence referred to in Schedule
1; and
(d) the suspicion must be based on
reasonable grounds.
See
Duncan v Minister of Law &
Order
1986 (2) SA 805
(A) at 818G-H;
Minister of Safety &
Security v Sekhoto & another
2011 (1) SACR 315
(SCA) para 6.
The real dispute in this case revolves
around the question whether the requirements of paragraph (d) above
relating to the reasonableness
of the suspicion, have been met.
[18] Based on the facts of this case
the key question that merits consideration, is whether the mere smell
of alcohol was sufficient
to give rise to a reasonable suspicion on
part of the second appellant that the respondent was under the
influence of intoxicating
liquor and that for that reason he could
not drive a vehicle.
[19] It is well-established that the
onus rests on the arresting officer to prove the lawfulness of the
arrest. This is so because
as Rabie CJ stated in
Minister of Law &
Order & others v Hurley & another
1986 (3) SA 568
(A) at
589E-F:
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the
onus
of
proving that his action was justified in law.’
[20] It is furthermore trite that the
reasonableness of the suspicion of any arresting officer acting under
s 40(1)
(b)
must be approached objectively. The question is
whether any reasonable person, confronted with the same set of facts,
would form
a suspicion that a person has committed a Schedule 1
offence.
M v Minister of Safety & Security
2009 (2) SACR
291
(GSJ).
[21] At the risk of repetition the
only evidence on which the second appellant decided to arrest the
respondent, is the fact that
he smelt of alcohol and that his vehicle
had left the road and landed in a ditch. There is no evidence that
the respondent was
unsteady on his feet, that his speech was slurred,
that he could not walk in a straight line or that his eyes were
bloodshot. These
are the well-known indications of a person who is
under the influence of alcohol.
[22] On the contrary, the respondent
behaved like a person in full control of his faculties. When he saw
their vehicle he ran towards
them and stopped them. He used a torch
light to flag them down. Furthermore, when the respondent requested
that they drive him
to his home to fetch his other van, he spoke in a
friendly and coherent manner. All these actions indicated that the
respondent
was in full control of his senses.
[23] To my mind to conclude that the
respondent was under the influence of alcohol based on the mere fact
that he smelt lightly
of alcohol, is more of a quantum leap in logic.
It follows in my view that the second appellant’s suspicion was
not based
on reasonable grounds and therefore that the respondent’s
arrest and detention were unlawful.
[24] I now wish to deal with quantum.
This matter has serious aggravating features. The respondent is a
police officer, a sergeant
of some 16 years’ standing, with
both the second appellant and Nel being his subordinates. They were
all stationed at the
same police station. The manner in which he was
physically manhandled and thrown into the police van was truly
demeaning. This
happened in front of his son and his commanding
officer. Whilst at the charge office, he was taunted and ridiculed in
the presence
of junior officers. The fact that some police officers
were asking who was going to have the privilege of taking the
respondent
to the cells makes the whole arrest and detention even
more demeaning. Clearly his dignity and reputation was gravely
impaired.
He spent four and a half hours in detention for no good
reason. I am unable to find any misdirection in the award made by the
court
below which warrants any interference by this Court.
[25] In the circumstances the appeal
is dismissed with costs.
____________
L O Bosielo
Judge of Appeal
APPEARANCES:
For Appellant: A Schippers SC (with
him S O’Brien)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
For Respondent: LR Nortier
Instructed by:
Conradie Incorporated, Worcester
Phatshoane Henney Inc., Bloemfontein