Minister of Safety and Security v Tyulu (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA) ; 2009 (2) SACR 282 (SCA) ; [2009] 4 All SA 38 (SCA) (27 May 2009)

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Minister of Safety and Security v Tyulu (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA) ; 2009 (2) SACR 282 (SCA) ; [2009] 4 All SA 38 (SCA) (27 May 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
327/2008
THE
MINISTER OF SAFETY AND SECURITY
Appellant
and
M
TYULU
Respondent
Neutral
citation
:
Minister of
Safety and Security v Tyulu
(327/08)
[2009]
ZASCA 55
(27 May 2009)
Coram: FARLAM, VAN
HEERDEN, MHLANTLA
JJA, BOSIELO and TSHIQI AJJA
Heard: 7
May 2009
Delivered: 27
May 2009
Updated:
Summary: Unlawful
arrest and detention – s 40(1)(a) and (f) –
Criminal Procedure
Act 51 of 1977
– whether the appellant had adduced sufficient
evidence to justify the respondent’s arrest and detention – The
appropriate
quantum of damages in respect of respondent’s arrest
and detention – Award reduced on appeal.
____________________________________________________________________________________
ORDER
On appeal from:
High
Court, Cape of Good Hope Provincial Division (Cleaver, Motala and Le
Grange JJ sitting as Full Bench).
The
following order is made:
(a) The
appeal is successful only in respect of the issue of quantum.
(b) Part
(b) of the order made by the Full Bench is set aside and substituted
with the following:
‘
The
defendant is ordered to pay the sum of R15 000 (fifteen thousand
rand) to the plaintiff as damages.’
(c) The
appellant is ordered to pay the costs of appeal, including the costs
occasioned by the employment of two counsel.
JUDGMENT
___________________________
__________________________________________
BOSIELO
AJA (FARLAM, VAN HEERDEN, MHLANTLA JJA and TSHIQI AJA concurring):
[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 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.
[2] The
facts of this case are neither complex nor controversial. The
respondent is a 48 year old magistrate stationed at the Cape
Town
Magistrate’s 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.
[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 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 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 backseat 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 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 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
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
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 of alcohol in the respondent’s blood on the night in
question was 0,23g
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 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.
[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 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.
[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 300m 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, 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 him to leave
him alone. As Cordier got out of
his vehicle, the respondent approached him. He then smelt alcohol on
the respondent’s breath.
He then ordered the respondent to get into
the police vehicle, as in his opinion he was under the influence of
intoxicating liquor.
The respondent refused to do so and instead
asked him if he knew who he (the respondent) was. Cordier informed
the respondent that
he was arresting him for being drunk in public
because he was a danger to both himself and others. The respondent
refused to get
into the police vehicle, but he calmed down and did so
voluntarily after Dell got out of the police vehicle to assist
Cordier.
He was driven back to the scene of the accident. According
to Cordier, whilst they were travelling back to the scene, the
respondent
was alone in the back seat whilst Dell occupied the front
passenger seat.
[9] After
Hendricks had positively identified him at the scene as the driver of
the offending vehicle, the respondent was taken
to Milnerton Police
Station. After he had been taken into the charge office, Hendricks,
once again, confirmed to Cordier that the
respondent was indeed the
driver of the offending motor vehicle. It was at this stage that
Cordier decided to charge the respondent
with drunken driving and
advised the respondent accordingly. He telephoned Dr Nel, the
district surgeon, who came to examine the
respondent and take his
blood sample. The respondent was then detained in the holding cells.
It suffices to state that the evidence
of Dell corroborates that of
Cordier on all the material aspects of the latter’s evidence.
[10] Hendricks
testified that he was returning from a party with some friends at
approximately 2h00 on 12 October 2003 when another
vehicle drove
straight across the lane in which he was driving, causing Hendricks
to drive into that vehicle. He testified that
the respondent was the
driver of the other vehicle. He described the respondent to Cordier –
who arrived on the scene with another
police officer in a police
vehicle shortly after the collision - as a short and chubby Black man
wearing long khaki shorts, a sweater
and with spectacles. After the
collision, the respondent got out of the vehicle and ran towards the
Milnerton Police Station. According
to Hendricks, after he had spoken
to Cordier at the scene, the police officers drove off in the
direction of Bosmansdam Road. They
later returned to the scene with a
person in the backseat of the police vehicle and, at Cordier’s
request, he identified that
person (the respondent), as the driver of
the offending vehicle. A little later Hendricks confirmed to Cordier
that the respondent,
whom he had seen again when the latter was
brought into the charge office by the police, was indeed the driver
of the other vehicle.
Hendricks conceded in cross-examination that he
could not say definitely that this was a case of drunken driving,
although it looked
like that to him at the time.
[11] It is
common cause that no criminal proceedings were instituted against
respondent as the Director of Public Prosecutions declined
to
prosecute.
[12] In his
defence to the respondent’s claim based on unlawful arrest and
detention, the appellant admitted that the respondent
was arrested
without a warrant. Relying on the provisions of ss 40(1)(a) and
40(1)(f) of the Criminal Procedure Act 51 of 1977
(CPA), his counsel
asserted that the arrest was lawful. In essence, the appellant
averred that the respondent was initially arrested
in terms of s
40(1)(a) of CPA as he was found to have been drunk in public in
contravention of s 154(1)(c) of the Liquor Act 27
of 1989 (‘the
Act’). Concerning his arrest for drunken driving, the appellant
sought refuge under s 40(1)(f) of CPA, alleging
that the respondent
was found by night in circumstances which gave the police officers
concerned reasonable grounds to believe
that he had committed an
offence of drunken driving.
[13] The
relevant part of s 40 provides that:
‘
(1)
A peace officer may without a warrant arrest any person
(a)
who commits or attempts to commit an offence in his presence;
(b)
. . . .
(c)
. . . .
(d)
. . . .
(e)
. . . .
(f)
who is found at any place by night in circumstances which afford
reasonable grounds for believing that such person has committed
or is
about to commit an offence.’
[14] Section
154(1)(c) of the Liquor Act 27 of 1989 provides that-
‘
a
person who is drunk in or near
(i)
any road, street, lane, thoroughfare, square, park or market;
(ii)
any ship, warehouse or public garage
shall
be guilty of an offence.’
[15] The
trial court found that both arrests were unlawful and awarded the
respondent R280 000 as total damages. The respondent
had claimed R400
000 made up as follows,
viz
R300
000 for contumelia and R100 000 for loss of liberty. The learned
judge rejected the appellant’s version and found in fact
that the
respondent was ‘arrested not because he has done anything wrong,
but because he was a black man in the wrong place at
the wrong time .
. . .’
[16]
The
appeal by the appellant to the Full Bench succeeded in part. The Full
Bench found that the first arrest at the filling station
was unlawful
as there was insufficient evidence to discharge the onus of
establishing that the respondent was drunk. However, the
Full Bench
found that the second arrest for drunken driving was lawful and
justified in terms of s 40(1)(f) as there were sufficient
facts which
established reasonable grounds for the police officers in question to
believe that the respondent had committed the
offence of drunken
driving. This finding was based on the fact that the respondent
seemed to have fitted the description given
by Hendricks and was
found in the vicinity of where the offending driver was reported to
have fled. He smelt of alcohol and was
unsteady on his feet. On their
return to the scene, Hendricks confirmed that the respondent was the
driver who had fled. Thereafter,
Hendricks saw the respondent being
brought into the charge office and again confirmed to Cordier that
the person who had been brought
in was the driver of the other
vehicle.
[17] After
having carefully considered the amount of damages awarded and
comparing it with previous comparable cases, the Full Bench
reduced
the award from R280 000 to R50 000.
[18] The
appellant raises two issues on appeal before us. First, he attacks
the finding that the respondent’s first arrest did
not comply with
s 40(1)(a) and was therefore unlawful. Secondly, he argues that the
award of R50 000 is excessive and startlingly
disproportionate
to awards made in similar cases.
[19] The
appellant’s counsel argued that the Full Bench erred in finding
that the appellant failed to bring the arrest within
the ambit of s
40(1)(a) of the CPA. He submitted that Cordier was justified by the
prevailing circumstances in arresting the respondent
as he did. He
relied on the fact that, according to Cordier and Dell, the
respondent had been walking in the middle of Bosmansdam
Road in the
face of oncoming traffic; that he was unsteady on his feet; that he
smelt of alcohol and, quite importantly, that his
blood alcohol
content was subsequently determined to be 0,23g per 100 millilitre,
more than twice the legally permissible limit.
Based on this, he
argued that there was clearly a high degree of intoxication on the
respondent’s part.
[20] The
above argument is, however, not supported by the clear and
uncontroverted evidence of Dr Nel to the effect that the respondent

was only moderately under the influence of alcohol when he examined
him shortly after the arrest. This evidence, it will be recalled,
was
admitted by consent. Moreover, counsel for the appellant conceded
that no evidence was tendered to explain what a blood alcohol
content
of 0,23g per 100 millilitre actually meant as regards state of
intoxication.
[21] It is
correct, as the Full Bench found, that the appellant bore the onus of
establishing the lawfulness of the respondent’s
arrest on a balance
of probabilities (
Minister of Law and Order
and Another v Dempsey
1988 (3) SA 19
(A) at
38B-C and
Zealand v Minister of Justice and
Constitutional Development
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) paras 24 and 25). Therefore the appellant had to prove that the
respondent was drunk in public in the presence of Cordier
and/or
Dell. I agree with the Full Bench that the evidence tendered by the
appellant falls far short of establishing that the respondent
was
drunk. Drunkenness was defined in
Moses v
Minister of Law and Order
1995 (2) SA 518
(C)
at 522B-H, in a passage with which I agree. This passage reads:
‘
The
word “drunk” is not defined in the Act, and it is well
established that drunkenness differs markedly from being under the

influence of alcohol. A familiar definition, which appears in
Landsdown’s
South
African Liquor Law
5
th
ed at 476, is the following:
“
A
man is drunk who, by reason of the alcohol which he has consumed, has
lost control of his mental or physical faculties, or both,
to such an
extent as to render him incapable of comporting himself, or of
performing any act in which he is engaged, with safety
to himself or
with that regard to the rights of others which the law demands.”
Landsdown
adds that the only
absolutely infallible test of drunkenness is a positive reaction for
alcohol in the cerebro-spinal fluid, a test
which is of course
wellnigh impossible to secure in practice. In the present case on
appeal, no blood test of any kind was performed
to determine the
level of intoxication of appellant. The entry in the arresting
officer’s pocketbook to the effect that appellant
was arrested for
purposes of ‘uitdroging’ or ‘drying out’, and the absence of
any entry in the crime register, make it
plain that it was never
intended to proceed with the charge against appellant, and for that
reason there would, of course, have
been no reason to test his blood.
However, the absence of such a test removes one of the bases upon
which the State might have
established drunkenness on the part of the
appellant.
There
is no evidence on record before us to show that appellant was drunk
in the sense defined by
Landsdown
.
Warrant Officer Barnard’s evidence-in-chief was that appellant’s
behaviour was such as to indicate that he was “onder die
invloed
van drank”. According to him, appellant smelt of intoxicating
liquor and his speech was impaired. The other arresting
officer,
Dell, makes no mention of appellant’s speech being impaired, nor
any redness of his eyes, relying simply on the smell
of liquor and
appellant’s aggressive behaviour. The other policeman, Warrant
Officer De Kock, was also under the impression that
appellant was
under the influence, because he had known appellant for many years
and regarded him as a very quiet person under
normal circumstances.
This
evidence falls far short of proof that appellant was not in control
of his mental or physical faculties in the sense described
in the
definition referred to above. I am accordingly of the view that for
this additional reason there was no lawful basis for
an arrest under
s 154(1)(
c
)(i)
of the Liquor Act and it follows that appellant was entitled to
resist both a search and an arrest in terms of that section.’
[22] The
evidence does not show that the respondent was not in control of his
physical or mental facilities or both as a result
of his having
consumed alcohol at the time when he was arrested. As the Full Bench
correctly remarked, the factors relied upon
by the appellant are
merely indicative of the fact that the respondent may have been under
the influence of alcohol, which does
not necessarily mean that he was
drunk. In the result, I respectfully agree that the respondent’s
arrest without a warrant for
being drunk in public was not justified
by s 40(1)(a).
[23] I am
also of the view that there were no reasonable grounds to believe
that the respondent was drunk. The result is that s
40(1)(f) can also
not be relied on to justify an arrest for contravening s 154(1)(c) of
Act 27 of 1989. It follows that the first
arrest of the respondent
was unlawful.
[24] I now
turn to the issue of quantum. The appellant attacked the award of R50
000 on the basis that it was excessive and displayed
a striking
disparity to awards made in similar and comparable cases. Much
emphasis was placed on the fact that the respondent was
only detained
after the first arrest for about 15 minutes and further that this
first arrest did not attract much publicity. On
the other hand the
respondent submitted that the amount of R50 000 was fair and
reasonable as his arrest was accompanied by
some aggravating factors.
These included the fact that the respondent, who is a magistrate, was
arrested by people with whom he
normally works; that he was
manhandled and dragged unceremoniously in public into a police
vehicle; that he was taken back to the
accident scene where he was
made out to be a criminal; and further that he was arrested for an
improper motive, namely so that
he could be taken back to the scene
of the accident to be identified by Hendricks.
[25] There
can be no doubt that, as a magistrate, the respondent is a man of
considerable standing in the community. For him to
be arrested in the
manner in which he was arrested, must have inevitably caused him
serious embarrassment and humiliation. Although
it is true that the
detention was for a relatively short period, I am of the view that
the length of time for which a person is
detained after arrest is not
the only factor to be considered in determining damages. All the
surrounding circumstances deserve
to be accorded proper
consideration. It cannot be doubted that this arrest must have caused
him serious shock with concomitant
mental anguish and stress.
[26] In the
assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is
not to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that serious
attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However our
courts should be astute to
ensure that the awards they make for such infractions reflect the
importance of the right to personal
liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law. I readily concede that
it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical
accuracy. Although it
is always helpful to have regard to awards made
in previous cases to serve as a guide, such an approach if slavishly
followed can
prove to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts (
Minister of
Safety and Security v Seymour
2006 (6) SA 320
(SCA) 325 para 17;
Rudolph & others v
Minister of Safety and Security & others
(380/2008)
[2009] ZASCA 39
(31 March 2009) (paras 26-29).
[27] Having
given careful consideration to all relevant facts, including the age
of the respondent, the circumstances of his arrest,
its nature and
short duration, his social and professional standing, the fact that
he was arrested for an improper motive and awards
made in comparable
cases, I am of the view that a fair and appropriate award of damages
for the respondent’s unlawful arrest
and detention is an amount of
R15 000.
[28] It is
clear from the order of this Court granting leave to appeal that the
appellant was ordered to pay the costs of this appeal
irrespective of
its outcome. This was a condition of the special leave to appeal
granted to the appellant. This Court cannot deviate
therefrom.
[29] In the
result the following order is made:
(a) The
appeal is successful only in respect of the issue of quantum.
(b) Part (b)
of the order made by the Full Bench is set aside and substituted with
the following:
‘
The
defendant is ordered to pay the sum of R15 000 (fifteen thousand
rand) to the plaintiff, as damages.’
(c) The
appellant is ordered to pay the costs of appeal, including the costs
of two counsel.
________________________
L
O BOSIELO
ACTING
JUDGE OF APPEAL
APPEARANCES:
FOR
APP
ELLANT: D
J JACOBS
G
R PAPIER
INSTRUCTED
BY:
THE
STATE ATTORNEY, CAPE TOWN
THE
STATE ATTORNEY, BLOEMFONTEIN
FOR
RESPONDENT:
W
KING
P
T
ORRINGTON
INSTRUCTED
BY:
ANDREW
J MASSYN ATTORNEYS, RONDEBOSCH
CLAUDE REID INC,
BLOEMFONTEIN