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[2009] ZASCA 163
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Minister of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30 November 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No 668/2008
In the matter between:
MINISTER OF SAFETY AND
SECURITY Appellant
and
PIETER SAMUEL THEO SLABBERT
Respondent
Neutral citation
:
Minister of
Safety & Security v Slabbert
(668/2008)
[2009] ZASCA 163
(30 November 2009])
Coram:
Harms
DP, Mthiyane, Lewis, Mhlantla JJA, et Hurt AJA
Heard:
12
November 2009
Delivered:
30
November 2009
Summary: Delict â arrest and
detention â Trial court having regard to issues not pleaded or
fully canvassed â Further detention
of the plaintiff justified.
____________________________________________________________
ORDER
____________________________________________________________
On appeal from:
High
Court, Grahamstown (Kroon J sitting as a court of first instance).
(1) The appeal is upheld with
costs including the costs of two counsel.
(2) The order by the court below
is set aside and replaced with an order in the following terms:
'The plaintiff's claims are
dismissed with costs'.
JUDGMENT
___________________________________________________________
MHLANTLA JA (Harms DP,
Mthiyane, Lewis JJA and Hurt AJA concurring):
[1] This is an appeal with the
leave of the court below against a judgment of Kroon J in the High
Court, Grahamstown,
in
terms of which the appellant was ordered to pay damages allegedly
suffered by the respondent by reason of unlawful detention.
The
appellant is the employer of the police officers who arrested and
detained the respondent for being drunk and disorderly in
public. The
respondent instituted action against the appellant claiming damages
for wrongful arrest and detention, assault and
malicious prosecution
on the basis that the appellant was vicariously liable for his
employees'
wrongful
acts. In this judgment I shall refer to the respondent as the
plaintiff and the appellant as the defendant.
[2] During the night of 5
February 2005 Constable Magoxo and a colleague were on patrol duty in
Klipplaat when they encountered
a bakkie parked in the middle of Main
Street. This motor vehicle constituted an obstruction to traffic.
Shortly after their arrival
at the vehicle, the plaintiff approached
them and they observed that he was drunk. The vehicle belonged to the
plaintiff who attempted
to drive it despite Magoxo's request that the
plaintiff get a sober driver to drive it for him.
[3] Realising that the plaintiff
would constitute a danger to other road users, Magoxo arrested him
for being drunk and disorderly
in a public street. The plaintiff
resisted arrest. He was only subdued after Magoxo had used pepper
spray on him and some force
was applied. He was then taken to the
local police station where he was detained overnight. While Magoxo
was processing his detention,
the plaintiff's wife arrived and
requested that he be released into her care. As the plaintiff was
still in a drunken state, Magoxo
declined to release him. He
explained that the plaintiff would be released after four hours if he
were found to be sober, otherwise
he would be detained further until
he sobered up sufficiently. Apparently the police in Klipplaat have a
practice in terms of which
they keep suspects held on drunk and
disorderly charges in detention for four hours to enable them to dry
out or sober up. Constable
Magoxo's refusal was in terms of that
practice. The plaintiff was eventually released at 07h15 the next
morning and was issued
with a notice directing him to appear in court
on a specified date. The charge was however subsequently withdrawn.
As mentioned
above he sued the defendant for various wrongful acts.
[4] At the conclusion of the
trial, the claims for assault, malicious prosecution and wrongful
arrest were dismissed. The court
found that the plaintiff had been
lawfully arrested for being drunk and disorderly in public. The
court, however, divided his detention
into two periods, namely, the
period before the plaintiff's wife requested that he be released into
her care and the period following
the request until his release the
next morning. The court found that his initial detention was
justified. Regarding the other period,
it found that his further
detention was unlawful and held the defendant liable to compensate
the plaintiff. It awarded him damages
in the sum of R20 000.
[5] The court below found that,
as Magoxo had applied the practice that a person arrested for
drunkenness be detained for a minimum
period of four hours, the
plaintiff's detention following his wife's request for his release
was not justified. Following the judgment
in that court in
Van
Niekerk v Minister of Safety and Security
1
the court below held
that the refusal to release the plaintiff rendered his further
detention wrongful. The reasons underlying the
court's finding were
as follows:
'In the present
case, too, the evidence was that when Magoxo, after locking the
plaintiff in the cells, went to talk to the plaintiff's
wife she
requested the release of the plaintiff. The request was refused on
the basis of the implementation of the practice referred
to above.
The inference is that the request of the plaintiff's wife that he be
released into her care, carried with it the implicit
undertaking that
she would see to his welfare. By that stage the plaintiff had long
since adopted a calm and submissive attitude.
The plaintiff was known
to Magoxo, his particulars had been secured, and there was no reason
to apprehend that he would not stand
trial to face any charge
preferred against him.
I am satisfied that
the invasion of the plaintiff's constitutional rights to freedom
constituted by his continued detention subsequent
to his wife's
request for his release was unjustifiable, and the exigencies of the
matter could have been met at that stage by
the issue to him of the
J534 notice and releasing him into the care of his wife.'
[6] It is against this conclusion
that the defendant launched the appeal.
[7] The issue on appeal is
whether the high court's finding that part of the plaintiff's
detention was unjustified addresses an
issue covered by the case
pleaded and established by the plaintiff.
[8] A determination of this issue
requires a consideration of the pleadings and to a lesser extent the
evidence led at the trial.
In the particulars of claim, the plaintiff
alleged that the arrest and detention were wrongful because there
were no reasonable
grounds for his arrest and detention and that the
arresting officers were aware of this fact. The relevant part of the
particulars
of claim reads:
'(a) Op Februarie
2005 en te Hoofstraat, Klipplaat, binne die jurisdiksie gebied van
die bogemelde Agbare Hof, is die Eiser wederregtelik
en onregmatiglik
deur lede van die Suid-Afrikaanse Polisiediens (hierin verder na
verwys as "die SAPD lede") sonder 'n
lasbrief gearresteer
en van sy vryheid ontneem, en was die SAPD lede te alle relevante tye
wederregtelik en opsetlik die oorsaak
dat die Eiser te die
Suid-Afrikaanse Polisiediens se aanhoudingselle te Klipplaat aangehou
is terwyl daar, tot die wete van die
SAPD lede geen wettige gronde
vir die arrestasie, aanvanklike aanhouding en verdere aanhouding van
die Eiser was nie.
(b) Eiser was vanaf
ongeveer 22h30 op 6 Februarie 2005 tot ongeveer 08h00 op 7 Februarie
2005 in aanhouding.
(c) Te alle
relevante tye en meer in besonder ten tye van die Eiser se arrestasie
en aanhouding soos hierbo vermeld was die SAPD
lede aan diens, en het
hulle opgetree binne die diensbestek van hulle diensverhouding met
die Verweerder.
(d) Bovermelde
arrestasie, aanhouding en verdere aanhouding is
animo
iniuriandi
deur die SAPD lede versoorsaak en uitgevoer.'
[9] In his plea the defendant
denied all the above allegations and in amplification contended
that the arrest and detention were
justified by law. He averred that
the plaintiff was arrested for committing an offence in the presence
of police officers. It is
no longer disputed that the plaintiff was
drunk and disorderly in public. Nor is it in doubt that the officer
who arrested him
complied with the provisions of
s 40
of the
Criminal
Procedure Act 51 of 1977
which authorises an arrest without a
warrant.
[10] The question that arises for
consideration is whether the case pleaded by the plaintiff covers the
assertion that the refusal
to release him into his wife's care
rendered the further detention unlawful. A perusal of the particulars
of claim shows clearly
that such a case was not pleaded. As stated,
the arrest and detention were challenged on the basis that the police
had no legal
justification for effecting them. As expected, the
defendant's plea addressed only that issue.
[11] The purpose of the pleadings
is to define the issues for the other party and the court. A party
has a duty to allege in the
pleadings the material facts upon which
it relies. It is impermissible for a plaintiff to
plead a particular case and seek
to establish a different case at the trial.
2
It is equally not permissible for the trial court to have recourse to
issues falling outside the pleadings when deciding a case.
[12] There are, however,
circumstances in which a party may be allowed to rely on an issue
which was not covered by the pleadings.
This occurs where the issue
in question has been canvassed fully by both sides at the trial. In
South British Insurance
Co Ltd v Unicorn Shipping Lines (Pty) Ltd
,
3
this court said:
'However, the
absence of such an averment in the pleadings would not necessarily be
fatal if the point was fully canvassed in evidence.
This means fully
canvassed by both sides in the sense that the Court was expected to
pronounce upon it as an issue'.
[13] The issue on which the court
below relied as a basis for liability was not fully canvassed at the
trial presumably because
it was not pleaded and the parties'
attention was not drawn to it. It was fleetingly touched upon during
Magoxo's cross-examination.
The response elicited was that the
plaintiff was still drunk at the time his wife made the request. The
issue was not pursued and
furthermore the plaintiff's wife did not
testify to support the contention.
[14] Counsel for the plaintiff
submitted that the plaintiff ought to have been released into his
wife's custody even if he were
drunk. There is no merit in this
submission. It has to be borne in mind that the plaintiff's wife
never testified. No attempt was
made to assess whether or not the
inebriated plaintiff would have submitted to his wife's control once
released; whether he would
have refrained from behaving in a drunk
and disorderly manner and whether he would have remained with his
wife once released. There
is furthermore no evidence that he was no
longer a danger to himself and/or members of the public. The evidence
therefore does
not support the conclusion that the plaintiff was calm
and submissive at the time of the request for his release. The police
had
subdued him and he remained in their control.
[15] In the matter of
Nelson
v Minister of Safety and Security
,
4
the appellant's 18
year old son Romano had been arrested and detained after a police
operation on a charge of riotous behaviour.
He was kept in the police
cells until 10h00 the next morning. It appeared that Romano had been
arrested after he had been seen
by a police officer, Holland,
staggering drunk in the middle of the road brandishing a bottle of
beer, behaving in a riotous and
disorderly fashion and obstructing
traffic. The full bench in dismissing the appeal held:
'That he co-operated
to the extent of giving his name and address to the police and that
he had seemingly calmed down after being
taken to the police is not a
sufficiently good reason. It is to be expected that people who are
drunk and disorderly will revert
to their previous pattern of
behaviour as soon as the police have turned their back. Indeed, I
believe that it would have been
irresponsible for the police to have
released Romano unless they could be sure that he was no longer
dangerous.'
[16] In this case too we have no
evidence to suggest that it would have been safe or sensible to
release the plaintiff into his
wife's care. No one knew how he would
have behaved if released. The judge a quo also did not know, yet made
a finding without any
factual basis. It is not necessary, in my view,
to comment in any detail on the high court's inferential reasoning.
Suffice it
to say that the inferences it drew were not supported by
the established facts.
[17] It follows that the court
below erred in finding that the plaintiff's further detention was not
justified. As a result its
order must be set aside. I have read the
judgment of Harms DP and agree with it.
[18] In the result the following
order is made:
(1) The appeal is upheld with
costs including the costs of two counsel.
(2) The order by the court below
is set aside and replaced with an order in the following terms:
'The plaintiff's claims are
dismissed with costs.'
_____ __________
N
Z MHLANTLA
JUDGE OF APPEAL
HARMS DP:
[19] The facts of the case appear
from the judgment of Mhlantla JA. I concur in her judgment but wish
to elaborate on the consequences
of the high courtâs finding that
continued detention was wrongful.
[20] The right to dignity and
freedom and security of the person are core values of the
Constitution and any arrest and detention
of a person amounts to a
prima facie infringement of these rights. Our common law adopted the
same approach and it is for this
reason that the police, if
challenged, have to justify an arrest and detention. This means that
the police bear the onus of proving
that the arrest and detention are
not wrongful.
[21] The onus can arise only
after the issue itself has arisen. The aggrieved person must claim
that a particular arrest or detention
was wrongful before the police
are saddled with this onus. As pointed out in the judgment of
Mhlantla JA, the plaintiffâs case
was that his arrest and detention
were unlawful because he had not been drunk and disorderly. His case
on the pleadings was not,
in the alternative, that his detention had
become unlawful when his wife and friend arrived.
[22] A court is not bound by
pleadings if a particular issue was fully canvassed during the trial.
But there is not the slightest
suggestion that the matter was so
canvassed. As a matter of fact, neither the plaintiffâs friend nor
his wife testified on his
behalf in respect of his state of
intoxication at the police office. One can only assume, in the
absence of any other explanation,
that they would not have supported
him. In other words, the police had at the end of the plaintiffâs
case not the slightest inkling
that they had to defend the continued
detention after the arrival of the plaintiffâs wife at the police
station. The defendant
was entitled at that stage, at the very least,
to know that it had to establish that the legality of the continued
detention was
an issue. Cases by ambush are not countenanced.
[23] One gains the impression
from his questioning that the trial judge assumed that the police had
a duty to check every few minutes
whether the plaintiff was still
drunk and disorderly and unless they are able to show from minute to
minute that his detention
was no longer required they would have
failed to discharge their onus. The police in this case visited the
cells regularly and
found after the first visit that the plaintiff
was asleep. The implication that they should have woken him to check
his state of
inebriation and to release him in the middle of the
night appears to me to be farfetched.
[24] I would like to recount the
learned judgeâs reasoning and relate it to the evidence. He held
that the plaintiff was not only
drunk and disorderly but that he was
also intent on committing the offence of drunken driving and that the
police were accordingly
âobligedâ to arrest and detain him. He
further held that âthe plaintiffâs drunken condition and
disorderly attitude was
also sufficient, at least initially, to lock
him up in the cells.â He then posed the question which was not an
issue, as I have
sought to point out, namely whether his continued
detention was justified.
[25] In answering this question
the learned judge referred to the fact that after locking up the
plaintiff Magoxo went to talk to
the plaintiffâs wife. She had
requested his release. The judge held that (a) the request was
refused on the basis of the implementation
of a police practice to
release such a person only after four hours; (b) the wifeâs request
carried with it the âimplicit undertaking
that she would see to his
welfareâ; and (c) by that stage the plaintiff had long since
adopted a calm and submissive attitude.
[26] I fear that the trial judge
misconstrued the evidence. Plaintiffâs counsel was unable to
support these factual findings on
the record. Magoxo made it quite
clear that the plaintiff was at that stage still drunk and that his
wife was fully aware of the
fact. He also said that âif anyone
could have come to the police station and requested his release, then
he would have been released
if he was sober.â As to the second
point, it was never suggested to Magoxo that the wife was able or
willing to look after the
plaintiffâs welfare in his inebriated
state. And as to the last point, if the conclusion was based on the
fact that the plaintiff,
after having been sprayed with pepper,
handcuffed and locked up, was submissive I can understand it: but
that does not justify
the conclusion that he was entitled to be
released.
___________
LTC
HARMS
DEPUTY PRESIDENT
Appearances:
For Appellant E A S Ford SC
N J Sandi
N N Dullabh & Co ,
GRAHAMSTOWN
The State Attorney,
BLOEMFONTEIN
For Respondent H J van der Linde
SC
A Frost
G P Van Rhyn, Minnaar &
Co Inc,
UITENHAGE
Honey Attorneys Inc,
BLOEMFONTEIN
1
Case No 1212/05 ECD (15 June 2006).
2
See
particularly
Moaki
v Reckitt & Colman (Africa) Ltd and another
1968
(3) SA 98
(A) at 102A;
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at 107;
Buchner
and another v Johannesburg Consolidated Investment Co Ltd
1995 (1) SA 215
(T) at 216H-J;
Jowell
v Bramwell-Jones and others
1998 (1) SA 836
(W) at 902H.
3
1976
(1) SA 708
(A) at 714G.
4
[2007] ZAECHC 40
(14 June 2007) at para 8.