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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2011] ZAKZPHC 28
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Kieck v Minister of Safety and Security and Another (AR 45/11) [2011] ZAKZPHC 28 (24 June 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No AR 45/11
In
the matter between :
Eardley
Kieck
….............................................................................................
Appellant
and
The
Minister of Safety and Security
….................................................
1
st
Respondent
Sergeant
M Rose
…............................................................................
2
nd
Respondent
Judgment
Lopes J
[1] The appellant in this matter
instituted action against the respondents in the Magistrates’
Court for the district of Newcastle
for payment of the sum of R100
000, being damages allegedly suffered by the appellant as a result of
his allegedly wrongful arrest
and detention by the second defendant
acting within the course and scope of his employment as a policeman
with the first defendant.
[2] The learned magistrate in the
court a quo dismissed the appellant’s claim with costs, and it
is against that decision
that this appeal comes before us.
[3]
The facts
:-
The facts of the matter may be
summarised as follows :-
on the 22
nd
December 2007
the appellant, his wife, his daughter and his daughter’s
boyfriend went out to dinner, during the course
of which the
appellant consumed two whiskies; and
returning home at approximately
11.30pm the appellant was seated in the back left hand side of the
motor vehicle with his wife,
and his daughter was driving the
vehicle with her boyfriend sitting next to her; and
the motor vehicle was observed by the
second respondent who requested that it pull over because it was
being driven without any
lights; and
the second respondent then proceeded
to question the appellant’s daughter;
the appellant then got out of the
back left-hand passenger side of the motor vehicle and began to
remonstrate with the second
respondent and another police official.
An Inspector Fox who was at the scene asked the appellant to get
back into the vehicle.
The second respondent then came around the
vehicle and instructed the appellant to get back into the motor
vehicle;
the appellant refused to get back
into the motor vehicle whereupon the second respondent told him he
was under arrest;
the appellant then got back into the
motor vehicle and the second respondent , Inspector Fox and a
certain Constable Mthethwa
then removed the appellant from the motor
vehicle and took him to the police station where he was kept for
approximately four
hours;
the appellant was not arrested
pursuant to any warrant, but in terms of sub-s 40(1)(a) of the
Criminal Procedure Act, 1977
;
the offence with which the plaintiff
was charged was apparently being drunk in a public place and he was
acquitted at the trial.
[4]
The judgment in the court a quo
Having read the evidence of the
witnesses and the judgment of the learned magistrate, it is difficult
to fault his analysis of what
happened on the night in question. It
is clear that the appellant was being obstructive and difficult and
interfering with the
police officials in the execution of their
duties. Having said that, the attitude of the second respondent was
somewhat high handed,
and there is little doubt that the appellant
was injured when he was handcuffed by the police officers. This was
primarily as a
result of the fact that he suffered from rheumatoid
arthritis and was unable to be handcuffed with his hands behind his
back. After
intervention by the appellant’s wife the police
officers eventually handcuffed him with his hands in front of his
body, and
then took him to the police station.
[5] It is unfortunate that matters got
so out of hand that it became necessary to arrest the appellant.
Perhaps, with a little more
courtesy and tact, the police officials
could have dealt with the matter without having to resort to
arresting the appellant. After
all, when he climbed back into the
motor vehicle he evidenced an intention to comply with the requests
of the police officers.
Had they simply then allowed him to stay in
the motor vehicle while it followed them to the police station, there
would probably
have been no problem.
[6] The fact remains, however, that
the police officials reasonably suspected the appellant of being
drunk in a public place. That
the appellant was in fact intoxicated
comes through clearly in the evidence. The evidence of Constable
Mthethwa is particularly
important in this regard because it was
purely fortuitous that he was on the scene. He was not accompanying
other police officers,
and testified that the appellant looked under
the influence, he smelt of liquor, and the way the appellant was
behaving you could
see that he had been drinking. In those
circumstances the police officials were entitled to arrest the
appellant and detain him
for a sufficient period of time for him to
sober-up before being released.
[7] Having found that the arrest was
not wrongful, the learned magistrate correctly in my view dismissed
the appellant’s claim
with costs. In all the circumstances I
would dismiss the appeal with costs.
Moodley AJ : I agree.
Date of hearing : 20
th
June
2011
Date of judgment : 24
th
June 2011
Counsel for the appellant : S Jasat
(instructed by Southey Steyn & Mphela Inc)
Counsel for the respondent : C S
Sibiya (instructed by the State Attorney)