Minister of Police v Dyumani (CA138/2017) [2018] ZAECGHC 79 (4 September 2018)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. CA138/2017

Date heard: 31/8/18

Date delivered: 4/9/18

Not reportable

In the matter between:

MINISTER OF POLICE Appellant

and

SIYABULELA DYUMANI Respondent

JUDGMENT

Plasket J

[1] The respondent, Mr Siyabulela Dyumani, (Dyumani) instituted two claims against the appellant, the Minister of Police, (the Minister) in the Magistrate’s Court, Port Elizabeth. In the first, he claimed R200 000 in damages for unlawful arrest and detention. In the second, he claimed R200 000 for malicious prosecution.

[2] The claim for malicious prosecution was withdrawn and the trial magistrate made no order as to costs. The unlawful arrest and

detention claim proceeded. The magistrate found that Dyumani’s arrest and detention were unlawful and ordered the Minister to pay him R15 000 in damages, plus his costs.

[3] The Minister now appeals against that order as well as the order that, in respect of the withdrawn claim, there be no order as to costs.

The facts

[4] It was common cause that Dyumani was arrested without a warrant by Constable Bruce Britz (Britz). The evidence establishes that he was held by the police for about four and a half hours before being released. The facts deposed to by Britz, on the one hand, and by Dyumani, on the other, are diametrically opposed to each other and cannot be reconciled.

[5] Dyumani’s evidence was that he was walking by himself on the night in question when a police vehicle stopped next to him. Britz offered to give him a lift home. He entered the police vehicle and was most surprised to find that instead of going to his home, he was taken to the Despatch police station. There he was arrested and detained. He had absolutely no idea why he had been arrested because neither Britz nor anyone else spoke to him. A few hours later, he was issued with a notice to appear in court, on a charge of being drunk and disorderly in a public place, and released.

[6] In Dyumani’s particulars of claim, Britz’s exercise of discretion to arrest him was attacked in general terms. If Dyumani’s evidence is accepted, I am prepared to accept that a case of bad faith would have been made out: Britz could not have held a bona fide belief that he was entitled to arrest Dyumani.1

[7] Britz’s version was that while he and a Constable May were patrolling, late at night, they saw two extremely drunk men walking along the centre line of a road, while hanging on to each other. Britz and May stopped and approached the two, who were Dyumani and a man by the name of Zamile. Britz was able to smell alcohol on their breath, their eyes were red and they could not speak properly. He concluded that they were ‘strongly under the influence of liquor’. This observation was given added impetus when the two men let go of each other. Zamile fell to the ground, while Dyumani began to laugh before sitting down next to Zamile.

[8] Because of their state of intoxication and the danger they posed to themselves as well as other road-users, Britz decided to arrest them for being drunk and disorderly in a public place. Britz and May conveyed the two men to the Despatch police station, where they were processed and placed in a cell. Britz testified that he had arrested Dyumani at about 00h40 on 14 December 2014. At about 05h10 on the same day, Britz issued him with a J534 notice to appear in court, released him and drove him home.

The first issue: the arrest and detention

[9] The basis upon which the magistrate found the arrest and detention to be unlawful is far from clear. It would appear, however, that he accepted the evidence of Britz as to how Dyumani was arrested and detained.

[10] Dyumani’s version is so improbable that it cannot be accepted. On this version, Britz’s conduct is completely and utterly senseless and defies any logical explanation.

[11] Britz’s version, on the other hand, was logical and consistent. He struck me as being a very good witness who, confronted with an inherently dangerous situation for Dyumani, Zamile and other road-users, considered his options and decided to arrest the two men. Dyumani was released as soon as he could be in the circumstances.

[12] Britz arrested Dyumani because he committed the offence of being drunk and disorderly in a public place, an offence created by s 59(d) of the Eastern Cape Liquor Act 10 of 2003.2 In terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977, a policeman may arrest a person without a warrant if that person commits or attempts to commit an offence in the policeman’s presence. No evidence was led by Dyumani to attack Britz’s exercise of discretion that was triggered by the commission of the offence in Britz’s presence. The result is that, on the evidence, Britz succeeded in justifying the arrest and Dyumani failed to discharge the onus on him to establish an abuse of discretion on the part of Britz.

[13] The result is that the magistrate erred in finding that Dyumani’s arrest and detention were unlawful.

The second issue: costs and the withdrawn claim

[14] Usually, when a party withdraws a claim, he or she would tender the other party’s costs. Where that is not done, a court would, as a result of the general rule that costs follow the result, direct the party who has withdrawn the claim to pay the other side’s costs. Of course, the general rule is subject to a presiding officer’s discretion to make another order in appropriate cases.

[15] The magistrate appears to have taken the view that no costs order had to be made because no costs in respect of the malicious prosecution claim had been incurred by the Minister. That does not constitute a proper exercise of his discretion, and it is, in any event, far from clear that the magistrate is correct in his factual assumption.

[16] There is no reason that I can see why Dyumani should not pay the Minister’s costs in relation to the withdrawn claim.

The order

[17] I make the following order.

(a) The appeal succeeds with costs.

(b) The order of the magistrate is set aside and replaced with the following order.

‘The plaintiff’s claim is dismissed with costs, including the costs of the withdrawn claim in respect of malicious prosecution.’

______________________

C Plasket

Judge of the High Court

I agree.

N P Jaji

APPEARANCES

For the appellant: V Madokwe

Instructed by

Yokwana Attorneys, Grahamstown

State Attorney, Port Elizabeth

For the respondent: No appearance

1 Radebe v Minister of Law and Order & another 1987 (1) SA 586 (W).

2 See Minister of Safety and Security v Scheepers [2012] ZAECGHC 83 para 13; Jacobs v Minister of Safety and Security ECG 9 June 2008 (case no. CA156/2007) unreported para 7.