Minister of Safety and Security v Du Plessis (CA 28/2009) [2009] ZAECGHC 39; 2010 (1) SACR 49 (ECG) (2 July 2009)

9

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: THE MINISTER OF SAFETY AND SECURITY

And

JAN DU PLESSIS

Registrar: CA 28/09

Magistrate:

High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 19/06/09

DATE DELIVERED: 02/07/09

JUDGE(S): JONES J, DAMBUZA J

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s): ADV: A. Beyleveld & ADV: E. Menti

for the Respondent(s): ADV: N.M. Paterson

Instructing attorneys:

for the Appellant(s): NETTELTONS ATTORNEYS

for the Respondent(s): NEVILLE BORMAN & BOTHA ATTORNEYS

CASE INFORMATION -

Nature of proceedings : APPEAL – UNLAWFUL ARREST & DETENTION

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape Division Case No CA 28/2009

Grahamstown

In the matter between

THE MINISTER OF SAFETY AND SECURITY Appellant

and

JAN DU PLESSIS Respondent

Coram JONES AND DAMBUZA JJ

Summary Unlawful arrest and detention – on trial, a claim for damages for unlawful arrest was dismissed, but damages were awarded for a subsequent unlawful detention – held, on appeal, that the magistrate had correctly held that the appellant had not discharged the onus of justifying the entire period of 16½ hours detention after an arrest on a charge of being drunk and disorderly in a public street – the appeal was dismissed..

JUDGMENT

JONES J

[1] On 26 November 2005 Inspector S Martin of the South African Police Services, Uitenhage arrested the respondent (the plaintiff a quo) and his companion, one Nugget, on a charge of being drunk and disorderly in a public street in contravention of section 59(1)(d) of the Eastern Cape Liquor Act No 10 of 2003. Inspector Martin took the culprits to the Kamesh police station, which was close to where he arrested them, charged them formerly after explaining their rights to them, and booked them into the police cells. The following morning the respondent was issued with a written notice in terms of section 56 of the Criminal Procedure Act 51 of 1977 calling upon him to appear in court on 16 January 2006 on a charge of being drunk and disorderly, and offering him the opportunity of paying an admission of guilt fine of R200-00 instead of going to court. He was then released. He did not pay the fine. He also did not appear in court. This was because the public prosecutor withdrew the charge, which, according to the evidence, frequently happens in the case of petty offences because of congested court rolls.

[2] The respondent denied that he was either drunk or disorderly. He therefore issued summons against the appellant in his capacity as Inspector Martin’s employer for payment of R75 000-00 as damages for wrongful arrest and detention. According to the official police records he was arrested at 17h15 on Saturday, 26 November 2005, and released at 10h45 the following morning. The period of the alleged unlawful detention was just under 17 hours.

[3] Inspector Martin was the only witness called to give evidence at the trial. It was common cause that he went off duty at 18h00 on 26 November 2005, shortly after completing the arrest. Other police officials were in charge of the police cells where the respondent was detained, and they processed his release the following day.

[4] The onus to prove that the arrest and detention were not unlawful rested on the appellant. He relied on the evidence of Inspector Martin and the contents of police documents and official records to discharge this onus. According to Inspector Martin he noticed the respondent and his companion approaching along a public thoroughfare to where he was standing outside the Kamesh police station smoking a cigarette. They were patently under the influence of liquor, unable to walk properly and supporting themselves with their arms around each other as they came towards him. They staggered in front of a motor vehicle which was obliged to give way to avoid a collision. They were noisy, disorderly and a danger to other road-users and themselves. When he approached them and spoke to them they behaved in an unruly and provocative manner and swore at him. He decided to place them under arrest for being drunk and disorderly. He did so.

[5] The magistrate’s judgment was that, on the evidence, Inspector Martin was justified in terms of section 40(1)(a) of the Criminal Procedure Act No 51 of 1977 in arresting the respondent without warrant on a charge of being drunk and disorderly in a public street. The section authorizes an arrest without warrant for an offence committed in the presence of a policeman. According to the evidence, the respondent’s conduct and that of his companion was sufficiently serious to justify his decision to arrest them and take them into immediate police custody. Inspector Martin was found to be a satisfactory witness whose evidence received objective and contemporaneous support from the official police records of the incident, some of them made by other officials in duty in the charge office. This finding by the magistrate was not challenged on appeal. The result was that the respondent was not entitled to damages for wrongful arrest.

[6] The magistrate’s remaining finding was however challenged. It was that the State did not discharge the onus of proving that the total period of the respondent’s detention thereafter was justified. The magistrate’s reasons state that no persuasive factors were present to indicate why he could not have been released after the elapse of the customary 4-hour “drying-out” period, that the respondent had been detained for longer than necessary, and that he should succeed on this part of the claim. He awarded R15 000-00 damages.

[7] The lawfulness of a period of detention following upon a perfectly lawful arrest was the subject of the judgments in Slabbert v Minister of Safety and Security (Eastern Cape High Court, Port Elizabeth Case No 1128/2005, 13 November 2007), Brander v Minister of Safety and Security (Eastern Cape High Court, Grahamstown (FB) CA 100/2007, 6 December 2007) and Nelson v Minister of Safety and Security (Eastern Cape High Court, Grahamstown (FB) CA 304/2006 14 June 2006). In Slabbert’s case, the court held that the arrest was justified, but that on the facts – the accused’s wife arrived at the charge office and offered to take him home – no further detention in the police cells was justified. Similarly the full court in Brander’s case held that the police acted justifiably and properly in arresting the accused and taking him to the charge office, but that it was not, on the facts, necessary to detain him in the police cells thereafter until the following morning. In Nelson’s case, the arrest was also held to be justified, and, on the facts, so was his detention until the next morning.

[8] The appellant argued that this case resembles closely the facts in Nelson’s case, and that we should come to the same conclusion, namely that in the absence of some good reason, the police were justified in keeping the respondent in the cells overnight. He stressed the passage in paragraph 8 of the judgment where the following was said of the further detention of the appellant’s son (Romano) after his arrest:

. . . it was never a reasonable option to release a person in Romano’s condition who had behaved as Romano had behaved, in the absence, at any rate, of good reason to conclude that he was no longer drunk, disorderly, riotous, aggressive, and a danger to himself and the public. 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 station 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. As [counsel] pointed out on the respondent’s behalf, persons who are drunk and disorderly, aggressive, and a danger to themselves and the public, commit misconduct of a continuing nature which will cease only after the passage of time. He also pointed to the objects of the police service laid down in section 205 of the Constitution, which impose on the police the duty to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. He argued, correctly in my view, that the courts should support the police in their efforts to achieve these objects, and, while unlawful police arrests can never be condoned, the courts should not make it unreasonably difficult for the police to carry out their ordinary, but very important, duty to maintain public order by placing unduly restrictive curbs on their discretion

to arrest and detain transgressors. There must be a balance between the protection of individual freedoms under the Constitution and the reasonable exercise of police power to maintain public order. In my opinion the facts of this case show that here the police official exercised his powers of arrest and detention reasonably and lawfully.

These considerations apply in this case as well. But each case must be viewed in the light of its own factual context. In Nelson the appellant’s son was arrested in the small hours of the morning and released at about 10h00 the next morning. Here the respondent was arrested in the early hours of the evening, at shortly after 17h00. He was released about 17 hours later. It is the length of this period which concerned the magistrate. He required the presence of ‘persuasive factors’ before he could be satisfied that it was justifiable in law to deprive a person of his liberty for that length of time for what was, after all, a petty offence.

[9] What evidence is there of persuasive factors? It is so, as Mr Beyleveld pointed out on behalf of the appellant, that the respondent, who committed the criminal conduct which gave rise to his detention, did not give evidence to suggest persuasive factors for his earlier release. If he had done so, it may have even been more difficult for the respondent to avoid liability. As it is, our law places the onus on the arrestor and not on the person detained. The magistrate held that this onus was not discharged.

[10] The notice of appeal takes issue with the magistrate’s conclusion on the specific ground that the court erred in finding that the appellant’s servants (the police) were under an obligation to release the respondent of the lapse of a 4 hour period, that the detention became unlawful after the lapse of a 4 hour period, and the respondent was accordingly entitled to compensation in respect of any period of detention beyond the 4 hour period. The complaint seems to be that the magistrate regarded release after 4 hours as obligatory. It is indeed so that the magistrate’s pertinently referred to the absence of ‘persuasive factors to indicate why [the respondent] could not have been released after the elapse of the customary 4-hour “drying-out’ period’. But I am satisfied that in the circumstances of this case this was not a misdirection. The reference to a period of 4 hours comes from Inspector Martin’s evidence when he spoke of a ‘practice’ among the police not to release a person on a charge of being drunk and disorderly before about 4 hours after his arrest so as to give him time to sober up. Inspector Martin was quick to emphasise that this is not a hard and fast rule and the time period should always be at the discretion of the police handling the situation, to be exercised in the light of the prevailing circumstances. It is clear to me that in consequence of this qualification the magistrate did not regard the 4 hour drying-out period as an instruction to be followed religiously. Detention for an arbitrary 4 hour period is criticized in the Slabbert, Brander and Nelson cases and in Van Niekerk v Minister of Safety and Security (Eastern Cape High Court, Port Elizabeth No 12121/2005, 15 June 2006) in the context of the impropriety of taking people into custody solely in order to enable them to ‘dry out’, and not for any legitimate purpose authorized by law. That criticism does not apply here. The arrest was authorized because the respondent committed an offence in the presence of the arresting officer, and his immediate release thereafter was not possible because, as in Nelson, it would have involved the further commission of the same offence for which he was arrested. All the objective facts prove that the respondent was properly arrested and detained for purposes authorised by law, and that after his attendance at court to answer to a criminal charge was achieved by the issue of a notice in terms of section 56 of the Criminal Procedure Act, he was released. This does not, however, justify an unnecessarily long period of detention between his arrest and his release.

[11] Was the period of detention in this case unnecessarily long? Inspector Martin pointed to some of the problems of early release1 – the person detained may continue not only to be a nuisance but a danger to himself and other road-users and members of the public; once released after sobering up, which would probably have been long before closing time, the pubs and shebeens would be an open invitation for him to continue from where he had left off after the unwelcome interruption of an evening of revelry; it may be dangerous to release an elderly man of 62 years on to the streets on a Saturday night in a rough area, what with muggings, robberies, assaults and the like; this person had shown himself to be a hazard to traffic and to himself before - why not again? Some of these points may in appropriate circumstances have merit. But they do not seem to me to justify keeping a man in the cells until 10h30 on a Sunday morning after being found drunk and disorderly in the street at 17h15 the evening before. As a rule, the detention overnight of a person in the position of the respondent should not automatically be categorised as unreasonably and unnecessarily long, and hence unlawful, provided that he is released as early as possible first thing in the morning. Here he was not released first thing in the morning. He was released in the middle of the morning. So was the person in Nelson’s case. But in that case the arrest had taken place in the small hours of the morning and the detention in the cells was for a comparatively short period, not a period of 17 hours.

[12] In my view, this appeal turns on the onus of proof. The magistrate’s reasoning was that on the facts before him, a further detention of something of the order of 4 hours would have been justifiable, but that there were no facts to justify a detention for as long as 17 hours. Detention for that period in these circumstances was prima facie unlawful, and the appellant did not adduce sufficient evidence to discharge the onus of proving that it was not. I can find no fault with this reasoning or the conclusion to which it inevitably leads.

[13] The appeal is dismissed with costs.

RJW JONES

Judge of the High Court

23 June 2009

DAMBUZA J I agree

N DAMBUZA

1 It should not be forgotten that Inspector Martin was not seeking to justify his own conduct. He went off duty shortly after arresting the respondent and was not responsible for the decision when to release him. The police officers who decided when he should be released were not called to give evidence. Inspector Martin’s evidence on this point was of a general, hypothetical nature.