THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 194/11
Not reportable

In the matter between:

MINISTER OF SAFETY AND SECURITY                                 First Appellant
JONATHAN DANIËLS                                                         Second Appellant

and

JOHANNES FRANCOIS SWART                                                 Respondent

Neutral citation:
Minister of Safety and Security & another v Swart
(194/11) [2012] ZASCA 16 (22 March 2012)

Coram:
Mthiyane DP, Brand, Cloete and Bosielo JJA and Ndita AJA

Heard:
05 March 2012

Delivered:
22 March 2012

Summary:
Unlawful arrest – s 40(1)(b) of the Criminal Procedure Act 51
of 1977– respondent arrested without a warrant – whether
the arresting officer had reasonable grounds for suspecting
the respondent of having committed an offence of having
driven  a vehicle while under the influence of intoxicating
liquor  – quantum – whether there is an basis to interfere
with the award made by the court below.

ORDER

On appeal from:  Western Cape High Court, Cape Town (Blignault J and
Samela AJ sitting as court of appeal):

The appeal is dismissed with costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

BOSIELO JA (Mthiyane DP, Brand and Cloete JJA and Ndita AJA concurring)

[1] In the early hours of 27 May 2007, the respondent was arrested by the
second appellant without a warrant on a suspicion of driving a motor vehicle
on a public road whilst under the influence of intoxicating liquor. He was
thereafter detained at the De Doorns police station. The criminal charges
against him were withdrawn the next day after the tests revealed that his
blood alcohol level at the time of driving was below the permissible legal limit.

[2] Following this, the respondent issued summons against the appellants
in the Magistrates’ Court, Worcester for damages suffered as a result of the
unlawful arrest and detention. The magistrate dismissed his claim with costs.
However, the respondent appealed successfully to the Western Cape High
Court (Blignault J and Samela AJ) where he was awarded damages in the
amount of R50 000 plus interest and costs. The appellants are appealing to
this Court with its leave against the judgment of the court below.

[3] That facts which gave rise to this matter can be summarised as follows:
The second appellant, Mr Jonathan Daniëls, is a police constable stationed

stationed at De Doorns Police Station. Constable Sonja Nel is his colleague.
On 27 May 2007, whilst doing patrol duties in a police vehicle, they received a
radioed report of an accident in the Hex pass. Whilst on their way to the scene
of the alleged accident, they came upon the respondent who ran towards
them. Using a torch, he stopped them. The time was 03h45. The respondent
was a colleague. He asked them to help him as he had driven his vehicle off
the road. He asked if they could drive him home so that he could fetch his
other van and a rope in order to tow the damaged vehicle back home. The
second appellant explained to the respondent that they were on their way to
attend to an accident and that they would return to assist him. At this stage,
they had not seen his vehicle as it was dark. Whilst proceeding to the place
where the accident had allegedly occurred, the second appellant telephoned
the officer in the charge office, Inspector Anneke Joubert, and reported to her
that they had encountered the respondent who appeared to be under the
influence of alcohol.

[4] As they could not find the scene of accident nor the vehicle that they
were looking for, they returned to where they had met the respondent. Upon
their arrival at the scene, they saw the respondent’s van lying about 100 m
further into a ditch. According to the second appellant, it appeared as if the
respondent had either lost control of the vehicle or miscalculated a bend in the
road. He then approached the respondent and told him that he (the
respondent) knows what the procedure is when a person has caused an
accident whilst under the influence of alcohol. The second appellant then
advised the respondent of his rights and tried to arrest him. The respondent
resisted and protested that he was not driving the vehicle and further that as
could be seen the engine was not running. The respondent became
belligerent, used abusive language and refused to submit to the arrest. The
second appellant then telephoned the charge office and asked for assistance.
Two other police officers came to help, but to no avail. The respondent
ultimately gave in after his immediate senior Captain Mashishi had come to
the scene. He was then arrested on a suspicion of driving under the influence

of intoxicating liquor, whereafter he was taken to a doctor in Worcester for a
blood sample to be taken for forensic analysis.
[5] As I have already indicated the charge against the respondent was
withdrawn the following day as the result of his blood analysis showed that his
blood alcohol level was only 0.04 grams per 100 ml at the time of the incident.
He however insisted that the respondent reeked of alcohol when they met
him. He also conceded that he did not perform any tests to determine the
respondent’s state of sobriety.

[6] Constable Nel was on patrol duty with the second appellant on the
night in question. To a large extent her evidence is the same as that of the
second appellant. She was the driver of the police vehicle. After the
respondent had stopped them whilst en route to the scene of an accident, she
sensed a mild smell of alcohol when he spoke to them. She could not say
whether the respondent was drunk or not. She also confirmed that she knew
the respondent before the night in question. She conceded that it was dark so
much so that she could not even see the respondent’s eyes. As to the
condition of the road, she testified that there was a dangerous curve where
the respondent’s vehicle left the road.

[7] The evidence of Inspector Joubert was not of much value except that
she confirmed that she was in charge at the charge office that night. After she
received a report, which was radioed in from the second appellant, regarding
the allegation that the respondent’s vehicle had left the road and that he was
under the influence of alcohol, she instructed the second appellant to arrest
the respondent for driving under the influence of alcohol.

[8] The respondent testified as follows. He spent the better part of the
night (27 May 2007) with his friend, Mr Truter, at Truter’s home. Both are
police officers. He conceded that they drank some beers (no indication of the
exact quantity is given) at Truter’s home. The respondent’s ten year old son
was also present. Later on in the night the respondent decided to head home.

As he had been drinking he did not think it was safe for him to drive. He then
got one Eben, whom he had used in the past as his informer, to drive him
home. Whilst en route to his home, Eben lost control of the vehicle which
veered off the road. Eben fled the scene after the respondent threatened to hit
him. The road they traversed has a dangerous curve, no lights, was under
construction at the time and had no road markings. After the accident Eben
fled the scene. The respondent walked up to the main road to seek help. A
patrol vehicle driven by Nel, with the second appellant as her passenger,
pulled up after he had waved them down using his torch. He explained his
problem to them and they undertook to return and offer him assistance after
attending to another accident that had been reported. The respondent denied
that he had told them that he had driven his vehicle off the road. Upon their
return the two police officers never asked him what had happened. All that the
second appellant told him was that he should have known better than to drive
a vehicle whilst he was inebriated. The second appellant then tried to arrest
him but he resisted. A fierce struggle ensued until he was forced into the
police van by the second appellant, one Tokwe and Captain Mashishi.

[9] The respondent further testified that, same morning, he was taken to a
doctor where a blood sample was taken. He was thereafter detained in a
police cell. The respondent described the condition in the cell as inhumane
and atrocious eg the toilet was blocked and the smell was putrid. Whilst at the
charge office, where there were approximately five police officers, he was
taunted and ridiculed by someone asking: ‘Who is going to have the privilege
to lock up Blackie?’

[10] The following essential facts appear to be common cause:
(a) The respondent, the second appellant and Nel are all police officers, and
known to one another;
(b) all three of them were stationed at the same police station namely De
Doorns;
(c) the respondent was their senior;

(d) the relationship between the respondent and the second appellant was
stormy (stormagtig);
(e) on 27 May 2007 both the second appellant and Nel were on patrol duty;
(f) they were acting as police officers within the scope of their duties under the
first appellant;
(g) they encountered the respondent, whose vehicle had veered off the road
and fallen into a ditch;
(h) the road where the vehicle left the road was dark with no lights, has a
dangerous curve, was under construction and had no road markings;
(i) the respondent stopped them and requested assistance;
(j) both the second appellant and Nel smelt liquor on the respondent’s breath;
(k) the second appellant then telephoned Inspector Joubert who was in
charge at the charge office and reported to her that the respondent’s vehicle
had gone off the road and that he was under the influence of alcohol;
(l) subsequently, the second appellant tried to arrest the respondent who in
turn resisted;
(m) the respondent was only subdued and arrested with the help of one
Tokwe and Captain Mashishi;
(n) a blood sample was subsequently drawn from the respondent and sent for
analysis;
(o) the results were a blood alcohol level of 0,04 grams per 100 ml;
(p) the prosecutor issued a nolle prosequi certificate;
(q) the respondent was detained for four and a half hours in the police cells;
and
(r) the conditions in the cell were inhumane and horrid.

[11] The issues raised in this appeal are whether, based on the facts known
to the second appellant at the time when he observed the respondent at the
scene, it can be found that the respondent was the driver of the vehicle that
went of the road and whether his suspicion, that the respondent was at the
time under the influence of intoxicating liquor, was reasonable.

[12] Counsel for the appellants submitted that the circumstances under
which the respondent was arrested justified a reasonable suspicion, amongst
others, that he was the driver of the vehicle that had veered off the road. In
fact, counsel argued that this is what the respondent said to both the second
appellant and Nel when they enquired what had happened. Counsel argued
further that, in absence of any reasonable explanation from the respondent
regarding how his vehicle left the road and landed in a ditch, it was
reasonable for the second appellant to conclude that it was due to the
respondent’s drunken state. Therefore, the conclusion is that the second
appellant was justified in arresting the respondent as he harboured a
reasonable suspicion that the respondent drove the vehicle whilst he was
under the influence of alcohol.

[13] On the other hand, Mr Nortier for the respondent argued that the mere
fact that the respondent’s vehicle had veered off the road and that he smelt of
alcohol is not sufficient proof that he was under the influence of alcohol when
he drove the vehicle and further that the cause of the accident was as a result
of his intake of alcohol. Mr Nortier submitted that by failing to make proper
enquiries as to how the respondent’s vehicle had left the road, the court is left
with no evidence but mere doubt, suspicion and pure speculation. He further
argued that such an occurrence can be caused by a variety of factors other
than drunkenness. It is common cause in this case that the road on which the
vehicle in question was travelling was dark with no lights and has a dangerous
curve. In addition there were road constructions with no road markings to alert
road-users of any possible danger.

[14] Concerning the smell of alcohol, Mr Nortier submitted that the mere fact
that the respondent smelt of alcohol does not necessarily mean that his
mental faculties and ability to drive a vehicle was so seriously affected that he
was not fit to drive. He contended that because none of the two police officers
witnessed the respondent driving the vehicle they could not testify regarding
the manner in which the vehicle was driven. In addition he submitted that the

police officers should have made more enquiries to determine the
respondent’s level of drunkenness. He suggested that the police could have
asked him to stand on one leg, asked him to walk, spoken to him to determine
if his speech was slurred or they could have checked if his eyes were
bloodshot. In the absence of such further indications of drunkenness, Mr
Nortier argued that the mere evidence of the smell of alcohol alone is hardly
sufficient to sustain an inference of drunkenness.

[15] The respondent alleged that it was Eben who was driving his van when
it veered off the road. The second appellant denied that the respondent ever
mentioned Eben to him. However, on the other hand Nel testified that the
respondent’s son told her that it was his father who was driving. Nel confirmed
that the respondent told her about Eben. It should be clear that as the
respondent never said anything to the second appellant about Eben, he could
not have formed a suspicion that the respondent was lying about who drove
the vehicle in an attempt to avoid being arrested for drunken driving.

[16] Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 provides
that:
‘40 Arrest by peace officer without warrant
(1) … A peace officer may without warrant arrest any person–
(b) whom he reasonably suspects of having committed an offence referred in
Schedule 1, other than the offence of escaping from lawful custody.’

[17] It should be clear from s 40(1)(b) that the following are the essential
jurisdictional facts which have to be present to justify an arrest without a
warrant:
(a) the arresting officer must be a peace officer;
(b) the arresting officer must entertain a suspicion;
(c) the suspicion must be that the suspect (the arrestee) committed an offence
referred to in Schedule 1; and
(d) the suspicion must be based on reasonable grounds.

See Duncan v Minister of Law & Order 1986 (2) SA 805 (A) at 818G-H;
Minister of Safety & Security v Sekhoto & another 2011 (1) SACR 315 (SCA)
para 6.

The real dispute in this case revolves around the question whether the
requirements of paragraph (d) above relating to the reasonableness of the
suspicion, have been met.

[18] Based on the facts of this case the key question that  merits
consideration, is whether the mere smell of alcohol was sufficient to give rise
to a reasonable suspicion on part of the second appellant that the respondent
was under the influence of intoxicating liquor and that for that reason he could
not drive a vehicle.

[19] It is well-established that the onus rests on the arresting officer to prove
the lawfulness of the arrest. This is so because as Rabie CJ stated in Minister
of Law & Order & others v Hurley & another 1986 (3) SA 568 (A) at 589E-F:
‘An arrest constitutes an interference with the liberty of the individual concerned, and
it therefore seems to be fair and just to require that the person who arrested or
caused the arrest of another person should bear the onus of proving that his action
was justified in law.’

[20] It is furthermore trite that the reasonableness of the suspicion of any
arresting officer acting under s 40(1)(b) must be approached objectively. The
question is whether any reasonable person, confronted with the same set of
facts, would form a suspicion that a person has committed a Schedule 1
offence. M v Minister of Safety & Security 2009 (2) SACR 291 (GSJ).

[21] At the risk of repetition the only evidence on which the second
appellant decided to arrest the respondent, is the fact that he smelt of alcohol
and that his vehicle had left the road and landed in a ditch. There is no
evidence that the respondent was unsteady on his feet, that his speech was

slurred, that he could not walk in a straight line or that his eyes were
bloodshot. These are the well-known indications of a person who is under the
influence of alcohol.

[22] On the contrary, the respondent behaved like a person in full control of
his faculties. When he saw their vehicle he ran towards them and stopped
them. He used a torch light to flag them down. Furthermore, when the
respondent requested that they drive him to his home to fetch his other van,
he spoke in a friendly and coherent manner. All these actions indicated that
the respondent was in full control of his senses.

[23] To my mind to conclude that the respondent was under the influence of
alcohol based on the mere fact that he smelt lightly of alcohol, is more of a
quantum leap in logic. It follows in my view that the second appellant’s
suspicion was not based on reasonable grounds and therefore that the
respondent’s arrest and detention were unlawful.

[24] I now wish to deal with quantum. This matter has serious aggravating
features. The respondent is a police officer, a sergeant of some 16 years’
standing, with both the second appellant and Nel being his subordinates.
They were all stationed at the same police station. The manner in which he
was physically manhandled and thrown into the police van was truly
demeaning. This happened in front of his son and his commanding officer.
Whilst at the charge office, he was taunted and ridiculed in the presence of
junior officers. The fact that some police officers were asking who was going
to have the privilege of taking the respondent to the cells makes the whole
arrest and detention even more demeaning. Clearly his dignity and reputation
was gravely impaired. He spent four and a half hours in detention for no good
reason. I am unable to find any misdirection in the award made by the court
below which warrants any interference by this Court.

[25] In the circumstances the appeal is dismissed with costs.

____________
L O Bosielo
Judge of Appeal

APPEARANCES:

For Appellant:

A Schippers SC (with him S O’Brien)

Instructed by:

State Attorney, Cape Town

State Attorney, Bloemfontein

For Respondent:

LR Nortier

Instructed by:

Conradie Incorporated, Worcester

Phatshoane Henney Inc., Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
22 March 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

MINISTER OF SAFETY AND SECURITY & ANOTHER V SWART (194/11) [2012] ZASCA 016
(22 MARCH 2012)

The Supreme Court of Appeal (SCA) today dismissed an appeal by the Minister of Safety and
Security and a police officer in his employ (the second appellant) against an order of the Western
Cape High Court, Cape Town declaring the arrest and detention of Mr Swart (the respondent) to
have been unlawful and directing them to pay the respondent an amount of R50 000 plus interest
as damages.

The second appellant had arrested and detained the respondent without a warrant on suspicion of
driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. The only
evidence relied upon by the second appellant in making the arrest was the fact that the respondent
smelt of alcohol and that his vehicle had left the road and landed in a ditch. The criminal charge
against the respondent was later withdrawn after medical evidence showed that his blood alcohol
level was below the permissible legal limit. He then instituted an action against the Minister and the
second appellant in a magistrates’ court claiming damages for the arrest and detention, arguing that
they were unlawful. The action was dismissed. He successfully appealed to the high court. The
Minister then appealed to the SCA against the order of the high court.

Before the SCA the key issue was whether the mere smell of alcohol was sufficient to give rise to a

reasonable suspicion on the part of the second appellant that the respondent was under the
influence of intoxicating liquor and for that reason he could not drive a vehicle. The SCA answered
the question in the negative. It held that the second appellant’s suspicion was not based on
reasonable grounds and therefore that the respondent’s arrest and detention were unlawful. The
SCA stated that the respondent had behaved like a person in full control of his faculties at the time
of his arrest. On the issue of the quantum of damages, the SCA, with reference to the aggravating
features accompanying the arrest and detention, held that it was unable to find any misdirection in
the award made by the high court warranting its interference.