IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 1299/06

In the matter between:

THANDILE FUNDA Plaintiff

and

THE MINSTER OF SAFETYAND SECURITY Defendant

JUDGMENT

MILLER, J.:

[1] The plaintiff sues the defendant for damages in respect of unlawful

arrest, unlawful detention and malicious prosecution. The total amount

claimed by the plaintiff for damages is R320 000-00.

[2] It is common cause that the plaintiff was the driver of a taxi which

was involved in an accident in the Tsolo district on 28 August 2005, that

members of the South African Police Service (SAPS) approached him when

he was in St Lucy’s Hospital in Tsolo, that he was then taken to the Tsolo

Police Station and from there to Mthatha where he underwent a breathalyzer

test at approximately 20h39, that he was then taken back to the Tsolo police

station where he was detained, that he appeared in court on 30 August 2005

and was granted bail which he paid on 31 August 2005 and was released,

that he was prosecuted for drunken driving and reckless and negligent

driving and that he was discharged at the close of the State Case.

[3] The plaintiff testified. He stated that shortly before 17h00 on 28 August 2005 the taxi that he was driving was involved in an accident when arear wheel of the taxi came off. He said the accident scene was attended by police officials, including Inspector Bootram. Inspector Bootram asked him for his driver’s licence and he handed over his PDP driving licence to him. Inspector Bootram then allowed him to go to hospital and he left the scene and went to St Lucy’s Hospital.

[4] He says that when he was at the hospital waiting to be seen by a doctor, the police arrived. They spoke to some of the injured passengers whowere in his taxi and then he was again approached by Inspector Bootram. Inspector Bootram again asked him for his driver’s licence and he informed him that he had already given his PDP licence to him. Inspector Bootram denied this and a relative of the plaintiff was then sent to fetch the plaintiff’s other driving licence. When such licence arrived he handed it to Inspector Bootram.

[5] Inspector Bootram then said that he was arresting him and did not tell

him the reasons for the arrest, nor did he inform him of his rights. He was

then handcuffed and forcefully taken to the police van, being kicked in the

process. They then went to the Tsolo police station.

[6] He says that they then changed vehicles and he, together with Inspector Bootram and another policeman got into a sedan vehicle and droveto Mthatha, He said that Inspector Bootram drove in an erratic manner, oftensuddenly braking for no good reason which caused him to be tossed around in the vehicle as he was still handcuffed with his hands behind his back.

[7] When in Mthatha he said that they first went to a residential flat as

Inspector Bootram wanted to visit a lady. From there they went to another

building where they met another policeman. A breathalyzer test was then

conducted on him. He said that the other policeman showed him how to

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blow in the pipe. He did so and then that policeman also blew into the pipe.

He then told the plaintiff to blow into the pipe again. He did so and the

policeman then took out that pipe and placed another pipe into the machine.

He said that Inspector Bootram then blew into that pipe and then gave it to

the plaintiff and told him to also blow into it, which he did. He was then told

that he was drunk. He was then ordered to sign a piece of paper, the contents

of which he did not know.

[8] He said that his handcuffs were taken off in the presence of the other policeman prior to the conducting of the breathalyzer test. After completion of the test he was again handcuffed and was then taken back to the vehicle. They then drove to a residential flat which was entered by Inspector Bootram while he and the other policeman waited in the vehicle. After sometime Inspector Bootram came back to the vehicle. He was with a lady. He kissed her and he then entered the vehicle and they drove back to the Tsolo police station.

[9] They arrived there, he said, at 23h00 and he was then detained in a cell. He said that Inspector Bootram thereafter, that same night, returned andsaid he would take him to hospital. He was then taken to hospital where he stayed under police guard, until approximately 11h00 on 29 August 2005 when he was again detained in a cell at the Tsolo police station.

[10] He was taken to court on 30 August 2005 where he was informed of the charges against him and he was granted bail in the amount of R500-00. He was later tried and was acquitted. He was represented at his trial by an attorney at a cost of R10000-00.

[11] The plaintiff denies that he consumed any alcohol on 28 august 2005.

[12] The plaintiff closed his case after he gave his evidence.

[13] Inspector Bootram testified that he attended the scene of the accident.

When he arrived there, there were already other police officers there. He

said that when he got there none of the victims nor the driver of the vehicle

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were there. He then went to St Lucy’s hospital where he spoke to some of

the victims and the plaintiff.

[14] He said he asked the plaintiff for his driver’s licence and the plaintiff

handed him his code 10 PDP licence. While talking to the plaintiff he said

that the plaintiff’s breathe smelt of liquor and he noticed that the plaintiff’s

eyes were bloodshot. The plaintiff’s speech was slurred and he suspected

that the plaintiff was under the influence of alcohol and that he had been in

such condition when the accident occurred.

[15] He then asked the plaintiff if he had been drinking liquor and the

plaintiff denied this. He said that he then asked if the plaintiff will undergo a

breathalyzer test and the plaintiff agreed. He said that this occurred at

approximately 18h30, although he was not sure of the time.

[16] They then went to the police station in Tsolo where Inspector Bootram

got another vehicle. They then drove to Mthatha for the test to be done as it

could not be done in Tsolo. He said that he drove the vehicle and the plaintiff

sat on the back seat together with another policeman. He said that the

plaintiff at that stage was not under arrest and was not handcuffed.

[17] They arrived at Mthatha at approximately 20h00. He said that he went

directly to the SAPS Control Centre at the PRD Building in order to make

arrangements with a traffic officer to take the test. An arrangement was

made with Superintendent Millie for the test to be done in the Botha Sigcau

Building. They then went to the Botha Sigcau Building where they met

Superintendent Millie.

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[18] He said that Superintendent Millie then explained the testing process

to the plaintiff and the plaintiff then blew once into the machine. The

machine then printed out a reading which reflected the blood alcohol content

to be 0.32, which was above the legal limit of 0.24. He then informed the

plaintiff that he was arresting him for driving under the influence of alcohol

and, he said, he informed the plaintiff of his rights. The plaintiff was then

handcuffed and they returned to the Tsolo police station where the plaintiff

was detained in the cells. The SAP 14 register reflects that the plaintiff was

detained at 22h25. He said that after that he had no further contact with the

plaintiff. He wrote a statement and played no further role in the investigation

of the case.

[19] Captain Mtirara was the investigating officer in the case against the plaintiff. He said he became involved in the case on 29 August 2005 when he received the docket. He met the plaintiff at the Tsolo police station at approximately 14h00 on that day. A warning statement was taken from the plaintiff by Inspector Nqeto in his presence. He said that the plaintiff was informed of his rights before the statement was taken. In that statement the plaintiff stated that he does not deny the allegations against him and that he had “partaken in liquor.”

[20] Captain Mtirara thereafter obtain further statements from potential

witnesses, including Superintended Millie. The completed docket was then

taken to the public prosecutor for a decision whether to prosecute or not. He

said that the plaintiff’s first appearance in Court was on 30 August 2005. The

prosecutor decided to prosecute the plaintiff. Captain Mtirara stated that he

was not involved in the taking of such decision.

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[21] Superintendent Millie testified. He stated that he was on standby duty

on 28 August 2005. During the evening he was called by the radio and

instructed to go to his offices to conduct a breathalyser test. He did so and

there he met Inspector Bootram and the plaintiff. He too said that he could

smell liquor in the plaintiff’s breath and that the plaintiff’s eyes were

bloodshot.

[22] He said that he explained the testing machine and the testing procedure to the plaintiff and the plaintiff then blew once into the machine through a new pipe. He denied that anybody else blew into the machine.

[23] Mr Sanele Bentswana is a public prosecutor at the Tsolo Magistrates’

Court. He prosecuted the case against the plaintiff. He stated that he received

the docket on the day of the trial. He had the authority to decide whether to

proceed with the case or to withdraw it. He read the docket and decided to

proceed with the case as he was of the view that there was a prima facie case

against the plaintiff.

[24] It can be seen from the above synopsis of the evidence that there is

little in common between the versions of the plaintiff and the defendant. The

plaintiff presents a picture of the arresting officer, Bootram, arresting him at

the hospital without informing him of the reason of the arrest, of thereafter

assaulting and maltreating him, of attending to personal matters in Mthatha

before taking him to be tested for his blood/alcohol content, of tampering

with the testing by lowing into the breathalyser himself before the plaintiff

blew into the machine and of laying a false charge against him. The

defendant, on the other hand, presents a version in terms of which the

arresting officer formed a reasonable suspicion that the plaintiff had

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committed a Schedule 1 offence, the breathalyser test was properly

conducted, the plaintiff was lawfully arrested in Mthatha after the result of

the testing was known, the plaintiff was then lawfully detained and

thereafter, after completion of the investigation, the docket was submitted to

a member of the National Prosecuting Authority who independently decided

that the plaintiff be prosecuted.

[25] The plaintiff was, in my view, an unsatisfactory witness whose

evidence was neither truthful nor reliable. His assertion that he had not

consumed any liquor is, to my mind, clearly mendacious – not only is it

contradicted by the results of the breathalyser test but also by his own

statement, Exhibit “F”, in which he states that he consumed liquor. The

results of the breathalyser test, on the other hand, confirms the evidence of

both Inspector Bootram and Superintendent Millie that the plaintiff’s breath

smelled of liquor and that his eyes were bloodshot. It is also, in my opinion,

improbable that Inspector Bootram would have taken the plaintiff all the

way to Mthatha for the test if he had no suspicion at all that the plaintiff had

consumed liquor.

[26] Superintendent Millie was, in my view, a good witness. He gave his evidence in a straightforward manner and according to him the breathalyser test was conducted according to correct procedure and in a proper manner. He was not even cross-examined on the manner in which he conducted the test. I have no hesitation in accepting his evidence as being truthful and reliable. Superintendent Millie stated that the plaintiff was the only person who blew into the pipe. The plaintiff’s evidence that Inspector Bootram also blew into the pipe is therefore rejected as being false.

[27] The question that then arises is why did the plaintiff give such false evidence. The only reasonable answer, in my view, is that he wanted to

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create the impression that if it was Inspector Bootrams breath, and not his, which led to the result of the test. This in turn adversely affects the credibility of his evidence that Inspector Bootram went visiting a lady prior to the test, which evidence was, in all probability, given to allow the Court toinfer that Inspector Bootram had consumed liquor while visiting the lady. His evidence in this regard is also rejected as being false.

[28] The plaintiff in his evidence stated that Inspector Bootram arrested

him at the hospital without informing him of the reason of the arrest. This

evidence is contradicted in his Particulars of Claim where, in paragraph 12

thereof, it is alleged that he was “being arrested for driving the motor vehicle

under the influence of liquor.”

[29] Inspector Bootram, in my opinion, was a satisfactory witness. His

evidence, in so far as it relates to the conducting of the breathalyser test, is

corroborated by that of Superintendent Millie. His version is also more

probable than that of the plaintiff. He had nothing further to do with the

investigation of the case after 28 August 2010 and plaintiff’s contention that

inspector Bootram assaulted him in public at the hospital by pulling him by

the neck and kicking him on the way to the police vehicle are rejected.

[30] I am also of the view that both Captain Mtirara and Mr Bentswana were truthful and reliable witnesses. I accordingly reject the evidence of the plaintiff and accept that of the defence witnesses.

[31[ Section 65(1) of Act 93 of 1996 provides that no person shall drive a

motor vehicle while under the influence of intoxicating liquor and section

89(2) of that Act provides that any person convicted of contravening section

65 of that Act shall be liable to a fine or to imprisonment for a period not

exceeding six years. Included in Schedule 1 of the Criminal Procedure Act,

51 of 1977 is “any offence … the punishment wherefor may be a period of

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imprisonment exceeding six months without the option of a fine.” Driving

under the influence of liquor is therefore a Schedule 1 offence.

[32] The plaintiff was arrested without a warrant. However, section 40(1)

(b) of Act 51 of 1997 provides that a peace officer may arrest a person whom

he or she reasonably suspects of having committed an offence referred to in

Schedule 1.

[33] The question that then arises is whether Inspector Bootram’s suspicion

that the plaintiff had been driving under the influence of liquor was a

reasonable suspicion. In Duncan vs Minister of Law and Order 1984(3)

SA 460(T) it was held, inter alia, that the word “suspicion” implies on

absence of certainty or adequate proof and that the Section 40(1)(b)

requirement of “reasonable suspicion” does not imply that there must be a

prima facie case against the suspect. In Duncan vs Minister of Law and

Order 1986(2) SA 805 (AD) it was held that an arrest made without a

warrant under section 40(1)(b) is not unlawful where the arrestor entertains

the required reasonable suspicion but intends to make further enquiries after

the arrest before finally deciding whether to proceed with a prosecution,

provided it is the intention throughout to comply with section 50 of Act 51

of 1977.

[34] The plaintiff was a driver of a vehicle which was involved in an accident in which an unknown number of people were injured. Inspector Bootram confronted the plaintiff at the hospital shortly after the accident and, according to his observations, the plaintiff was under the influence of liquor because of his slurred speech, his bloodshot eyes and the smell of alcohol on his breath. I am of the opinion that in these circumstances his

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suspicion that the plaintiff had been driving under the influence of liquor was entirely reasonable.

[35] Section 50 of Act 51 of 1977 provides, inter alia, that a person who is

arrested without a warrant for allegedly committing an offence shall, as soon

as possible be brought to a police station and that if he is not granted bail in

terms of section 59 he shall be brought before a lower Court as soon as

reasonably possible but not later than 48 hours after the arrest.

[36] In S vs Purcell – Gilpin 1971(3) SA 548 (RAD) it was stated that a

peace officer who suspects that a crime has been committed must, if he has

the opportunity, take the trouble to confirm his suspicion or allow it to

dissipate. In this matter it is apparent that Inspector Bootram took

expeditious steps to confirm his suspicion by immediately proceeding to

Mthatha, via the police station to change vehicles, in order to confirm his

suspicion by subjecting the plaintiff to a breathalyser test. He explained that

such a test could not be undertaken at Tsolo. Once the test was completed he

formally arrested plaintiff and directly returned him to the police station

where he was detained.

[37] I agree with the submission made by Ms Da Silva, who appeared for

the defendant, that the fact that the breathalyser test was conducted more

than two hours after the time of the accident has no bearing on the

lawfulness or otherwise of the plaintiff’s arrest or detention. The plaintiff

was not even charged of contravening section 65(5) of the Road Traffic Act,

93 of 1996 (driving with concentration of alcohol over the limit). He was

charged with contravening section 65(1) (driving while under the influence

of intoxicating liquor) and with contravening section 63(1) (reckless or

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negligent driving). The two hour presumption contained in section 65(6)

only relates to prosecutions for a contravention of the provisions of section

65(5).

[38] I am satisfied that the arrest of the plaintiff was a lawful arrest in terms of section 40(1)(b) and that the provisions of section 50(1)(a) of that Act were not contravened.

[39] It follows accordingly that the detention of the plaintiff in the cells on the night of 28 August 2005 was also not unlawful. Mr Matebese, who appears for the plaintiff, has argued that the failure by the police to release the plaintiff on bail in terms of section 59 Act 51 of 1977 prior to his appearance in court on 30 August 2005 was unlawful.

[40] Section 59(1)(a) provides that an accused who is in custody in respect

of any offence, other than an offence referred to in Part 2 or Part 3 of

Schedule 2 may, before his or her first appearance in Court, be released on

bail in respect of such offence by any police official of or above the rank of

non-commissioned officer, in consultation with the police official charged

with the investigation, if the accused deposits at the police station the sum of

money determined by the police official. It is clear from this provision that

the police official has a discretion to release a suspect on so-called ‘police

bail’. The plaintiff was not, in my view, charged with a trivial offence. He

was a driver of a taxi conveying members of the public and there was at the

time, a reasonable suspicion that he was under the influence of alcohol when

the accident occurred. There is also no evidence that the plaintiff made

representations that he be released on police bail. In these circumstances I do

not believe that the fact that plaintiff was not released on police bail

amounted to an actionable unlawful omission on the part of any police

official. The plaintiff appeared in court within 48 hours of his initial

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detention. I am therefore of the view that his detention. Like his arrest, was

lawful.

[41] With regard to the plaintiff’s claim for malicious prosecution, the

essential elements that must be proved in such a claim are (a) that the

defendant has set the law in motion, (b) that the defendant acted without

reasonable and probable cause, (c) that the defendant acted with malice and

(d) that the prosecution failed. See Minister of Justice and Constitutional

Development and Others vs Moleko 2009(2) SA 585(SCA) at para 8.

[42] The plaintiff, in my opinion, has only proved the first and last

mentioned of these essential elements. The police did have reasonable and

probable cause to arrest and charge the plaintiff and to investigate the case

against him and submit the docket to the prosecutor for decision to

prosecute. They would have failed in their duty if they did not take such

action, bearing in mind that shortly after the accident the plaintiff appeared

to be under the influence of intoxicating liquor and that the results of the

breathalyser test indicated that his blood/alcohol content was over the legal

limit. The only evidence suggesting any malice on the part of the police is

that of the plaintiff when he stated that he had not consumed any liquor and

that Inspector Bootram blew into the pipe during the breathalyser test. That

evidence has been rejected as being untruthful.

[43] Inspector Bootram said that he had nothing further to do with the investigation of the case after 28 August 2005 and Captain Mtirara said that after the investigation of the case he submitted the docket to the prosecutor for decision and that he played no role in the decision to prosecute the plaintiff. Such evidence stands uncontroverted and is accepted.

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[44] It must therefore be concluded that the decision to prosecute the

plaintiff was made by a member of the National Prosecuting Authority. The

defendant in this matter is not responsible for or vicariously liable for such

decision. See Moleko’s case (supra) at para 18.

[45] In the result the plaintiff’s claim must fail and the following order is made;

The plaintiff’s claims are dismissed with costs.

JUDGE OF THE HIGH COURT

HEARD ON : 26 JANUARY 2010DELIVERED ON : 18 FEBRUARY 2010

COUNSEL FOR THE PLAINTIFF : Mr MatebeseINSTRUCTED BY : A. S. Zono & Associates

COUNSEL FOR THE DEFENDANT : Ms Da SilvaINSTRUCTED BY : The State Attorney

: c/o Mnge & Associates

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