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Reportable

In the High Court of South Africa

(Eastern Cape Division) Case No CA 156/2007

In the matter between

BRADLEY JACOBS Appellant

and

THE MINISTER OF SAFETY AND SECURITY Respondent

JUDGMENT

Summary Appeal – wrongful arrest and detention – arrest without warrant – whether the appellant’s conduct was ‘drunk and disorderly’ within the meaning of section 59(1)(d)(i) of the Eastern Cape Liquor Act 10 of 2004 – the respondent was held to have discharged the onus of proving that the arrest was lawful in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977 by adducing evidence that the appellant was arrested for being drunk and disorderly in a public street in the presence of the arresting officer – the meaning of ‘disorderly’ was discussed.

JONES J

[1] The appellant was the plaintiff’s minor son in the court below. In that court damages were claimed for wrongful arrest, detention and assault by his mother as plaintiff, acting in her capacity as his guardian. The claim for damages for assault was not pursued. The appellant has now attained majority and has been substituted as the appellant in terms of rule 15.

[2] The trial court dismissed the claim. It upheld the defence that the arrest was lawful in terms of section 40(1)(a) of the Criminal Procedure Act 51 of 1977, which permits an arrest without warrant for an offence committed in the arresting officer’s presence. The court held on the facts that the appellant had been lawfully arrested for being drunk and disorderly in a public street in contravention of section 59(1)(d)(i) of the Eastern Cape Liquor Act 10 of 2003. The record of evidence reveals a measure of confusion during the trial about whether the new Eastern Cape Liquor Act or the South African Liquor Act, since repealed in the Eastern Cape, applied at the time of the arrest, and the terms of a notice of amendment to the plea setting out precisely the defence relied upon. Indeed, the amendment does not appear in the record. In the course of arguing the appeal before us Mr Joostefor the appellant has explained that the defence was based on section 40(1)(a) and he has conceded that the trial magistrate’s additional reasons for judgment correctly reflect the issue before him and the issue on appeal before us. That issue was and is whether the defence in fact discharged the onus of proving that the appellant was drunk and disorderly within the meaning of section 59 of Eastern Cape Liquor Act, which was the legislation applicable at the time.

[3] The only person who gave evidence of the circumstances of the arrest was Constable FC Holland who performed the arrest. He testified that on the night of 28 August 2004 he and a fellow police officer were in their vehicle doing prevention of crime duties, which involved patrolling the Bethelsdorp area of Port Elizabeth. Some time after midnight he saw the appellant walking towards their vehicle in St Martin Street, a public road in the area. The appellant walked into the road immediately in front of their vehicle, forcing the driver to bring it to a stop. Holland described his condition; he ‘was all over the road, we could see that he was drunk’; ‘he couldn’t stand on his feet’; ‘he was walking around as a drunk person would walk’; ‘it was not safe for him because it was in the middle of the road whilst we were driving’. Holland got out of the vehicle and went up to him. He observed that the appellant smelt of liquor and that his eyes were red. The appellant swore at him in loud, abusive terms and, with a measure of hostility, insulted him for being a policeman. Holland arrested him for being drunk, being ‘riotous’, and behaving in a disorderly fashion in a public street. He took the appellant to the police station, did the necessary formalities to book him into the cells, and caused his detention overnight. The following morning the appellant was given a J543 notice in terms of section 56 of the Criminal Procedure Act to appear in court on 30 September 2004, and was thereafter released.

[4] Holland was not cross-examined about his description of the appellant’s condition and conduct on the night in question. No evidence was led to contradict it. Mr Jooste was therefore confined to an argument that an acceptance of the facts deposed to by Holland did not amount to proof of the commission of an offence. The offence in question is set out in section 59(1)(d)(i) of the Eastern Cape Liquor Act which provides that nperson may be drunk and disorderly in or on any road or street. Section 61 provides for a penalty of a fine, or imprisonment for a period up to one year, or both.

[5] Mr Joosteconceded that the incident took place in Holland’s presence in a public street. But he argued that Holland’s evidence fell short of proof that the appellant had committed an offence within the meaning of the section. His argument stressed that unlike the wording of the old Liquor Act, the present legislation does not make it an offence to be drunk in a road or street. The new section requires proof that he was both drunk and disorderly. Mr Jooste submitted that on the evidence the appellant was not drunk in the sense of being unable to control his faculties. He submitted further that even if he was drunk, that in itself was insufficient in the circumstances to give rise to the inference that he was disorderly, and the other evidence was insufficient to show disorderly conduct.

[6] The trial magistrate did not agree. His carefully considered reasons, which refer not only to applicable long-standing authority but also to recent unreported decisions of this court, contain no misdirections of law or fact. The magistrate’s conclusion was that the undisputed evidence indeed proved the commission of the offence alleged. His reasons referred inter alia to the definition of the term ‘drunk’ in Moses v Minister of Law and Order 1995 (2) SA 518 (C) and found as a fact that the appellant’s consumption of liquor had caused him to lose control of his mental and physical faculties to the point of staggering into the road in front of an oncoming vehicle. This conclusion cannot be faulted. The evidence showed that the appellant was drunk.

[7] In my opinion the evidence also showed that the appellant behaved in a disorderly manner. The ordinary meaning of the term ‘disorderly’ is wide, embracing conduct as serious as public violence at one end of the scale and conduct less serious than a breach of the peace at the other. The COED defines ‘disorderly’ as ‘involving or contributing to a breakdown of peaceful and law-abiding behaviour’ and ‘disorderly conduct’ as meaning ‘unruly behaviour constituting a minor offence’. The SOED has similarly wide definitions. Milton and Cowling, South African Criminal Law and Procedure Vol 3 Statutory Offences put it thus at F4-53, quoting Black’s Law Dictionary, and Scottish and New Zealand cases:

‘A person is disorderly who violates the rules of good order and behaviour. The term has been construed as indicating a level of behaviour that falls short of a breach of the public peace. The test of whether behaviour is disorderly has been stated to be whether the behaviour in question not only violates the rules of good behaviour and good manners of well-conducted and reasonable people but is such as to ‘tend to annoy or insult such persons as are faced with it – and sufficiently seriously to warrant the interference of the criminal law’.

In my view, the appellant’s conduct in staggering drunkenly into the road in the face of oncoming traffic fits neatly into this description of what is meant by disorderly conduct, and this conclusion is reinforced by his loud, insulting and abusive utterances to the police.

[8] In the result I can find no basis for departing from the conclusions of the trial magistrate on the facts. The appeal is dismissed, with costs.

RJW JONES

Judge of the High Court

9 June 2008

LIEBENBERG J: I agree.

HJ LIEBENBERG

Judge of the High Court

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