Minister of Safety and Security and Another v Swart

In the early hours of 27 May 2007, the respondent, a police officer, was arrested without a warrant by the second appellant, a fellow police officer, on suspicion of driving a motor vehicle while under the influence of intoxicating liquor. The respondent’s vehicle had veered off a dark, unlit road with a dangerous curve and landed in a ditch. The arresting officer relied mainly on the fact that the respondent smelt of alcohol and that his vehicle had left the road. No sobriety tests were conducted, and the respondent was not observed driving. A blood test taken after the arrest revealed a blood alcohol level of 0.04 g per 100 ml, below the legal limit, and the criminal charge was withdrawn. The respondent was detained for approximately four and a half hours in poor conditions. He sued for unlawful arrest and detention; the Magistrates’ Court dismissed the claim, but the Western Cape High Court awarded damages of R50 000. The Minister and the arresting officer appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, and the award of R50 000 in damages to the respondent for unlawful arrest and detention was confirmed.

The case reinforces the strict requirements for lawful warrantless arrests under s 40(1)(b) of the Criminal Procedure Act and underscores that a reasonable suspicion must be based on objectively justifiable facts. It confirms that the smell of alcohol alone is insufficient to justify an arrest for driving under the influence and highlights the courts’ role in protecting personal liberty and dignity against arbitrary police action.