Minister of Safety and Security & another v Swart

On 27 May 2007, the respondent (a police sergeant) was arrested without a warrant by the second appellant (Constable Daniëls) at approximately 03h45 on suspicion of driving under the influence of alcohol. The respondent's vehicle had veered off the road into a ditch. When the patrol vehicle arrived, the respondent flagged them down with a torch and asked for assistance. The second appellant smelt alcohol on the respondent's breath. Based on this and the fact that the vehicle had left the road, the second appellant arrested the respondent, who resisted arrest and was only subdued with help from other officers. The respondent was detained for four and a half hours in appalling cell conditions. Blood tests revealed his blood alcohol level was only 0.04 grams per 100ml (below the legal limit), and charges were withdrawn the next day. The respondent claimed Eben was driving, not him, and that he had walked to the road to seek help. The road was dark, unlit, had a dangerous curve, was under construction with no road markings.

• Whether the arresting officer had reasonable grounds for suspecting the respondent of having committed an offence of driving under the influence of intoxicating liquor under section 40(1)(b) of the Criminal Procedure Act 51 of 1977
• Whether the arrest and detention were lawful
• Whether there was a basis to interfere with the quantum of damages (R50,000) awarded by the High Court

The appeal was dismissed with costs.

The binding legal principle is that for a warrantless arrest under section 40(1)(b) of the Criminal Procedure Act to be lawful, the arresting officer must have a suspicion based on reasonable grounds that the suspect committed a Schedule 1 offence. The reasonableness of the suspicion must be assessed objectively - whether a reasonable person confronted with the same facts would form such suspicion. A mere smell of alcohol, without other objective indicia of intoxication (such as unsteady gait, slurred speech, inability to walk straight, or bloodshot eyes), is insufficient to constitute reasonable grounds for suspecting a person of driving under the influence of alcohol. The onus rests on the arresting officer to prove the lawfulness of the arrest, as an arrest constitutes an interference with individual liberty.

The Court made observations regarding the aggravating features that justified the quantum of damages. These included: (1) the particularly demeaning nature of the arrest where a senior officer was arrested by subordinates at the same station; (2) the physical manhandling in front of the arrestee's son and commanding officer; (3) the taunting and ridicule at the charge office with officers asking who would have 'the privilege' of locking up the respondent; (4) the grave impairment of dignity and reputation; and (5) the appalling and inhumane conditions of the cell (blocked toilet, putrid smell). The Court also noted that the road conditions (dark, unlit, dangerous curve, under construction, no road markings) could explain why a vehicle might leave the road without alcohol being a factor. The Court suggested that proper investigative steps could have included asking the suspect to stand on one leg, walk, checking for slurred speech or bloodshot eyes.

This case clarifies the application of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regarding warrantless arrests based on reasonable suspicion. It establishes that a mere smell of alcohol, without other objective indicia of intoxication, is insufficient to constitute reasonable grounds for suspecting a person of driving under the influence. The case reinforces that the reasonableness of suspicion must be assessed objectively and that the onus rests on the arresting officer to prove lawfulness of the arrest. It also demonstrates the courts' willingness to award substantial damages where unlawful arrests are accompanied by aggravating circumstances, particularly where the dignity of the arrested person is seriously impaired. The case is significant in the context of police accountability and protection of individual liberty rights.