Smith v Minister of Police

On 17 April 2014, the Plaintiff returned home in Tulbagh after work around 17:30. After the television programme 7de Laan ended at 19:00, he left home, claiming he was going to his daughter's house to get money for cigarettes. He visited his friend Patrick and shared a quart of beer. The Plaintiff claimed he was arrested at approximately 19:30 by Sergeant Beukes and Constable MacDonald. His version was that Beukes searched him for drugs, then arrested him for smelling of alcohol. He alleged the officers forced him into the police van, during which his knee struck the hard corner of the van's opening and broke. He was detained overnight and released the next morning. He subsequently required surgery for his fractured knee. The Defendant disputed this version, contending the arrest occurred around 21:30 after the Plaintiff was observed crossing a road dangerously while swaying, smelling of alcohol, and slurring his speech. The Defendant claimed the Plaintiff fled, ran into an exposed gate pole, and fell, injuring his knee. The Plaintiff sued the Minister of Police for unlawful arrest and detention, and for assault causing the knee injury.

• Whether the arrest of the Plaintiff was lawful under s 40(1)(a) of the Criminal Procedure Act 51 of 1977 read with s 76(a)(ii) of the Western Cape Liquor Act 4 of 2008.
• Whether the police officers had sufficient objective facts to form a prima facie conclusion that the Plaintiff was drunk in public.
• Whether the Plaintiff discharged the onus to prove, on a balance of probabilities, that the police officers assaulted him and caused his knee injury.
• Credibility determinations where mutually destructive versions exist and the parties bear different onuses on different claims.

The action is dismissed. The Plaintiff shall pay the Defendant's costs.

1. For an arrest under s 40(1)(a) of the Criminal Procedure Act to be lawful, the arresting officer must have had direct personal knowledge of sufficient facts at the time of the arrest to objectively justify a prima facie conclusion that the suspect committed an offence in his presence. 2. For the offence of being 'drunk in public' under s 76(a)(ii) of the Western Cape Liquor Act, the standard is whether the person is incapable of comporting himself with safety to himself or with regard to the rights of others; the level of intoxication must be assessed in the context of the activity the person is engaged in. 3. Where a witness is shown to have deliberately lied on one material point, a court may conclude that his evidence on another point cannot safely be relied upon. 4. Where the probabilities and evidence are evenly balanced, the party bearing the onus must fail.

The Court observed that the existence of a 'standard form' description of drunk persons (the 'rympie' – unsteady on feet, slurring words, smelling of alcohol) does not on its own indicate that police officers are lying when they use these common observations, because genuinely drunk people tend to exhibit these behaviours. The Court also noted that while the Plaintiff's version of events after the incident (telling his wife and hospital he was assaulted, laying criminal charges) lent some plausibility to his claim, it could not on its own constitute proof because he may have lied to conceal embarrassment or to distract from being drunk.

This case clarifies the legal standard for 'drunk in public' in the context of s 76(a)(ii) of the Western Cape Liquor Act, confirming that the test is not merely the extent of physical manifestations of intoxication but the effect of intoxication on the person's ability to act in accordance with the legal standard required in the context (e.g., as a pedestrian). It also reinforces the principle that arrests under s 40(1)(a) require objective facts in the arresting officer's knowledge, not merely a subjective belief, and illustrates the application of onus principles where a plaintiff simultaneously pursues claims for unlawful arrest (onus on defendant) and assault (onus on plaintiff).