A man is suing the Royal Eswatini Police Service (REPS) for E15 000 for what he described as “unlawful detention.”
This comes after Bongani Zikalala was arrested for drink-driving and kept in custody overnight, yet according to him, police were supposed to release him shortly after extracting his breath specimen, as per the provisions of Section 91(9) of the Road Traffic Act 2007.
Zikalala is represented by Ben J. Simelane and Associates in the matter.
According to a letter of demand dated November 4, which this publication is in possession of, the National Commissioner of Police, Vusi Manoma Masango, has been cited as the sole respondent. On or about November 2, Zikalala was arrested and charged with the offence of driving under the influence of intoxicating liquor under the Road Traffic Act 2007.
“Our client was subjected to a breathalyser test and it was determined that the concentration of alcohol was 0.59 milligrammes per litre (mg/l),” reads part of the letter of demand.
The letter further highlights that despite the examination and results being obtained early in the evening, Zikalala was allegedly detained for the whole night until he appeared before court on November 3, whereas he should have been dealt with according to the law.
It further states that the detention of Zikalala beyond the examination and results was unlawful under Section 91(9) of the Road Traffic Act 2007.
“We are instructed to demand, as we hereby do, payment in the sum of E15 000 as damages for the unlawful detention of our client on November 2. Should we not receive payment within 90 days hereof, we shall issue summons accordingly,” reads the letter of demand in part.
Shedding light on detention, lawyer Sibusiso Nhlabatsi said that according to the law, the detention of a suspected drink-driver was specifically for the purpose of extracting the breath specimen to determine whether the individual was driving under the influence of alcohol.
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He said once the breath specimen had been obtained, the suspect should be released and summoned to appear before court if found to be driving while intoxicated.
Nhlabatsi said the least the police should do after extracting the breath specimen and verifying intoxication was to prevent the suspect from continuing to drive, as he or she would be considered unfit to do so under the law.
He added that prolonged detention of suspected drink-drivers should only occur when there was no breathalyser available, in which case a blood specimen should be drawn by a medical doctor, making the detention justifiable.
However, he said as soon as the blood specimen had been drawn, the individual should be released and summoned to appear before court at a later date.
Nhlabatsi said as per Section 91(9) of the Road Traffic Act 2007, prolonged detention of drink-driving suspects was not only unlawful but also carried an element of punitive punishment.
He said this was because suspects would spend nights in police custody—already a form of punishment—yet still face fines or imprisonment upon conviction.
As such, he said Zikalala had a legitimate case, and it was now up to the court to determine the outcome.
Deputy Chief Police Information and Communications Officer Assistant Superintendent Nosipho Mnguni said she could not comment on the matter, citing ongoing court proceedings.
Meanwhile, according to Section 91(1) of the Road Traffic Act 2007, a person shall not drive a vehicle on a public road or occupy the driver’s seat of a motor vehicle, whether the engine is running or not, while under the influence of intoxicating liquor or a drug having a narcotic effect.
Section 91(9) of the same Act provides that a person shall provide a breath or blood specimen, as the case may be, where reasonable suspicion exists that such person is contravening this section, and shall not be detained for longer than the time necessary to obtain the specimen.
