Unlocking the issue: When to arrest without a warrant when a dangerous wound is inflicted

November 1st, 2019
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In practice, a police officer may arrest a suspect with or without a warrant. In the latter instance only when there are prescribed jurisdictional factors, prior to effecting an arrest. In this article, the analysis predominantly focuses against the backdrop where a police officer effects an arrest – without a warrant – on reasonable suspicion that a dangerous wound has been inflicted. This analysis seeks to lay out the dynamics and circumstances, which needs to be considered to determine whether such an offence, namely assault where a dangerous wound is inflicted, falls under sch 1 of the Criminal Procedure Act 51 of 1977 (the CPA).

Arrest without a warrant

Section 40(1)(a) and (b) of the CPA provides that: ‘A peace officer may without warrant arrest any person –

(a) who commits or attempts to commit any offence in his presence;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.’

The focus of this article will fall on s 40(1)(b). The latter provides that the offence of assault where a dangerous wound is inflicted, is an offence for which a police officer may arrest the suspect without a warrant if there is a reasonable suspicion for commission of the said offence.

Reasonable suspicion

According to www.lexico.com (accessed 7-10-2019), ‘suspicion’ is defined as ‘a feeling or belief that someone is guilty of an illegal, dishonest, or unpleasant action’.

In the matter Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) it is  stated at para 6 that the following facts needs to be present for a s 40(1)(b) defence, to apply –

  • the arrester must be a peace officer;
  • the arrester must entertain a suspicion;
  • the suspicion must be that the suspect committed an offence referred to in sch 1; and
  • the suspicion must rest on reasonable grounds.

Let me hasten to say to rely on the suspicion of someone else would render the arrest unlawful (see Ralekwa v Minister of Safety and Security 2004 (2) SA 342 (T) at para 11 – 14). In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658 E – J, Jones J held: ‘The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective … . Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? … This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. This section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it [would] be flighty or arbitrary, and not a reasonable suspicion.’ Accordingly, an officer does not have to be convinced that there is in fact evidence proving the guilt of the suspect beyond reasonable doubt. The quality of the information on which the arrestor acts must be analysed and assessed. Acting on information, where the quality of which has not been subjected to scrutiny, will render an arrest unlawful (see Mawu and Another v Minister of Police 2015 (2) SACR 14 (WCC) at para 31).

Assault where a dangerous wound is inflicted

In our legal system, the offence of assault emanates from common law. Furthermore, assault comprises of –

  • common assault; and
  • assault with intent to cause grievous bodily harm (assault GBH).

In addition, to assault GBH, there is assault where a dangerous wound is inflicted, both of which are distinct concepts. In South African jurisprudence, there is no specific crime known as assault where a dangerous wound is inflicted. In the matter of Rex v Jones 1952 (1) SA 327 (E) the court held that assault GBH is not a sch 1 offence unless a dangerous wound is inflicted. At para 332 D – F Jennett J in the Jones case had the following to say about a ‘dangerous wound’ as referred to in the ‘first schedule’ to the Act 31 of 1917: ‘The expression “dangerous wound” is not easy to define. One may well ask, “Is a serious wound always a dangerous wound?” A minor wound may be dangerous because of the extra possibility it creates for septic infection. Then, however it is not the wound which causes the danger but the sepsis. It seems to me that by a dangerous wound is meant one which itself is likely to endanger life or the use of limb or organ. The officer effecting the arrest has only to have reasonable grounds for suspecting that such a wound has been inflicted’.

The authority in the Jones case has been followed and endorsed in a number of other leading cases on the subject, such as in the Goliath v Minister of Police (ECG) (unreported case no CA107/2017, 14-11-2017) (Bloem J) decision and in the case of De Klerk v Minister of Police [2018] 2 All SA 597 (SCA) at para 10. Likewise, a person who commits assault GBH does not necessarily attempt to commit an assault in which a dangerous wound is inflicted and such arrest stands to be unlawful (see SE van der Merwe (ed) Commentary on the Criminal Procedure Act (Cape Town: Juta 1987) at 5 – 14B). In Minister of Police v Lewies [2015] JOL 32807 (ECG) an appeal against the judgment of the lower court, which awarded damages to the plaintiff for wrongful arrest and detention. In addition to the denial of unlawful arrest and detention by the appellant, the latter relied on s 40(1)(b) of the CPA by adducing evidence to the effect that the arresting officer reasonably suspected that the respondent had committed an offence referred to in sch 1 of the CPA, namely, the assault where a dangerous wound was inflicted. Furthermore, the arresting officer received the docket on 14 August 2012 relating to the commission of offence of assault GBH, which was allegedly committed on 11 August 2012. The interview with the complainant was conducted on 15 August 2012 (four days after the incident) and the arresting officer was given a J88 form with the following clinical finding ‘Wound on the scalp – no fracture seen – Wound on the left chest at the back. No lung injury seen on x-ray. Patient was observed overnight and discharged the following day’. The court held at para 15 as follows: ‘Although loss of consciousness was mentioned in [the complainant’s] affidavit, by the time [the arresting officer] interviewed him nearly four days had passed since he was injured and he had been discharged from hospital the morning after the injuries were inflicted. The scalp wound which [the arresting officer] observed and [the complainant’s] complaint of pain would not in themselves appear to be symptoms of life-threatening injuries. Most importantly, even if [the arresting officer] thought that head injuries are inherently dangerous, she was aware of the conclusion in the J88 form that the wounds were superficial. It was not for her to go beyond the doctor’s expert conclusion and speculate that something more serious might develop in the future’. The appeal court dismissed that appeal and concluded that the court a quo correctly inferred that the arresting officer reasonably suspected that the respondent had inflicted the complainant’s injuries and that the arresting officer did not have grounds to believe that the wounds were dangerous.

Conclusion

It is prudent for the arresting officers to be vigilant where the arrest without a warrant encapsulates assault. Although in terms of our common law, assault that is legally recognised comprises of common assault and assaults GBH; the assault that is covered by the statute (sch 1 of the CPA) is assault where a dangerous wound is inflicted. The arresting officer – when effecting an arrest under the circumstance – must formulate reasonable suspicion that an assault where a dangerous wound was inflicted was committed by the suspect. The court must look at the circumstances of each case beyond the J88 form, which will state the nature and degree of injuries, the period of arrest and the date of infliction of the injury and the expert evidence to determine if the arresting officer’s suspicion was justified. A dangerous wound is one, which itself, is likely to endanger a life or the loss of a limb or organ.

Nicholas Mgedeza BProc (Unisa) Cert in Conveyancing (Intec College) is a legal practitioner at the Office of the State Attorney in Pretoria.

 This article was first published in De Rebus in 2019 (Nov) DR 17.