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By Mzoxolo Terrance Magadla
The essential premise of law enforcement is that police officers (peace officers) must carry out their duties in accordance with the law. This article attempts to address the concept of unlawful arrest and detention and detail the procedures that ought to be followed by peace officers during the arrest of an accused as guided by applicable legal frameworks and case law. This article serves as an explanatory note and will only deal with arrests that have been effected without a warrant in terms of s 40 of the Criminal Procedure Act 51 of 1977 (CPA).
Unlawful arrest and detention happens when a person is arrested arbitrarily or without just cause. It is a kind of arrest and detention that is contrary to the spirit of the Constitution, particularly its s 12. Section 12(1) states that ‘everyone has the right to freedom and security of the person, which includes the right –
(a) not to be deprived of freedom arbitrarily or without just cause.’
When such a violation occurs, the arrestee can bring legal action for unlawful arrest and detention against the Minister of Police.
Once the arrestee alleges that they have been unlawfully arrested by a peace officer and that their constitutional right (s 12) has been violated without just cause, they would then bear the onus to prove the allegation(s) on a balance of probabilities (see Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) at para 7). They must prove that the Minister of Police caused the damage(s) they have suffered. The arrestee would have the duty to begin. If, however, the Minister of Police has entered a plea and admits the arrest and detention, and further alleges that the arrest was lawful, and justified in terms of the law, the Minister of Police would then bear the onus of proof and would have the duty to begin (see Sekhoto at para 7). Who has the duty to begin will also be determined by what the arrestee is claiming, if for example, there is a claim for assault or malicious prosecution, then the arrestee would have the duty to begin, even in circumstances where the Minister of Police has admitted the arrest and detention.
Section 40 of the CPA allows a police officer to arrest any person without a warrant. This section prescribes the grounds on which such persons can be arrested. These grounds are listed in s 40(1)(a) – (q) and include grounds such as arresting a person who commits or attempts to commit an offence in the presence of a police officer (s 40(1)(a)) or arresting a person who is reasonably suspected of having committed an offence referred to in sch 1 of the CPA, other than escaping from lawful custody (s 40(1)(b)). Other subsections of s 40 provide further grounds, which all deal with specific offences. These provisions effectively give effect to s 205(3) of the Constitution which provides that ‘police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.’
In addition to the provisions of s 40(1), s 40(2) of the CPA further broadens the scope of the grounds. The same principles discussed in s 40(1)(a) – (q) in justifying the arrest would also be used under s 40(2). The only difference is that the suspicion must be that the suspect committed an offence in terms of that applicable law. A proper interpretation of this section is that a police officer has the power to effect an arrest if an offence has been committed in terms of any legislation or common law.
In Groves NO v Minister of Police and Another 2024 (1) SACR 286 (CC); 2024 (4) BCLR 503 (CC) at para 52 the Constitutional Court highlighted that in warrantless arrests, a police officer must collate the facts and use discretion in light of the jurisdictional requirements outlined in s 40(1). The court additionally stated that before continuing with such an arrest, the officer must be satisfied that the prerequisites are met. Another important factor is that the police officer must be able to justify his use of discretion in those circumstances.
As already mentioned, for an arrest to be lawful, it must be justified in terms of the law. Four jurisdictional facts must be proved by the defendant in justifying the lawfulness of the arrest. These jurisdictional factors were established in Duncan v Minister of Law and Order 1986 (2) SA 805 (A), notably in s 40(1)(b) arrests, and are as follows –
These factors are straightforward, but worth mentioning is that, with the last jurisdictional fact, an objective test is used to determine the reasonableness of the suspicion (see Lifa v Minister of Police and Others [2023] 1 All SA 132 (GJ) at para 34). What matters is what was in front of the peace officer at the time of the arrest; what happened subsequently or during the investigation is irrelevant.
The test for reasonable suspicion was set out in the matter of Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658E-H. The test is succinctly summarised as follows:
The question should be whether a reasonable man in the police officer’s position and who possessed the same information would have considered that there were good and sufficient grounds for suspecting that the plaintiff was guilty? The reasonable man will analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it, where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion that will justify an arrest. The information need not be of high quality and cogency to engender in him a conviction that the suspect is guilty. As such, suspicion is required, not certainty.
As per the judgment of Sekhoto and others, once the jurisdictional facts are present, the police officers would then have to exercise their discretion on whether or not to effect an arrest. This indicates that the presence of jurisdictional facts does not oblige the peace officer to make an arrest. The authority to arrest can be used only once the peace officer has applied his mind. When a peace officer applies his mind, he must consider the lawfulness of his actions and whether he is using his power in accordance with applicable laws or legislation. The exercise of this power should be lawful, the standard used to measure lawfulness in this regard is the test of rationality. The goal of an arrest is to bring the arrested person before a court of law. If the arrest is made for a purpose other than what the law intended, the exercise of that power can be regarded as unlawful or irrational.
The peace officer’s use of discretion also includes considering all measures open to him in obtaining the suspect’s appearance in court and deciding which approach would be suitable to achieve this (see Diljan v Minister of Police (SCA) (unreported case no 746/2021, 24-6-2022) (Makaula AJA) at para 7). The test in this regard is that the peace officer should know that effecting an arrest is not the only option available to him. He must consider all three methods available to him which are; summons, warning, and an arrest. After having considered all the available methods, the police officer would then choose which would be the appropriate method to use in the present circumstances. The onus to prove that discretion was properly exercised is on the arrestor (peace officer) (see Sekhoto at para 45). In Diljan at para 9, the court added a further discretion, the discretion to detain or not detain. This additional discretion is only applicable when dealing with detention.
After the arrest, the suspect is detained. The break between the arrest and detention happens immediately after the peace officer has exercised his discretion to effect the arrest (see Diljan at para 11). After the decision to arrest has been made and the arrest has been effected,
s 50 of CPA immediately kicks in. Section 50 states that the peace officer must inform the suspect of their right to institute bail proceedings, and if not charged or if bail is not granted in terms of s 59 or s 59A of CPA, the suspect should be brought before a court of law as soon as reasonably possible but not later than 48 hours after the arrest.
The point of contention when dealing with unlawful arrest and detention is that of s 59 of CPA. Section 59 states that if a suspect is arrested for an offence other than an offence in part 2 and 3 of sch 2, they may, before their first appearance in a lower court, be released on bail. The word ‘may’ in this regard is very important as it means that the peace officer has to exercise further discretion. Part of that discretion as mentioned in para 9 of Diljan, is to release the suspect on a warning. The peace officer, therefore, has to exercise his or her powers as per the CPA either to release the suspect on bail or on a warning or to keep the suspect in detention until their first court appearance. The peace officer is, therefore, not obligated to release the suspect, however, they are given the power or discretion to do so. This power should be exercised lawfully within the bounds of rationality.
When dealing with quantum in unlawful arrest and detention, three aspects are important to highlight. These are factors, previous court decisions, and the purpose of compensation. Factors are considered on a case-by-case basis. This means that when a court assesses damages it should take into account only those factors that are relevant to that particular case. Factors, for example, would include the personal circumstances of the plaintiff, the manner of the arrest, the duration of the detention, the public purse and the degree of humiliation (see Minister of Safety and Security v Seymour [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA) at para 20 and Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA); 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA) at para 27). The duration of the detention is only a factor that should be considered together with all other relevant factors. Previous court decisions only serve as a guide; the facts of each case would ultimately determine the amount to be awarded. The primary purpose in assessing damages in unlawful arrest and detention is not to enrich the aggrieved party but to offer him the much-needed solace for their injured feelings (see Tyulu at para 26). The award should be commensurate with the injury inflicted (see Tyulu at para 26).
This article sought to explain the basic principles applicable in unlawful arrest and detention matters. The paper provided an overview of how these principles are applied and most importantly the application of s 40 of the CPA when justifying an arrest. What is clear is that an arrest and detention of an alleged accused can be declared unlawful if the arrest was conducted in a manner that violated the rights of the arrestee.
Mzoxolo Terrance Magadla BA LLB LLM (Wits) is a non-practising legal practitioner in Johannesburg.
This article was first published in De Rebus in 2024 (December) DR 28.
