Arrests without warrant: the SCA brings clarity - Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA);  2 All SA 157 (SCA): case
Du Toit, Pieter Gerhardus
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Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified (Minister of Law and Order v Hurley 1986 3 SA 568 (A) 589E-F; and Ralekwa v Minister of Safety and Security 2004 1 SACR 131 (T) par ). The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds (Duncan v Minister of Law and Order 1986 2 SA 805 818G-H). For a discussion of the different types of jurisdictional facts provided for in section 40(1) see Watney ("'n Klemverskuiwing by Inhegtenisneming Sonder Lasbrief" 2009 TSAR 734-735).
- Faculty of Law@PUK