Arrest without a warrant: When is an offence committed in the presence of an arresting officer?

• Jurisdiction: South Africa
• Pages: 257-283
• Author: Chuks Okpaluba
• Date: 24 May 2019
• Published date: 24 May 2019

Arrest without a warrant: When is an

offence committed in the presence

of an arresting ofcer?

CHUKS OKPALUBA *

ABSTRACT

The circumst ances in which a police ofcer m ay, without warrant, arrest

any person who commits or about to com mit an offence in his or her

presence in terms of s 40 (1)(a) of the Criminal Procedu re Act 51 of 1977 is

by no means easy to determ ine. Does an offence committed in the presence

of a police, or arresting of cer, contemplate that incident which the ofcer

witnessed or does it include ar rest based on inform ation brought to his

or her attention by someone else? Assu ming that the ofcer was pre sent

in the vicinit y of the event but did not witness the act ual commission of

the offence, to what extent can he, in ef fecting an arrest u nder s 40(1)(a),

rely on information from anot her ofcer or a third pa rty who saw what

happened? Would that meet the require ment of an offence committed i n

the presence of a peace ofcer? In othe r words, can the arres ting ofcer see

through the lense of hi s colleague or that of a thi rd party?

1 Introduction

In terms of s 40(1)(a) of the Crimin al Procedure Act 51 of 1977 (CPA), a

police ofcer may arrest a person without a warr ant if that person has

committed or attempted to commit an of fence in his or her presence.1

The question with which the court s have had to grapple in the recent

past is: when is an offence committed in the presence of a police

ofcer for the purposes of an arrest u nder s 40(1)(a) of the CPA? Does

‘in the presence of the peace ofcer’ contemplate only the incident

which the ofcer saw or that which he or she had knowledge of?

Does it include information brought to his attention by someone else?

Assuming that the of cer was present in the vicinity of the event but

did not witness the actual comm ission of the offence, can he or she,

in effecting an arrest u nder s 40(1)(a), rely on the information from

*LLB LLM (Lond on), PhD (West Indies): Visiting Professo r, College of Law, University

of South Afric a.

1 Section 40(1)(b) o f CPA empowers the peace ofcer to ar rest without warr ant if

he or she reasonably suspec ts that a Schedule 1 of fence has been or is about to be

committed. T his aspect of a rrest without war rant was discu ssed by C Okpaluba

‘Reasonable suspicion and conduc t of the police ofcer i n arrest without wa rrant:

Are the demand s of the Bill of Rights a fth ju risdictional fact?’ (2014) 27 SACJ 325.

257

(2015) 28 SACJ 257

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another ofcer or a third par ty who saw what happened? Would such

a circumstance meet the requi rement of an offence committed in the

presence of a peace ofcer? In other words, can the arresti ng ofcer

see through the lens of his colleag ue or that of a third part y?

Incidentally, the common thread runn ing through the recent cases

starting with Ministe r of Safety and Security v Glisson;2 through to the

Supreme Court of Appeal (SCA) decisions in Minister of Safety and

Security v Tyul u3 and Minister of Safety and Security v Slabbert;4 down

to the high court judgments in Ministe r of Safety and Security v Du

Plessis,5 and De Koker v Minister of Safety and Security;6 and the more

recently reported c ase of Scheepers v Minister of Safety and Se curity,7

is that they all involve arrest for an offence of drun kenness in a public

street, drunk d riving or drun k and disorderly behaviour. There is

however one exception, Minister of Safety and Security v Mhlana,8

which throws light on what s 40(1)(a) of the Act requires of an arresting

ofcer, and which links the qualit y of what the ofcer observed or

knew of the offence committed or attempted to be comm itted in his

or her presence. However, before proceeding to discuss these ca ses, it

is important to refer to the common trend th at has developed around

the judicial interpretation of s 40 (1)(a) and s 40(1)(b) in relat ion to the

boundaries of the juris dictional facts and the mandates of t he Bill of

Rights .

2 Keeping within the boundaries of the jurisdictional facts

There are three broad propositions which must be b orne in mind

with regard to the SCA’s interpretation and application of the

two subparagraphs of s 40(1) of the CPA. First, just as Harms DP

emphasised, in Minister of Safety and Security v Sekhoto,9 the effect

2 2007 (3) SA 78 (E) (Glis son (1)).

3 2009 (5) SA 85 (SCA) (Tyu lu). See also t he discussion by L Curlew is ‘Drunken

driving on appeal’ (20 09) November De Rebus 3 7.

4 [2010] 2 All SA 474 (SCA) (Slabbert).

5 2010 (1) SACR 49 (ECG) (Du Plessis).

6 2010 (2) SACR 595 (KZD) (De Koker).

7 2015 (1) SACR 284 (ECG) (Scheepers).

8 2011 (1) SACR 63 (WCC) (Mhlana).

9 2011 (5) SA 367 (SCA) at para [25] (Sekhoto) where it was held that an arrest made

in accordance with t he dictates of s 40 (1)(b) of CPA cannot amount to an a rbitrary

deprivation of the lib erty of the i ndividual or one effect ed without just cause or i n

conict with t he Bill of Rights.

258 SACJ . (2015) 3

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