Reasonable suspicion and conduct of the police officer in arrest without warrant: Are the demands of the Bill of Rights a fifth jurisdictional fact?

• Jurisdiction: South Africa
• Pages: 325-345
• Author: Chuks Okpaluba
• Published date: 16 August 2019
• Citation: (2014) 27 SACJ 325
• Date: 16 August 2019

Reasonable suspicion and conduct

of the police ofcer in arrest

without warrant: Are the demands

of the Bill of Rights a fth

jurisdictional fact?

CHUKS OKPALUBA*

1 Introduction

Quite apart from the power to arrest a person who committed or

attempted to commit an offence in the presence of a police off‌icer

under s40(1)(a) of the Criminal Procedure Act 1977,1 the off‌icer

can, under s40(1)(b), arrest anyone without a warrant if he or she

reasonably suspects that the person has committed an offence

specif‌ied in Schedule 1 of the Act.2 As much as the determination of

whether an offence has been committed or about to be committed

in the presence of an off‌icer is diff‌icult to prove,3 what is a

reasonable suspicion that an offence has been committed is even

more intractable to determine. Yet, similar elusive terms exist in

criminal justice statutes of other Commonwealth countries.4 Further,

notwithstanding the problem of accurately pinpointing the elements

of reasonable suspicion, the law-maker has unrelentingly deployed

this same problematic expression in the legislative schemes dealing

not only with arrests and detentions, but also use of force to effect

* LLB LLM (Lond on), PhD (West Indies), Visiting Professor o f Law, University of South

Africa.

1 Act 51 of 1977 (CPA).

2 S v Shirin da 1986 (1) SA 573 (T).

3 For cases arising under this sub-paragraph 40(1)(a) see: Minister of Safety and

Security v Glisson2007 (1) SACR 131 (E); Minister of Safety and Securityv Tyulu

2009 (5) SA 85 (SCA); Minister of S afety and Security v Slabbert [2010] 2 All SA 474

(SCA) ; Minister of Safety and Se curityv Du Plessis 2010 (1) SACR 49 (ECG); De Koker

vMinister of Safety and Secu rity 2010 (2) SACR 595 (KZD).

4 See eg s 24(6), Police and Criminal Evidence Act 1984 (UK) (‘reasonable grounds’);

s 352, The Crimes Act 1900 -24 (Australia) (‘reasonable cause’); s 495(1)(a), Canadian

Criminal Code 1985 (‘reasonable grounds’); s 315, New Zealand Crime Act 1961

(‘good cause to suspect’).

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(2014) 27 SACJ 325

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arrest,5 entry into private property in order to arrest or search and

seize property,6 as well as the law of malicious prosecution.7

This article discusses the meaning the courts have assigned to the

term ‘reasonable suspicion’ in s40(1)(b) of the CPA; the test applied

in ascertaining the reasonableness of the arrest and detention; the

information upon which the arresting off‌icer based his or her

suspicion; and more importantly, the link, if any, between the statutor y

jurisdictional facts and the dictates of the Bill of Rights. A lthough there

is no Constitutional Cour t decision in respect of the latter, the Supreme

Court of Appeal has held that there is no additional jurisdictional fact

prompted by the Bill of Rights which must be satisf‌ied for an arrest

to be lawful in the circumstances of s40(1)(b) of the CPA. Once the

arresting off‌icer has satisf‌ied the four jurisdictional facts laid down in

the subparagraph of the subsection, the over-intrusiveness of the Bill

of Rights is of no moment and the arrest must be upheld as lawful.

Once the suspect has been brought to court within the constitutional

or statutory scheme, the lawfulness of any further detention or the

fairness of the process is left to the judicial system.

2 Some settled principles relating to arrests and detentions

A warrant of arrest by a magistrate is a complete defence to a claim

for wrongful arrest and, in the ordinary course of events, would

render the ensuing detention lawful.8 Otherwise, the law is that any

interference with physical liberty including an arrest is prima facie

wrongful and unlawful. If the arrest is patently unlawful, in that it

was unnecessary to arrest the plaintiff in order to secure his or her

attendance in court, the fact that the arrest was on a warrant would

not necessarily make it lawful. For just as the best motive will not

cure an otherwise illegal arrest, so the worst motive will not render

an otherwise legal arrest illegal. Incidentally, the pre-Bill of Rights

5 See eg s 49(2), CPA. On which see Minist er of Safety and Security Ex Parte; In Re S

v Walters 2002 (4) SA 613 (CC).

6 Sections 20(b) and (c), 21 and 22, CPA; Tinto v Minister of Police 2014 (1) SACR 267

(ECG) paras [58], [68]- [69] and [72].

7 See C Okpa luba ‘Reasonable and probable cause in the l aw of malicious prosecution:

A review of South Af rican and Commonwealth decisions’ (2013) 16(1) Potch ER 241.

8 Van Rensbur g v City of Johannesburg2009 (2) SA 101 (W) at 106G-H; Ministe r van

Polisie v Goldschagg1981 (1) SA 37 (A) at 56B-D; Prinsloo v Newman 1975 (1) SA

481 (A) at 500A and 507G-H; Div isional Commissioner of the South Afr ican Police,

Witwatersrand Ar ea v South African Associated N ewspapers Ltd 1966 (2) SA 503 (A)

at 511G -512B.

326 SACJ.(2014) 3

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