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 comm itted 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4 0(1)(b), arrest anyone without a warrant if he or she

reasonably suspects that the person h as committed an offence

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

whether an offence has been committed or about to be comm itted

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

reasonable suspicion that an offence has been committed i s even

more intractable to determine. Yet, similar elusive terms ex ist in

criminal ju stice statutes of other Commonwealth countries.4 Fu rt her,

notwithstandi ng the problem of accurately pinpointing the elements

of reasonable suspicion, the law-maker has unrelentingly deployed

this same problematic expression in the legislative schemes deali ng

not only with arrests and detentions, but al so 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 a rising under this s ub-paragraph 40 (1)(a) see: Minister of Safety and

Security v Gliss on 2007 (1) SACR 131 (E); Minister of Safety and Se curity v Ty ulu

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

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

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

4 See eg s 24 (6), Police and Criminal Evidence Ac t 1984 (UK) (‘reasonable grounds’);

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

Crimina l Code 1985 (‘reasonable grounds’); s 315, New Zealand Crime Ac t 1961

(‘good cause to suspect’).

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(2014) 27 SACJ 325

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

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

This article di scusses the meaning the court s have assigned to the

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

in ascertain ing the reasonableness of the arrest and detention; the

information upon which the arrest ing off‌icer based his or her

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

jurisdictional fact s 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 addit ional jurisdictional fact

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

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

arresting off‌icer has sati sf‌ied the four jurisdictional facts laid down in

the subparagraph of the subsection, the over-intr usiveness of the Bill

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

Once the suspect has been brought to court wit hin the constitutional

or statutory scheme, the lawfu lness of any further detention or the

fairness of the process is left to the jud icial system.

2 Some settled principles relating to arrests and detentions

A warrant of arrest by a magi strate is a complete defence to a claim

for wrongful arrest and, in t he ordinary course of events, would

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

interference with physical liberty i ncluding an arrest is pr ima faci e

wrongful and unlawf ul. If the arrest is patently un lawful, in that it

was unnecessary to ar rest the plaintiff in order to secure h is or her

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

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

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

an otherwise legal ar rest 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 Sec tions 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 Johannesburg 2009 (2) SA 101 (W) at 106G-H; Ministe r van

Polisie v Goldschagg 1981 (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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