Recent Case: Criminal Procedure

• Citation: (2023) 36 SACJ 138
• DOI: https://doi.org/10.47348/SACJ/v36/i1a7
• Published date: 31 July 2023
• Pages: 138-152
• Author: Reddi, M.
• Date: 31 July 2023

Criminal Procedure

MANAGAY REDDI

University of KwaZulu-Natal, Durban

1 Arrest without a warrant

Section 40(1)(b)of the Criminal Procedure Act 51 of 1977 (hereafter

the CPA) authorises police ofcers to arrest any person without a

warrant ifthey reasonably suspect that individual of having committed

a Schedule 1 offence other than escaping from lawfu l custody. Duncan

v Minister of Law and Order (1986 (2) SA 805 (A); [1986] ZASCA 24 at

818G – H) established that the arresting ofcer would have to prove

the following jurisdictional facts, among others, to demonstrate the

lawfulness of the arrest: (i) they entertained a suspicion; and (ii) the

suspicion rested on reasonable grounds. Should an issue be raised about

the arresting ofcer’s use of discretion in effecting the arrest under

s 4 0(1) (b), the onus shifts to the arrestee to establish that the police

ofcer had acted with an improper purpose (ibid at 819A). Duncan

also serves as the authority on the meaning of the word suspicion,

the court having concluded that it refers to an absence of certainty or

adequate proof. In Dlaza v Minister of Police (unreported, WCC case

no 4697/2016, (30 November 2018) at para [22]), this interpretation was

understood to imply that suspicion could be reasonable regardless of

whether sufcient evidence exists for a prima facie case against the

arrestee.

Several cases have taken the matter a step further by maintaining

that an arresting police ofcer is authorised to avail themself of

any information at hand, even if hearsay in nature. For instance, in

Pule v Minister of Police (unreported, GP case no 17527/2013, [2017]

ZAGPPHC 160 (10 February 2017) at para [20]), the court stated that

s 40(1)(b)does not require certainty, only a reasonable suspicion.

Likewise, in Gombakomba v Minister of Police (unreported, GP ca se no

6663/2012, [2014] ZAGPPHC 822 (16 October 2016)) and TKS v Minister

of Police (unreported, GP case no 75903/2013, [2017] ZAGPPHC 585

(12 September 2017)). In the latter case, the court indicated that an

arresting ofcer does not have to be convinced that the evidence

establishes the guilt of the arrestee beyond a reasonable doubt (at

para [22]).

In Biyela v Minister of Police (2023 (1) SACR 235 (SCA)), which

concerned a claim for damages arising from an unlawful arrest and

detention allegation, the two issues for determination on appeal to the

Supreme Court of Appeal were: (i) whether the arresting ofcers could

138 SACJ.(2023) 1

https://doi.org/10.47348/SACJ/v36/i1a7

(2023) 36 SACJ 138

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