The end of the search for a fifth jurisdictional fact on arrest on reasonable suspicion: A review of contemporary developments

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 1-22
• Citation: (2017) 30 SACJ 1
• Published date: 24 May 2019
• Author: Chucks Okpaluba

The end of the search for a fth

jurisdictional fact on arrest on

reasonable suspicion: A review of

contemporary developments

CHUKS OKPALUBA*

ABSTRACT

The Constitution al Court has had t he last word on the argument th at had

raged before the high court s in the last decade, but which wa s rejected

by the Supreme Court of Appeal h alf a decade ago in Ministe r of Safety

and Security v Sekhoto 2011 (5) SA 367 (SCA), to the effect that the Bil l of

Rights is not a ft h jurisdiction al fact to the requirement s of s 40(1)(b) o f

the Crimin al Procedure Act 51 of 1977. Rather than being an additional

jurisdictiona l fact, the Constitut ional Court has held i n MR v Minister of

Safety and Security 2016 (2) SACR 540 (CC) (MR), that a police ofcer faced

with the exercise of the dis cretion to arrest a chi ld must not only balance

the conicting i nterests, but must take into conside ration the constitution al

requirements of the be st interests of the chi ld and the limitat ion regarding

the detention of a child in s 2 8(2) and 28(1)(g) of the 1996 Constitution.

Failure on the part of the p olice to bring these constit utional protections

afforded the child to bea r on the decision to arrest or not to ar rest, renders

such a decision unlawf ul and unconstitutiona l. While the sea rch for a fth

jurisdictiona l fact may have ended at this junct ure, the Constitut ional Court

judgment in MR marks the begi nning of the infusion of s 28(2) and 28(1)(g)

of the Bill of Rights i nto the exercise of the discre tion to arrest and detai n

a child in the circ umstances of s 40 (1) of the CPA.

1 Introduction

The search for a fth jur isdictional fact in relation to the law of arr est

on reasonable suspicion1 and, by implication, a fourth juri sdictional

fact in respect of an arrest w ithout a warrant for an offence committed

* LLB LLM (Lond on), PhD (West Indies), Adjunct Professor, Nelson Mand ela School of

Law, University of Fort Hare.

1 The jurisdic tional facts t hat must be pleaded in ter ms of s 40(1)(b) of the CPA are

that: (a) the arrestor must be a pe ace ofcer; (b) he or she entert ained a suspicion;

(c) the arrestee had commit ted an offence referred to a s a Schedule 1 offence; and

(d) that the suspicion was based on r easonable grounds .

1

(2017) 30 SACJ 1

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in the presence of a peace ofcer,2 both of which were halted by

two different panels of the Supreme Court of Appea l, has nally

reached the Constitutional Cour t in the recent case of MR v Minister of

Safety and Security.3 Like the previous searches which culm inated in

Minister of Safety and Security v Sekhoto4 and National Commissioner

of Police v Coetzee,5 the current effort in M R has similarly failed at the

apex court. The Constitutiona l Court has, in the sa me vein, rejected

the proposition earlier supported by some high court judgment s that

in arresting a person under sub -paragraphs (a) 6 and ( b)7 of s 40 (1) of

the Crimina l Procedure Act (hereafter CPA), the arresting ofcer need

not page through the Bill of Right s before arresting the suspected

offender insofar as the arrest sati ses the statutory requi rements of

any of these sub-paragraphs. However, given the facts of MR and

the constitutional issues for determ ination, there may be a danger of

reading the judgment as pronouncing that the best i nterests of the

child provides an exception to the principle that the police need not

observe the rights in the Bil l of Rights as an additional requ irement

before arresting anyone under the two mentioned sub-parag raphs.

On further scr utiny of the Constitutional C ourt judgment in MR, it

becomes clearer that, taking i nto account the best interests of the child

which is a constitutional imperat ive entrenched as a right in the Bill

of Rights, a police ofcer faced with the arres t of a child must bear

that in mind in exercising the disc retion to arrest. In other words, the

best interests of the child emerges as a fac tor in the determination of

whether the arresting ofcer exercised hi s or her statutory discretion

to arrest, and if so, whether the discret ion was properly exercised in

2 The three jur isdictiona l facts in respec t of s 40(1)(a) include: (a) that the arrestor

must be a peace ofcer; ( b) an offence must have been comm itted or there must

have been an attempt to com mit an offence; and (c) in the presence a peace ofcer.

3 2016 (2) SACR 540 (CC) (MR).

4 2011 (5) SA 367 (SCA) (Sekhoto). See the discussion by C Okpaluba ‘Reasonable

suspicion and the conduct of t he police ofcer in a rrest without war rant: Are the

demands of the Bil l of Rights a fth jurisdic tional fact?’ (2014) 27 SACJ 325.

5 2013 (1) SACR 358 (SCA) at para [14] (Coetzee). The Constitutional Cour t judgment

on an application for leave to appeal agai nst the SCA judgment in Coe tzee v National

Commissioner of Poli ce 2013 (11) BCLR 1227 (CC) was in relation to an appeal

against the cost s order and did not per tain to any applicatio n of the law of arrest

or detention. Leave to appeal wa s unanimously ref used on the grou nd of lack of

jurisdict ion. The Coetzee judgment was extensively dis cussed by C Okpaluba ‘Arrest

without a warrant : When is an offence com mitted in the pr esence of an arrest ing

ofcer?’ (2015) 28 SACJ 2 57.

6 Coetzee v National Co mmissioner of Police 2011 (2) SA 227 (GNP) at paras [48]-[49].

7 See e.g. Louw v Minister of Safety and S ecurity 200 6 (2) SACR 178 (T); Gellman v

Minister of Safety and Secur ity 2008 (1) SACR 446 (W); Le Roux v Minister of Safety

and Security 2009 (2) SACR 252 (KZP); Ramphal v Minister of Safety and Securit y

2009 (1) SACR 211 (E); Mvu v Minister of Safety and Security 20 09 (2) SACR 291

(GSJ). Contra Charles v Ministe r of Safety and Security 2007 (2) SACR 137 (W).

2 SACJ . (2017) 1

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