The Supreme Court of Appeal Pronounces Upon Arrest Without a Warrant and the Bill of Rights

Abstract

Recently, the author stated the six requirements for the lawfulness of an arrest without a warrant by a police officer as follows (see Neethling 'Arrest without a warrant and abuse of right' 2010 TSAR 821–822 and references cited there): Firstly, the person to be arrested must commit an offense or attempt to commit an offense in the presence of a police officer, or he must reasonably be suspected by a police officer of having committed an offense listed in the Criminal Procedure Act (see s 40(1)(a) and (b) of Act 51 of 1977); secondly, the purpose or object of the arrest must be to bring the arrestee before a court to be tried for the alleged offense; thirdly, the arrest must be necessary to assure the appearance in court of the person to be arrested; fourthly, the body of the person to be arrested must be actually touched unless he submits to custody, or, if the circumstances so require, he must be forcibly confined; fifthly, the police officer, at the time of effecting the arrest or immediately thereafter, must inform the arrestee of the reason(s) for his arrest; and finally, the arrestee must be taken to a police station as soon as possible. In the meantime the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA) had questioned the validity of the third requirement, namely that the arrest must be necessary to assure the appearance in court of the person to be arrested.

Keywords: arrest without warrant, bill of rights