This article will focus on the s 40(1)(b) of the Criminal Procedure Act 51 of 1977 and the requirements the peace officers must observe, follow, and adhere to for the arrest to be lawful. The definition clause of the Criminal Procedure Act defines a ‘peace officer’ as including ‘any magistrate, justice, police official … .’ It also includes any power that has been issued under s 334 (1) to peace officers in a notice. Any reference to a peace officer in this article will be a reference to a police officer.
Section 13(1) of the South African Police Service Act 68 of 1995 (Police Service Act), states that: ‘Subject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.’ It is clear from this provision that police action can only be legitimate if there are laws governing such action and that such action should be in line with the Constitution. The Police Service Act states that in exercising any function and when performing their duties, the police must pay ‘due regard’ to the rights of the person affected by such action. The preamble of the Police Service Act states that one of the functions that must be performed by police officers is to combat crime. To effectively discharge this duty, they must be equipped with the necessary powers to do so. Some of the powers include, but are not limited to are arrest, interrogation of suspects, questioning of witnesses, entering of premises to name but a few. Arresting of a suspect is one of the more drastic steps that may be taken in order to secure the attendance of the suspect at court. The ideal situation is when a police officer obtained a warrant of arrest and effected the arrest to secure the attendance of a suspect at court. Some instances do not allow a police officer to obtain a warrant of arrest. The obtaining of a warrant of arrest at that time might defeat the purpose because the suspect might evade capture or destroy valuable evidence. In such instances the law allows for an arrest of a suspect without a warrant of arrest.
Section 40(1)(b) of the Criminal Procedure Act states that: ‘A peace officer may without warrant arrest any person –
(b) whom he reasonably suspects of having committed an offence referred to in schedule 1’. The authority to effect an arrest without a warrant is granted to peace officers. The right to effect an arrest without a warrant is not unqualified. It does not authorise the arrestor to be a law unto himself when faced with a situation where the obtaining of a warrant will defeat the purpose. The court in S v Mabena and Another [2007] 2 All SA 137 (SCA) at para 2 held that: ‘The Constitution … proclaims the existence of a state that is founded on the rule of law. Under such a regime legitimate state authority exists only within the confines of the law, as it is embodied in the Constitution that created it, and the purported exercise of such authority other than in accordance with law is a nullity.’ The powers as indicated by Mabena have no force if those powers are exercised contrary to what the law envisaged. The law empowering the police to effect an arrest without a warrant must also comply with the Constitution. Considering s 13(1) of the Police Service Act, there can be no question that the power to arrest without a warrant is given to the peace officer to properly discharge their mandate. The court in Mabena, however, indicates how legislative power should be exercised. The laws governing police action also indicates the parameters and requirements within which these actions must be performed.
Section 40(1)(b) of the Criminal Procedure Act allows a police officer to arrest a suspect without a warrant when they reasonably suspect the suspect of committing a sch 1 offence. There are jurisdictional facts that must exist in order for the arrestor to effect an arrest without a warrant as indicated by Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H. The jurisdictional facts are the arrestor must be a peace officer, they must entertain a suspicion, the suspicion must be that they, the suspect, committed a sch 1 offence and that the suspicion is reasonable. The court in Duncan indicated the four elements that must be present for the arrest to comply with the lawful requirements for the police officer to effect the arrest. The first three elements are easy to ascertain, but the fourth element is the one that requires an in-depth look for a police officer to be clothed with the necessary authority to effect the arrest.
In Manala v Minister of Police and Others (GP) (unreported case no 13342, 12-8-2020) (Sardiwalla J) at para 22, the court held that: ‘The arrestor’s grounds must be reasonable from an objective point of view. When the peace officer has an initial suspicion, steps have to be taken to have it confirmed in order to make it a “reasonable” suspicion before the arrest is made.’ The court in Manala refers to steps that must be taken. What steps is the court referring to? To answer this, we must look at Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) at 836I – 837B where it was held that ‘there must be an investigation into the essentials relevant to the particular offence before it can be said that there is a reasonable suspicion that it has been committed.’ There are ‘steps’ that need to be taken and an investigation into ‘essentials’ but that does not indicate what both aspects mean. The court in Manala also refers to the need ‘to have it confirmed’. The ‘it’ the court refers to, is the reasonable suspicion, which must be confirmed. The reasonable suspicion must be present in order to conclude that a sch 1 offence has been committed. The court in Manala clarifies it, by indicating that the steps that must be taken are the investigation into the essentials, meaning the merits of what the police officer is confronted with at that time. For the arrestor to confirm their suspicion, they need to validate their suspicion by investigating their suspicion in order to conclude that their suspicion has merit based on the available information.
The ‘steps’ that must be taken are that the officer must take the available information and test it against the circumstances that confronts him at the time of the incident. The possible witnesses, the evidence, the rebuttal explanation of the suspect against the evidence at their disposal. The suspect at the time might give a reasonable explanation as to their whereabouts at the time of the commission of the offence. The ‘steps’ that needed to be taken also imply that the police officer must do a follow up on the possible alibi provide by the suspect. The possible witness that was indicated by the suspect that could corroborate the version of the suspect as to the suspects involvement in the commission of the offence. The circumstances of each case will be unique but the starting point for a police officer will be that they need to confirm the suspicion they have. The suspicion must be tested by doing an investigation into the available facts at their disposal. The Manala case also refers to ‘before the arrest is made’. This is very important because that indicates that the ‘steps’ that the policer must take must precede the arrest. The investigation into the available facts must be made before the arrest is effected. The suspicion will only be regarded as reasonable once the police officer has confirmed the suspicion. If the available information stands untested the arrest will be inconsistent with the law. The Supreme Court of Appeal in Minister of Safety and Security and Another v Swart 2012 (2) SACR 226 (SCA) at para 20 held that: ‘The question is whether any reasonable person, confronted with the same set of facts’, would draw the same conclusion. The requirement that the police officer acted reasonably will not suffice if their action does not objectively conform to that of a reasonable person. The reasonable person test is to ensure that the actions of the police officer would equate to the actions of a police official that was in his or her position. If it can be said that the police officer’s actions align with that of an officer in their position armed with the same information and that another police officer would have acted the same while being armed with the same information, it could be said that the police officer acted reasonably.
In Minister of Safety and Security and Another v Zulu (KZP) (unreported case no AR238/08, 14-5-2010) (Steyn J), a police informer reported to the police that the respondent, Mr Zulu, and two others were seen in possession of suspected stolen property. The police office went to the house of the respondent later in the evening in order to follow up on the information he received. The respondent took the police to another person’s house where certain items that were suspected of being stolen, were found. The police arrested the respondent on a charge of housebreaking with the intent to steal and theft. The police officer in this case did not find the respondent in possession of the suspected stolen goods when he visited the respondent’s house. He did not request the respondent to search his residence when he was at the respondent’s home. The High Court in dismissing the application brought by the Minister of Safety and Security concluded that: ‘It is clear that Lambrechts [the police officer] relied on a suspicion made by someone else, [and] he failed to verify and test the suspicion’. The ‘verification’ the court refers to, is the investigation the police had to do in order to verify if the suspicion that the police had was reasonable. After the investigation the police would have been able to determine on the available facts if the respondent has committed a sch 1 offence. The arresting officer must form a suspicion based on evidence that can objectively sustained as indicated by the court in Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T). For the arresting officer to gather evidence, they must do an investigation of the facts at their disposal. The facts will indicate to the police officer if the suspicion they have is reasonable and if the suspicion is reasonable in order for it to comply with the law before they decide to arrest the suspect or not.
For the suspicion to be regarded as reasonable in terms of s 40(1)(b), it must be tested. The investigation is a requirement in order for the police officer to comply with s 13(1) of the Police Service Act in general and s 40(1)(b) of the Criminal Procedure Act in particular. The police officer need only have a suspicion that a sch 1 offence has been committed. In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE), it was held the test is not certainty of the commission of an offence, but the suspicion that a suspect committed a sch 1 offence.
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.
This article was first published in De Rebus in 2023 (Oct) DR 22.
