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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2024- 100331
In the matter between:
MINISTER OF POLICE Appellant
and
RAY ELASTAIR STEVENS Respondent
JUDGMENT
DU PLESSIS J (with whom MEADEN AJ agrees )
Introduction
[1] This is an appeal against the judgment of the Magistrate' s Court, Randfontein,
which found in favour of the respondent (plaintiff in the court a quo) and declared
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
4 April 2025 _ ________
DATE SIGNATURE
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his arrest and detention on 30 December 2019 unlawful. The appellant is the
Minister of Police. Although the appeal was filed outside the prescribed period,
the Court condones the late filing. The matter was fully argued on the merits,
and the respondent was not prejudiced.
[2] The respondent instituted a delictual claim for damages based on his alleged
unlawful arrest and detention. The appellant contends that the arrest and detention were lawful in terms of section 40(1)(h) of the Criminal Procedure Act
1("CPA") for alleged possession of suspected drugs.
[3] The material facts are largely common cause. The respondent was arrested
shortly after midnight on 30 December 2019 and detained at the Randfontein
Police Station. He was charged on 31 December and brought before the court
on 2 January 2020, where he was released on bail.
[4] The arresting officer, Constable Morakile, testified that he suspected the
respondent of possessing drugs after finding a Ziplock packet containing a
glassy, powdery substance in the respondent 's jacket. He further testified that he
was c onfident the substance was a drug based on prior experience.
[5] The arresting officer testified that the possession of drugs, the fact that the
appellant tried to flee, and the fact that they acted on a tip- off meant that South
African Police Services could arrest the appellant without a warrant in terms of
section 40(1) of the CPA .
[6] The court a quo found that , after the arrest, it was established that the plaintiff
had a fixed address, no outstanding warrants , and was working at the community
church. All these factors mean that the police could have released the plaintiff on
warning to appear in court instead of taking the drastic step to arrest him. The
arrest was thus unjustified.
[7] I agree with the order of the court a quo, although, on appeal, the respondent
raised a specific point regardin g the exercise of discretion .
1 Act 51 of 1977.
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The law
[8] Section 40(1) of the CPA states that for a warrantless arrest to be lawful, the
following jurisdictional requirements must be met:
a. The arrestor must be a peace officer;
b. The arrestor must entertain a suspicion that the suspect committed an
offen ce under Schedule 1 of the CPA;
c. The suspicion must be based on reasonable grounds , and
d. The officer must exercise discretion whether to arrest.
[9] Once these jurisdictional facts are established, an arrest may be made, but it is not obligatory. In Minister of Safety and Security v Sekhoto
2 the principle was
explained by Harms DP in the following terms:
“Once the jurisdictional facts for an arrest, whether in terms of any
paragraph of s 40(1) or in terms of s 43 are present, a discretion arises . . .
In other words, once the required jurisdictional facts are present the
discretion whether or not to arrest arises. The officer, it should be
emphasised, is not obliged to effect an arrest. ”
[10] The jurisdictional facts must be assessed within the prism of the c onstitutional
right not to be arbitrarily deprived of freedom and security of person.3
[11] In Minister of Safety and Security v Van Niekerk ,4 the Constitutional Court
emphasised that an arrest should be a measure of last resort and that a peace
officer must consider less drastic means to secure the attendance of an accused
in court.
[12] In Raduvha v Minister of Safety and Security ,5 the Constitutional Court explained
that the requirements in section 40(1) confer a discretion, not a duty. In other words, even if all the requirements in the section are met, the arresting officer
2 [2010] ZASCA 141 para 44.
3 Section 12(1).
4 2007 (10) BCLR 1102 (CC).
5 [2016] ZACC 24 para 43 to 47.
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still has a choice whether to arrest the person. In making that choice, the officer
must weigh up all the circumstances of the case and exercise discretion
accordingly.
[13] The respondent, however, asserts that the arresting officer did not exercise his
discretion as he was not aware that he had a discretion. He refers the court to
the transcribed proceedings6:
“Mr Lubbe (for the respondent): Sir, are there other ways to bring someone
to court, orther than to arrest him ?
Mr Morakile: There is no other way that I know of .”
[14] He repeat ed later that arrest is the only way. Once the requirements of the
section were met, the arresting officer was under the erroneous impression that
he had to arrest the respondent. The Constable thus did not know he had a
discretion, so he could not exercise his discretion in line with section 40(1).
[15] It therefore might well be that the jurisdictional facts existed for a lawful,
warrantless arrest, but the fact that the arresting officer did not exercise his
discretion at all, especially when regard is had to the constitutional rights to
liberty, means that the arrest was unlawful .7
[16] It follows, in my view, albeit for slightly different reasons, that the order of the court
a quo was correct. While the jurisdictional requirements for a warrantless arrest
may have been present, the arresting officer failed to exercise the discretion
required under section 40(1) of the CPA. Th is failure rendered the arrest and
subsequent detention unlawful. Therefore, the judgment and order of the
Magistrates Court must stand, and the appeal falls to be dismissed.
Order
1. The late filing of the appeal is condoned.
2. The appeal is dismissed, which costs are to be taxed on scale B.
6 CseLines 18-340.
7 Diljan v Minister of Police [2022] ZASCA 103 para 12.
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WJ DU PLESSIS
Judge of the High Court
Gauteng Division,
Johannesburg
Date of hearing: 20 March 2025
Date of judgment: 4 April 2025
For the appellant : E Mahlangu instructed by the State
Attorney, Johannesburg
For the respondent: E Lubbe instructed by JJ Geldenhuys
Attorneys