The social fabric of the South African society continues to be tainted by high crime rates, domestic violence, and gender-based violence. The South African Police Service (“SAPS”) carries a constitutional and statutory responsibility to combat crime and maintain public order. Unfortunately, wrongful arrests remain a persistent problem in South Africa. On numerous occasions, citizens are arrested, detained, humiliated, and exposed to public embarrassment in circumstances where such arrests were not legally justified. This article examines when an arrest may be considered wrongful, with reference to the recent case of Zilwa v Member of the Executive Council for the Department of Transport and Public Works and Another.

Arrests with or without a warrant

In terms of South African law, a peace officer may arrest a suspect either with or without a warrant. Where an arrest is effected without a warrant, it must strictly comply with the provisions of section 40 (1) of the Criminal Procedure Act 51 of 1977 (“CPA”). An arrest without a warrant is an invasion of a person’s liberty and dignity, both of which are protected under the Constitution. Consequently, the justification of such an arrest depends on the facts and circumstances of each case.

Facts of the Zilwa case

In the case of Zilwa, the plaintiff was arrested by a traffic officer on a charge of exceeding the speed limit and was thereafter detained. The plaintiff had been travelling in a convoy from Johannesburg to Laingsburg. At the time the plaintiff departed from Bloemfontein, his vehicle was in Mthatha. Importantly, the plaintiff was not the driver of the vehicle but a passenger in one of the convoy vehicles. He had arranged for his driver to transport his vehicle separately to Laingsburg.

While travelling on the main road towards Cape Town, the plaintiff noticed an unmarked white GTI vehicle following him with blue lights activated. A traffic officer approached the plaintiff and requested his driver’s licence. The plaintiff was then instructed to proceed to a police station with the traffic officer.

Upon arrival at the police station, the plaintiff was surprised to find his friends and their vehicles already parked there. The traffic officer proceeded to open his electronic tablet and stated that the driver of the plaintiff’s vehicle had been speeding and that the plaintiff was to be arrested as well. The plaintiff expressly informed the traffic officer that he was not the driver of the vehicle in question. This crucial fact was entirely disregarded. The traffic officer proceeded to arrest the plaintiff, and chains were placed on his legs. It was common cause that the plaintiff was arrested without a warrant for allegedly exceeding the speed limit, and that no admission of guilt fine had been determined.

The court’s finding

The court considered the provisions of the National Road Traffic Act in conjunction with section 40(1)(b) of the Criminal Procedure Act. It held that a peace officer or traffic officer is not empowered to arrest a suspect for ordinary speeding in circumstances where no admission of guilt fine has been determined.

The court emphasised that ordinary speeding, without more, does not justify an arrest without a warrant. Such an arrest falls outside the ambit of section 40(1) of the Criminal Procedure Act and is therefore unlawful. The arrest and subsequent detention of the plaintiff were found to be wrongful.

Legal significance of the judgment

This judgment serves as an important reminder and guide that an arrest without a warrant may only be effected in narrowly defined circumstances and must be justified in terms of the CPA. The decision reaffirms that law enforcement officers may not abuse their powers under the guise of crime control, particularly where less invasive measures are available.

Where an arrest is not legally justified, as demonstrated in Zilwa, the victim may have claim against the Minister of Police for wrongful arrest and detention.

Should you believe that you have been wrongfully arrested, the first step in seeking justice is to consult with expert legal practitioners. Please feel free to contact us or book a consultation.

 

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