oa De Jure - 2011 1 SACR 315 (SCA) : recent case law



The right to liberty of the person has always been accorded protection by our courts even before the advent of the Constitution. This right has been constitutionalised in the post-apartheid Constitutions. Section 12 of the Constitution of 1996 guarantees everyone's right to freedom and security of the person, which includes the right "not to be deprived of freedom arbitrarily or without just cause". Like all rights in the Bill of Rights, the right to freedom is not absolute and can, where it is reasonable and justifiable, be limited. Section 36 of the Constitution provides for the general limitation of the rights in the Bill of Rights. Arrest by police officials is one of the most common means of limiting an individual's right to freedom. Arrest may take one of two forms: arrest without a warrant and arrest with a warrant (in terms of ss 40 & 43 of the Criminal Procedure Act 51 of 1977 (CPA) respectively). This article will not concern itself with the latter form, ie arrest with a warrant. Suffice it to say unlike a warrantless arrest, arrest on a warrant is subject to judicial oversight. For an arrest without a warrant to be lawful, it has to satisfy the four jurisdictional facts set out in (1986 2 SA 805 (A) 818G-H). Where these factors are complied with, the arrest is deemed lawful regardless of its reasonableness. These factors are:

(a) the arrestor must be a peace officer;
(b) she must entertain a suspicion;
(c) the suspicion must be that the suspect has committed an offence listed in schedule 1 of the CPA;
(d) such suspicion must be based on reasonable grounds.


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