n South African Journal of Criminal Justice - Reasonable suspicion and conduct of the police officer in arrest without warrant : are the demands of the bill of rights a fifth jurisdictional fact?

Abstract

Quite apart from the power to arrest a person who committed or attempted to commit an offence in the presence of a police officer under s 40(1)(a) of the Criminal Procedure Act 1977, the officer can, under s 40(1)(b), arrest anyone without a warrant if he or she reasonably suspects that the person has committed an offence specified in Schedule 1 of the Act. As much as the determination of whether an offence has been committed or about to be committed in the presence of an officer is difficult to prove, what is a reasonable suspicion that an offence has been committed is even more intractable to determine. Yet, similar elusive terms exist in criminal justice statutes of other Commonwealth countries. Further, notwithstanding the problem of accurately pinpointing the elements of reasonable suspicion, the law-maker has unrelentingly deployed this same problematic expression in the legislative schemes dealing not only with arrests and detentions, but also use of force to effect arrest, entry into private property in order to arrest or search and seize property, as well as the law of malicious prosecution.