n Tydskrif vir die Suid-Afrikaanse Reg - Arrest without a warrant and abuse of right : regspraak

Volume 2010, Issue 4
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



In order to be lawful, an arrest without a warrant by a police officer must comply with the following six requirements (see for details Bekker in Joubert (ed) (2009) 103-104; Scott "Wrongful arrest: A brief survey of the impact of the constitution in recent case law" 2009 728; Neethling, Potgieter and Visser (2005) 116-119). Firstly, the person to be arrested must commit an offence or attempt to commit an offence in the presence of a police officer, or he must reasonably be suspected by a police officer of having committed an offence listed in the Criminal Procedure Act 51 of 1977 (s 40 of the act). Secondly, the purpose or object of the arrest must be to bring the arrestee before a court to be tried for the alleged offence (see 2002 4 SA 613 (CC) 653). Thirdly, the arrest must be necessary to assure the appearance in court of the person to be arrested (see 2006 2 SACR 178 (T) 187; 2009 2 All SA 211 (C) 222; cf Scott 731 ff). Fourthly, the body of the person to be arrested must be actually touched unless he submits to custody, or, if the circumstances so require, he must be forcibly confined (s 39(1) and s 49 of the act). Fifthly, the police officer, at the time of effecting the arrest or immediately thereafter, must inform the arrestee of the reason(s) for his arrest (s 39(2) of the act). Finally, the arrestee must be taken to a police station as soon as possible (s 50(1)(a) of the act).

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