Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
In Wrongful arrest: a brief survey of the full impact of the Constitution in recent case law (2009, Obiter, 533–546), the effect of several recent court judgments on the scope of section 40(1) of the Criminal Procedure Act, 1977 is scrutinised. This subsection authorises a peace officer (including a police officer) to arrest someone without a warrant. For many years, since Tsose v Minister of Justice 1951 3 SA 10 (A), it was simply undisputed that such lawful arrest could be made if the peace officer intended to bring the arrestee before a court of law. The officer’s bad motive was regarded as irrelevant. In several judgments since 2004, it has been held that strict application of the Tsose-rule could fly in the face of, inter alia, section 12 of the Constitution, 1996, which guarantees the fundamental right of freedom and security of the person. The research shows that where there are alternative ways of bringing someone before court, an arrest on the strength of the Tsose-rule alone will undoubtedly be wrongful, resulting in a civil claim against the arrestor and, in most cases, against the Minister of Safety and Security.
Contact person: Prof TJ Scott.
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