A Peace Officer may arrest an individual when the following requirements are met: 1. The person arresting must be a peace officer 2. A suspicion must that a schedule 1 offence has been committed 3. The suspicion must be established on reasonable grounds.
A claim arises when and only when the discretion to arrest is excursed irrationally, without good faith and arbitrarily the test used to determine this is objective in nature.
Compiled by: Jean Vermaas (B. Com Law, L.L.B, L.L.M); source: https://www.lexisnexis.co.za/
Delict :: unlawful arrest
Moleko v Minister of Police and another
Case Number: | 32378 / 2016 |
Judgment Date: | 05 / 08 / 2019 |
Country: | South Africa |
Jurisdiction: | High Court |
Division: | Gauteng, Pretoria |
Bench: | Sardiwalla J |
Keywords:
Personal Injury/ Delict – Unlawful arrest and malicious prosecution – Claim for damages – Requirements
Mini Summary:
In June 2015, the plaintiff was arrested on suspicion of armed robbery in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. He was released on 5 November 2015 on a section 174 discharge as the prosecution failed to prove its case against him. Claiming to have suffered damage for loss of freedom, invasion of privacy and impairment to dignity, he sued the defendant for such damages. The present court was required to only make a finding on the merits.
Held that section 40(1) of the Act gives peace officers extraordinary powers to arrest. The jurisdictional facts which must exist before such power can be exercised are that the arrester must be a peace officer; who must entertain a suspicion; that the arrestee committed a schedule 1 offence; and the suspicion must rest on reasonable grounds. Once the jurisdictional facts are present a discretion arises whether to arrest or not. Such discretion must be exercised in good faith, rationally and not arbitrarily. That is an objective enquiry with relation to the facts.
The crux of the dispute between the parties was whether the suspicion that the plaintiff committed the offence was established on reasonable grounds. Having regard to the evidence before the court and in light of the aforesaid authorities, the court was satisfied that a reasonable suspicion was established and that it was based on solid grounds.
The court then set out the requirements for malicious prosecution. The plaintiff would have to prove that the defendants set the law in motion (instigated or instituted the proceedings); that (the defendants acted without reasonable and that the defendants acted with “malice” (or animo injunandi); and probable cause; and that the prosecution had failed. Those requirements were met by the plaintiff in this case, and he was entitled to such damages as he might prove relating to his malicious prosecution.