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Ntoni Jacob Hlape v The Minister of Police - (03 May 2024)

An arrest has to be effected on the authority of a warrant or without a warrant; onus rests on the arrestor to justify an arrest


The appeal emanated from the appeal court of the Gauteng Division of the High Court, Johannesburg (the appeal court) wherein the appellant, Mr Ntoni Jacob Hlape, had appealed against a decision of the Magistrates’ Court for the District of Emfuleni, held at Vereeniging (the magistrates’ court) as that court had dismissed the appellant’s claim of R200 000 against the Minister of Police (the respondent) for his alleged unlawful arrest and detention. The appeal court similarly dismissed the appellant’s claim.

Section 38(1) of the Criminal Procedure Act, 1977 (the CPA) provides that arrest is one of the four methods of securing the attendance of an accused in court for purposes of trial. Because of its intrusive nature on the privacy and liberty of the arrestee, an arrest has to be effected on the authority of a warrant, or, under certain circumstances, without a warrant. Consequently, the onus rests on the arrestor to justify an arrest.

Present Court with regards to the unlawful arrest, reasoned that the four jurisdictional requirements of Section 40(1) of the Criminal Procedure Act, 1977 were met, as Sergeant Sibande was a police officer, who entertained a suspicion after a community member informed him of some male persons smoking dagga in a shack. Possession of dagga was, at that time, an offence in terms of Section 4 of the Drugs and Drug Trafficking Act, 1992. The suspicion rested on reasonable grounds that whoever was smoking dagga in that shack, logically had that dagga in his possession. The appellant confirmed in his evidence that he had dagga in his possession. In addition to the admission, the appellant did not tender any evidence to prove that Sergeant Sibande failed to exercise discretion to arrest.

There was no evidence supporting the allegation that there was no exercise of discretion to arrest, or that the arrest was made in bad faith, irrationally or arbitrarily. With regards to the appellant’s detention being unlawful, the Supreme Court held the view that this claim should also fail as the appellant’s detention was indeed lawful due to his consistent failure to respond to the police officer and provide him with basic facts which would have enabled them to exercise a discretion or value judgment not to arrest him, or, alternatively, to have him released from detention on bail. Appeal dismissed.


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