UNLAWFUL ARREST – WHAT CONSTITUTES REASONABLE SUSPICION

MAWU AND ANOTHER v MINISTER OF POLICE 2015 (2) SACR 14 (WCC)

Arrest — Legality of — Arrest without a warrant — Criminal Procedure Act 51 of 1977, H s 40(1) — Reasonable suspicion — What constitutes — Requirements of s 40(1)(b) discussed — Officer arresting owner of vehicle after he had been given registration number of vehicle speeding away from robbery — Although registration numbers the same, discrepancy in description of vehicle — In circumstances ought to have made further investigation before making arrest — Arrest unlawful.

The plaintiffs sued for damages for unlawful arrest and detention. The arrests took place late at night when the police, acting on information that an armed robbery had taken place and that the suspected robbers had made off in a dark-grey Toyota Yaris sedan with registration No CA 169 976, hastened to the address of the registered owner of that vehicle, the first J plaintiff, who in fact owned a black Toyota Yaris with the same registration number. The arresting officer alleged that the first plaintiff initially lied about the whereabouts of the vehicle when he arrived at the premises and asked to see it but she subsequently took him and his colleagues to a neighbouring garage where it was parked and the engine was still warm. He found certain items in the car and at the first plaintiff’s house which she denied any knowledge of. He then asked his colleagues to take a man whom they had found at the first plaintiff’s house and to guard him in the police vehicle. This man, however, fled from the police van, allegedly assisted in his escape by the second plaintiff who was then also arrested along with the first plaintiff. They were detained for a few days until the charges were withdrawn and they were released. The court was required to determine in the circumstances whether the arresting officer had a reasonable suspicion on which to arrest the two plaintiffs.
Held, that there was no authority for the proposition that for a reasonable suspicion to be formed, the quality of the information upon which the arrestor acts must be analysed and assessed, and that acting on the information, the quality of which has not been subjected to scrutiny, will render an arrest unlawful. There was nothing in s 40(1)(b) of the Criminal Procedure Act 51 of 1977 which led to the conclusion that this was the requirement. A lawful arrest in terms of that provision could be made upon a reasonable suspicion.
Held, further, that the grounds on which the arresting officer relied in order to found a reasonable suspicion were not consistent with the facts found to have been proven at the trial. He had been mistaken as to when he had taken the decision to arrest the first plaintiff and he did not know at the time whether the goods found in the first plaintiff’s car and house were the goods that had been stolen from the victim of the robbery.
Held, further, that the discrepancy in the vehicle details should have alerted him to further investigate the discrepancy before making an arrest.
Held, accordingly, that the suspicion entertained by the arresting officer was not a reasonable suspicion and the arrest of the first plaintiff was not justified by s 40(1)(b) and hence it was unlawful. Held, further, that on the evidence the defendant had not discharged the onus of proving the lawfulness of the arrest of the second plaintiff either.

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