In certain circumstances it may very well be possible to hold the Minister of Police responsible for the actions of an off-duty officer, being that he is still an officer under his/her employ. To start one must look at the Constitution for initial guidance, in particular Section 10 and 12, which states that The State has an obligation to respect, protect and promote the Citizen’s right to dignity, freedom and security. For this purpose the State established, amongst others, the South African Police Service (SAPS) to fulfill its obligations to prevent, combat and investigate crimes, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law in terms of Section 205(2) and (3) of the Constitution under the direct control and supervision of the Minister of Police. When an officer is off-duty the control and supervision that the Minister has over such an employee, for the most part, no longer exists in an official capacity, meaning that the Minister can no longer be held liable for the actions of the officer, however that being said it has been shown that in certain circumstances the Minister may in fact be held liable even where the officer was off-duty. In recent developments it has been found that even where an officer is off-duty if there is a sufficiently close enough link between the employee’s actions and the employer, then the employer may still be held liable. It is a two pronged assessment: 1. Was the employee acting in his own interest and for his personal capacity (subjective); if yes then 2. Is there a sufficiently close enough link between the actions of the employee and that of the employer (objective)? It is therefore safe to say that while not in all circumstances, there are instances where the Minister may yet still be held liable for the actions of an off-duty police officer. The Constitution of the Republic of South Africa Nkuna v Minister of Police (15/10/2019) [2019] ZAMPMBHC 5; RATSHIBVUMO AJ Booysen v Minister of Safety and Security 2018 (2) SACR 607 (CC) Minister of Police v Rabie 1986 (1) SA 117 (A) K v Minister of Safety and Security 2005 (6) SA 419 (CC) F v Minister of Safety and Security 2012 (1) SA 536 (CC)

Section 40 of the Criminal Procedure Act (CPA) provides for numerous instances where a peace officer may arrest any person based on their reasonable suspicion that they have committed or are about to commit an offence.

Reasonable suspicion is defined as “a feeling or belief that someone is guilty of an illegal, dishonest or unpleasant action”. This means that you could be arrested by any peace officer if they suspect that you were involved in or could in the near future be involved in committing an offence.

It is therefore important to note the requirements that must be met before you can be arrested without a warrant:
– The arrestor must be a peace officer;
– An offence must have been committed or there must have been an attempt to commit an offence;
– The attempt or commission must have been in the presence of the peace office.

The power to arrest any person only comes into existence when the above mentioned facts come into play. For example, if a peace officer who is driving around the neighbourhood in the middle of the night and he/she finds a person walking next to the side of the road, they are within their rights to ask that person why he/she is on the streets so late at night (Section 40(1)(f) of CPA). If the
person walking on the street, is in possession of instruments such as a hammer, screwdriver, numerous cell phones and watches, he/she may be rightfully arrested by the officers on suspicion of being in possession of stolen goods (Section 40(1)(e)), if they cannot provide a sufficient reason as to why they are in possession of these goods.

It is therefore important to note that the burden of proof is on the arresting officer to prove that the arrest was indeed lawful in terms of the CPA. In Minister of Law and Order and Others v Hurley and Another, Rabie CJ held that “an arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the
arrest of another person should bear the onus of proving that his action was justified in law”.

This is one of the very few instances in South African law where the Defendant (the arresting officer) bears the onus of proof. This means that the arresting officer who arrested anyone without a warrant of arrest will need to prove in a court of law that the arrest was necessary and indeed lawful. He/she will have to show evidence of their “reasonable suspicion” that a crime was or would have been committed.

In MR v Minister of Safety and Security it was emphasised that Section 40 of the CPA does not order a peace officer to arrest any person without a warrant but it rather gives a peace officer the discretion to arrest any person without a warrant by using the word “may” arrest instead of “must”.

In conclusion, your arrest was not unlawful simply because it was effected without a warrant. You can be arrested by a peace officer without a warrant for the numerous offences listed in Section 40 of the CPA. However, the arresting officer bears the onus of proof to show that the arrest was in fact lawful by presenting evidence of his/her reasonable suspicion that you committed or would have
committed the offence in question. Further, the CPA gives an arresting officer the discretion to make an arrest without a warrant and does not command any peace officer to arrest without a warrant. This leads us to come to the conclusion that any peace officer should rather use alternative methods of securing an accused’s attendance at court, such as a written notice to appear or obtaining a valid warrant of arrest.

The plain and fundamental rule is that every individual’s person is inviolable. Section 10 of our Constitution states that “Everyone has inherent dignity and the right to have their dignity respected and protected.”

Moreover, section 12 of the Constitution recognises that everyone has the right to freedom and security of the person, which, inter alia, includes the right not to be deprived of freedom arbitrarily or without just cause and the right not to be detained without a trial.

The Criminal Procedure Act (“The Act”) sets out the requirements for a lawful arrest. In particular section 40 of the Act sets out the requirements when an arrest without a warrant can be lawful. According to section 40 of the Act, a police officer can arrest without having a warrant if, inter alia, witnessing a crime (if a crime is committed in the presence of the officer), or if there is a reasonable suspicion that the person is in possession of stolen property and whom the officer reasonably suspects of having committed an offence with respect to that property.

These are just two of various further instances when an arrest can indeed be lawful without a warrant.

Should the arrest not fall withing the scope of section 40 of the Act, we can assume that such arrest was prima facie unlawful.

Instituting a claim for wrongful arrest

A claim for wrongful arrest is firstly a civil claim, not a criminal one.

Secondly, such a claim will be an action against an Organ of State, which is regulated by The Institution of Legal Proceedings against Certain Organs of State Act (“Organs of State Act”). According to this Act, there are certain procedures that need to be followed when suing an Organ of State.

Requirements to institute a claim
Within 6 months of the claimant becoming aware that he has a claim , he has to give written notice of the intention to institute legal action against the SAPS and the Minister of Police. This notice must be delivered by hand or registered post.

Once this Notice to institute legal proceedings has been served, one must institute a civil claim against the Minister of Police within 3 years. Important to note is, that if you fail to give the obligatory 6 months’ notice, your claim has actually prescribed/lapsed and the only way to still continue with such a claim is if you ask the court for a condonation. In such an application you will have to show good cause why you failed to give the required 6 months’ notice.

1 Act 51 of 1977, as amended.
2 Act 40 of 2002, as amended.
3 NB. Ignorance is no excuse. Section 3(3)(a) clearly states that a claimant “…must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, ….”.
4 Section 3(2)(a) of Act 40 of 2002, as amended

Conclusion
In actions for damages for wrongful arrest or detention, our courts have adopted the rule that such infractions are prima facie unlawful.
Once the arrest has been admitted or proved, it is for the defendant to allege and prove the existence of grounds in justification of the infraction. Claims against Organs of State are highly specialised litigation and it takes a lot of experience in the field to see a matter to the end. At Campbell Attorneys we have many years of experience in litigating against Organs of State. You matter with us and are in good hands.

4 See fn.3 above. Just because you did not know that you had a claim is no good cause and will not prevent prescription of the matter.
5 Madyibi v Minister of Police (4132/17) [2020] ZAECMHC 11 (17 March 2020)