Moleko v Minister of Police and Another (32378/2016) [2019] ZAGPPHC 355 (5 August 2019)

/ / 2019, Criminal Law


This case deals with an arrest made in terms of Section 40 (1)(b) of the Criminal Procedure Act (“CPA”), namely an arrest made by a peace officer without a warrant where such an officer is under the reasonable suspicion that the accused may have committed an offence referred to in Schedule 1:
On or about 10 June 2015, Mr. Moleko (herein “the Plaintiff”) was arrested by Constable Abel Sibanyoni and Sergeant Rebecca on the suspicion of armed robbery and other allegations. The Plaintiff was released on 5 November 2015 (In terms of a Section 174 discharge) as the state/prosecution failed to prove its case against the Plaintiff.         The arrest was made by the officers in their scope and course of employment as officers under the South African Police Services (“SAPS”).

The matter was then brought before the North Gauteng High Court for deliberation only concerning the merits of the arrest and whether such arrest was carried out lawfully. Furthermore, it needed to be determined whether the subsequent prosecution of the accused amounted to malicious prosecution. The aspect of quantum was not dealt with here and was reserved for a later stage.


The court looked closely at Section 40(1) of the Criminal Procedure Act which gives peace officers extraordinary powers to arrest. It was held that the circumstances when such arrest is made must be carefully considered otherwise it may result in the arrest being considered to be unlawful.

The court drew inference from the Duncan v Minister of Law and Order 1986 (2) SA 80 case which stated that jurisdictional facts must exist before the above arrest can be exercised, this includes: the arrester must be a peace officer;the peace officer must entertain a suspicion;it must be a suspicion that the arrestee committed a schedule 1 offence andthe
suspicion must rest on reasonable grounds.  

It is only once these jurisdictional facts are present will the Officer have the discretion to decide whether to arrest or not. This same discretion must then be exercised in good faith, rationally and not arbitrarily and requires an objective enquiry with relation to the facts at hand.   In Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 SCAit was held that “reasonable grounds” are interpreted objectively and must be of such a nature that a reasonable person would have had a suspicion. This test was further considered and concisely summarized in the case of Mobona v Minister of Law and Order 1988 (2) SA 654 SECwhere it was established that what is required is suspicion not certainty. Essentially, there must be evidence that the arresting officer formed a suspicion which is objectively sustainable.  

The well-established principle in our law is that the onus rests on the arresting officer to prove the lawfulness of the arrest carried out. The Honourable judge was of the opinion that the Defendants had shown that they exercised their suspicion reasonably as required in terms of the fourth jurisdictional requirement. Moreover, the police officer’s dependency on oral testimony from those at the scene was crucial in establishing that solid grounds existed for the suspicion.

Having regard to the evidence before presented before the Court the learned judge was satisfied that a reasonable suspicion was established and that it was based on solid grounds. Consequently, the arrest was deemed lawful. Malicious prosecution In respect of uncovering whether the prosecution amount to malicious prosecution the court consulted the case of the Minister of Safety and Security v Moleko (2008) 3 ALL SA 47 (SCA) whereinit was held that the following must be proven:-
That the defendants set the law in motion (instigated or instituted the proceedings);the defendant had no reasonable or probable cause to do so;that the Defendants acted with “malice” (or animo injunandi) andthat the prosecution has failed.

The learned judge found that the prosecution failed for a lack of evidence and that having regard to the above the requirements for malicious prosecution were met.

Therefore, the following order was made: the defence of unlawful arrest is dismissed;the defence of malicious prosecution is upheld;the Plaintiff is entitled to such damages as he may be able to prove he sustained due to the malicious prosecution by the Defendant;the Defendants are to pay the costs of this trial.


This case illustrates that an arrest made by a Peace Officer under Section 40 (1) must satisfy certain jurisdictional facts before such arrest would be warranted. It places particular focus on there being “reasonable grounds” arising from a suspicion which lead to the subsequent arrest. In addition, the case touched on malicious prosecution and the requirements needed to prove whether prosecution was malicious or not. 

Written by Kyle Venter and Checked by Lisa Schmidt

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