ARREST
L3305
ARREST
Introduction
• The Bill of Rights
Section 6 of the Constitution jealously guards an individual’s right to personal
liberty; in particular, he shall not be subjected to contrary arrest and
detention.
• Arrest is thus a drastic interference with personal liberty of an individual
with serious consequences.
• Arrest necessary for protection of society.
• CP & E balances the 2 conflicts this way:
a) Do not incarcerate an innocent person.
b) Protection of the community.
ARREST
• General consequences that follow from an arrest:
1) Any arrest is prima facie unlawful.
2) No general power to arrest vested in any person.
3) A person arresting must act either:
a) Under legal warrant of arrest or
b) Under specific rules of law permitting an arrest without a
warrant.
4) Only permissible as per the procedures laid down by the law.
5) Good motive to arrest does not cure unauthorized arrest.
ARREST
• 4 Pillars of arrest:
1. Properly authorized by law.
2. Exercise of physical control.
3. Accused be informed of reasons for arrest.
4. Trial should commence within stipulated time.
• There are 2 types of arrest:
a) Arrest with warrant
b) Arrest without a warrant
A. ARREST WITH WARRANT
• A warrant of arrest is a written order issued by a magistrate or any other
judicial officer directing that the person described in the document be
arrested by a peace officer in respect of the offence set out in the
document and that he be brought before a judicial officer as specified in s.
38
i. Issuing of a warrant
Section 33 CP & E
ii. Reasonable grounds for suspicion
• TEST: both subjective and objective
• May v Union Government- Held that a policeman must first ask himself;
What are the facts? Do these facts amount in law to the offence in
question? If answers to both are in the negative then his suspicion is
unreasonable and will be liable in damages for unlawful arrest despite the
technical validity of the warrant on the face of it.
B. ARREST WITHOUT A WARRANT
• Introduction
Arrest being a serious interference with personal liberty of an
individual, any arrest should be carried out by way of a warrant
of arrest. This guarantees certain protections against arbitrary
arrest, namely:-
- Suspicions based on honest and reasonable grounds
- Unnecessary civil litigation that may follow
ARREST WITHOUT A WARRANT
• One must realize that concerns for the liberty of the citizen may be
outweighed by considerations such as
1. promoting administration of justice
2. protection of the community at large
3. To avoid the escape of a suspect particularly in serious offences.
• Hence the law has provided for judicial officers, peace officers and even
private citizens to effect arrest without a warrant.
• Although it is preferable that an arrest be effected by a warrant,
circumstances may arise where the delay caused by obtaining a warrant
may enable the accused to escape or to carry on with the crime.
• Hence even private individuals may arrest without a warrant but then
they have to comply with the special circumstances that justify this type
of arrest.
i. By Judicial officers
• The CP & E makes provisions for the following to arrest without
a warrant:
1. Judicial officer
2. Peace officer
3. Private persons
• S23 Judicial officer who sees an offence committed may arrest
the offender without a warrant. He may alternatively instruct
other people to effect an arrest.
• Who are judicial officers
S. 3 CP & E - “Judicial officer” includes a Judge of The High Court,
magistrate, justice or any officer appointed to act in any of the
above capacities.
ii. By Peace officers
S. 3 CP & E – “Peace officer” read out loud…
Section 24 CP & E – Permits peace officer to arrest without a warrant in the following
circumstances:
a) S. 24 (a) Offence is committed in his presence- R v Kleyn & Another 1937 CPD 288
b) Any person attempting to commit an offence in his presence. 24 (c)
-what is important is
• The peace officer must be physically present
• The peace officer must be aware of the offence through his own volition and senses.
• The arrests under this provision must be made immediately not on a subsequent day.
c) Any person who he has reasonable has suspicion that he has committed any offences in Part 2
of the first schedule.(the more serious crimes). Section 24 (b)
– Duncan v Minister of Justice; The officer needs not to be certain that an offence has occurred
but only requires a reasonable suspicion based on reasonable grounds.
-See also; R v Pereko Motjokoseli, Brand v Minister of Justice and R v Nkomo
By Peace officers
• A peace officer may in addition to the above circumstances
also arrest without a warrant in the terms of section 25 a-j
CP & E
• The idea behind the subsections is one of urgent prevention
of crime. It enables a policeman to prevent commission of
the crimes mentioned there even though some may require
a reasonable suspicion.
Case law-Joubert Soere
R v Kleyn
iii. By Private persons
Private persons ordinarily have no right to effect an arrest with or without a warrant.
That would amount to taking the law into his own hands and can lead to unnecessary
deaths and or assaults.
• However maintaining law and order in Lesotho is not left to the police alone
especially in remote areas of the country.
Section 27 CP & E provides that a private person may effect an arrest in the following
circumstances
1. A person who commits a schedule 1 offence in his presence
2. A person who attempts to commit a schedule 1 offence in his presence
3. If he has actual knowledge that a schedule one offence has been committed
Section 27(1) provides that a private person may pursue the arrestee/suspect and
every other private person to whom the purpose of the pursuit has been made known
to them therefore joining and assisting.
Section 28 CP & E – may arrest a person whom he sees engaged in affray(fight).
Section 29 CP & E – owner of property. Not restricted to Schedule I offences.
iv. Duty to assist in arrest
• Having seen section 27, the law permits a private person to effect arrest
without warrant. Furthermore the law provides for private persons to
assist in arrest.
• However under Section 39 CP & E – Every male between ages 16 and 60
must assist a policeman when called upon to effect an arrest and detain a
person so arrested.
• importance
But- only when called upon to do so
• Failure to assist without reasonable excuse is an offence. Section 39(2)
• It is important to note that it very rare almost none existent where there
has been an arrest under section 39.
v. Duty to inform arrested person of cause of arrest
• we saw that under section 34 (1) where a peace officer arrests with a
warrant he is obliged to inform the suspect of the charge and his rights.
Section 32 (4) CP & E – where a person, whether private or peace officer is
effecting an arrest without a warrant, he shall forthwith inform arrestee
cause of his arrest.
• Brand v Minister of Justice – Held that it is not necessary that arrestee be
informed of the ipsissima verba of the charge which he will have to meet
thereafter.
• Failure:
Failure to inform renders the arrest and detention illegal.
vi. Procedure for effecting arrest
In order for one to say I have effect an arrest the person making the arrest
must successfully bring the suspect under his control. This may happen in
various ways;
1. Submission into custody-by word or conduct
-R v Mazema – So long as police assume control of the arrestee’s movements
by word or conduct then he has submitted to custody.
2. Touching- in the absence of submission to custody, the has to be touching
as to restraint the suspect.
3. confining- the suspect may be handcuffed
Section 41 CP & E-This is important because if the arrestee is not yet in under
control, then he has not yet been arrested, hence if he runs away he is not
guilty of escaping from lawful custody as per Section 44 (1) CP & E.
-R v Nkomo
-See also R v Sambo 1964 (2) SA 12
vii. Search upon arrest
• Section 41 (2) CP & E –
• provides that an a peace officer may without a search warrant
search an a suspect and place articles (apart from his clothes)
found upon him in custody.
• Section 41 (3) CP & E – an arrested woman can only be searched
by a woman and shall be made with strict regard to decency.
• Then why do women search men
• Be mindful of section 46 (search warrant)
viii. Entering premises to effect arrest
• If the person to be arrested is known or suspected to be inside a home,
how is the arrest to be made? What do you?
• Section 40 (2) CP & E – an officer or authorized private person proposing to
make the arrest must audibly demand admission, stating the purpose for
which he seeks admission.
• Section 40 (1) CP & E – upon failure to obtain admission, he may forcibly
enter and search the premises and if necessary he may break open doors
and windows, enter and search such premises for the purpose of effecting
the arrest.
• R v Nkomo – It is a condition precedent to exercise right of admission, that
admission should have been audibly demanded and the purpose stated even
if the door was open.
ix. Procedure following upon arrest
• we have already seen that an individual should not be unnecessarily
deprived of his liberty. The purpose of his arrest should be justice
must be done and protect the community and as soon as possible
be brought before court to answer the charge preferred against
him.
• What the procedure then following arrest
• 1. with a warrant
Section 34 (3) CP & E – provides Read out loud
upon arrest on a warrant, arrestee is to be brought to a charge office
as soon as possible and therefore again as soon as possible taken
before court.
- See Tsose v Minister of Justice
Section 32 (1) CP & E – provides read out loud
upon arrest without a warrant, unless it is decided to release arrestee
without a charge, he must not be detained in custody for longer period
than is reasonable. The maximum permissible period being 48 hours.
R v Mtungwa – If the arrestee escapes from custody after 48 hours without
no warrant of his arrest then he is not guilty of escaping from custody.
Section 33 (4) – If a warrant of arrest is obtained after the suspect is in
custody having been arrested without a warrant operates as a warrant for
his future detention and thereby has the effect of extending the 48 hour
period.
x. CONSEQUENCES OF ILLEGAL ARREST
• Detention is subsequently illegal
• Arrestee entitled to resist arrest – R v Pereko
Motjekoseli; Held there is no assault if he resists with
proportional force.
• Arrestee is justified in escaping – R v Joubert Soere;
the escape does not amount to crime under section
44 (1) CP & E.
• Arrestee is entitled to make a habeas corpus
application – section 45 (2) CP & E
• Arrestee may sue for damages - section 45 (2) CP & E
xi. USE OF FORCE IN EFFECTING ARREST
• Section 42 (1) CP & E – if a person who has committed or is reasonably suspected of
having committed a scheduled offence, attempts to flee, or resists while he is being
arrested and cannot be arrested or prevented expect by killing him; the killing is
justifiable.
• R v Britz 1949 (3) SA 293 – outlines the circumstance which the arrestor who kills a
suspect has to satisfy in order for protection under the law.
• Linoko v R – So long as all the requirements of S.42 CP & A are satisfied then
accused is protected
• Section 42 (2) CP & E – limits the scheduled offences by removing theft committed
during the day.
• Mazeka v Minister of Justice – Although each case depends on the particular
circumstances, killing should be the last resort.
• Excessive use of force – A killing by excessive use of force is culpable homicide
(Phaloane v R and R v Koning) unless the excess is so unreasonable as to justify a
verdict of murder. S v Ntuli; The killer must have known that he should not use such
force.
xii. Security Detentions-Lesotho
• Introduction
It should still be bore in mind that every citizen is entitled to their right to
liberty, that no one can be arbitrarily detained except for circumstances
provided for by the law. However, Parliament has seen fit to curtail the liberty
of an individual in order to protect that of the State. Parliament has seen fit to
give to an individual the authority to terminate another individual's liberty if
the former individual is of a certain opinion and the he detained person is at
the mercy of that individual as to when he will be allowed to regain his liberty
• Rationale
Hence in Lesotho the legislature entitles Senior Officers only to arrest
without a warrant and detain such arrestee in custody for purposes of
interrogation in order to effect their duty of maintaining peace and stability
within the nation. This the legislature has arrived at through promulgation of
Section 12 of Internal Security (General Amendment) Act No. 1 of 1974.
• The provision reads as follows:
12. (3) (a) “Notwithstanding anything to the contrary in any law contained, any Senior
officer as defined in the Police Order 1971, may from time to time without warrant
arrest or cause to be arrested any person whom he suspects upon reasonable grounds
of having committed or intending or having intended to commit any offence under this
Act, or any offence involving damage to property of the State or any person, or who in
his opinion is in possession of any information relating to the commission of any
offence
or the intention to commit any such offence and detain such person or cause him to be
detained in custody for interrogation in connection with the commission of or intention
to commit such offence at any place designated by the Commissioner, until such person
has in the opinion of the Commissioner replied satisfactorily to all questions at the said
interrogation but no such person shall be so detained for more than 60 days, unless
rearrested on any of the grounds in this section contained.
• (b) No person shall, except with the consent of the Minister or the Commissioner have
access to any person detained under this subsection Provided that not less than once
during each week such person shall be visited in private by a magistrate of the First
Class.
• 12 (4) No Court shall have jurisdiction to order the release from custody of any person
so detained, but the Minister may at any time direct that any such person be released
from custody."
• The said provision permits the detention or arrest without a warrant of any person
reasonably suspected of committing or intending to commit the offences provided for
under that Act.
• The purpose of the arrest is for interrogation.
• The person arrested is to be committed to a designated place until he has satisfactorily
answered the questions put to him or until the expiry of 60 days after which he may be
rearrested.
• No person is allowed access to him except on consent of Minister or Commissioner.
• The magistrate of first class may visit him at least once a week. However the section is
silent as to what the magistrate should do after such a visit. It will be fair to assume
therefore, that he, among other things, has to listen to the complaints, if any, from the
detainee. Obviously, one would imagine, these would be noted down. See Sello v Compol
1980 (1) LLR 158
• No court has jurisdiction to release the detainee but the court has jurisdiction to inquire
into the legality of the detention e.g:
- He may be detained without an interrogation
- He may be detained for an offence not provided for
- He may be detained long after the interrogation is complete
- Motive for detention may be due to malice
- The wrong person may have been detained.
Therefore the Court has a discretion to disallow the evidence if the strict rules of admissibility
would operate unfairly against an accused person. As a result, the provision has to be strictly
