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Arrest, by definition, constitutes a serious restriction of the individual's freedom of movement, and can also affect his dignity and privacy. Because an accused person, before conviction, ought to be treated as far as possible as being innocent, arrest should be effected only where it is likely that a summons or written notice to appear would be ineffective.1 The law must protect suspects as much as possible against unlawful arrest, while not hampering the effective investigation and prevention of crime.

Normally, the police needs a warrant to arrest a person. Listed here are some of the circumstances where an arrest may be effected without a warrant:2

  1. When a person commits or attempts to commit a crime in the police official’s presence;
  2. Where the police official entertains a reasonable suspicion that the person he is arresting has committed one of a list of more serious offences. Amongst these offences are murder, public violence, robbery, rape, housebreaking and arson;
  3. Any person who wilfully obstructs a police official in the execution of his duty;
  4. When a police official is convinced the person has escaped or attempted to escape from lawful custody;
  5. When a person found in possession of property reasonably suspected to have been stolen or acquired by dishonest means.

Where an arrest without warrant is effected by a police officer and is not permissible, the arrestee might lawfully resist or flee. Moreover, such arrest might form the basis of a civil action for damages.

1 S v More 1993 (2) SACR 606 (W) 608

2 Sec 40 CPA


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