Arrest without a warrant: Is the current South African approach warranted?

Abstract Section 12(1) of the Constitution of the Republic of South Africa, 1996, enshrines everyone’s ‘right to freedom and security of the person and this right ‘includes the right not to be deprived of freedom arbitrarily or without just cause’. Several cases emanating from actions of police officers in effecting arrest have come before the courts over time. The courts, therefore, had the opportunity to align the law of arrest with the constitutional injunction. However, the courts seem to restrict their focus to the (un)lawfulness of the arrest and hardly include ‘arbitrariness’ in analysis. It is argued that a proper approach is to go beyond the (un)lawfulness of the arrest by enquiring into its necessity, justifiability and proportionality. The use of the word ‘arbitrarily’ instead ‘unlawfully’ in the Constitution is not without significance. It signals that the Constitution requires more than just the lawfulness of the arrest. In this article, it is suggested that the current legal position that, in broad terms, holds that a lawful arrest cannot be arbitrary has to be revisited. The focus of the article is arrest without a warrant because, it appears, that is where most of the problems arise.