[2023] ZACC 36

Hearing Date: 14 February 2023

Judgement Date: 14 November 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 14 November 2023 at 09h00 the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, Eastern Cape Division, Makhanda (the High Court).

Mr Robert Groves, the late husband of the applicant, Mrs Bianca Stepheney Groves, was arrested on 26 September 2016 following an undercover operation authorised in terms of section 252A of the Criminal Procedure Act 51 of 1977 (CPA). During the undercover operation, Cst Dietrich, the investigating officer, instructed Constable (Cst) Zaayman who was equipped with a hidden camera to purchase three mandrax tablets and was shown a photograph of Mr Groves. There were two male individuals present at the location of the undercover operation, Mr Groves’ home, one of whom was in a red T-Shirt. The man in the red t-shirt asked Cst Zaayman whether he was a police officer, before directing him to the tuckshop window to purchase the drugs. Cst Zaayman informed Cst Dietrich orally that he purchased the pills from Mr Groves, the male person behind the tuckshop window. Cst Dietrich used this oral confirmation from Cst Zaayman rather than the video footage which was of poor quality.

Cst Dietrich’s commanding officer then applied to a Magistrate for a warrant of arrest for Mr Groves under section 43 of the CPA. Mr Groves was arrested by Warrant Officer (W/O) Swanepoel. W/O Swanepoel did not have the docket with him nor did he know the contents of the docket at the time he arrested Mr Groves. Some time following Mr Groves’ first appearance in the Regional Court and his subsequent release on bail, Mr Groves’ attorney informed the prosecutor that Mr Groves was not the individual behind the truck shop window, but instead was the individual in the red T-shirt. Cst Dietrich confirmed that Mr Groves was the man in the red T-shirt and the man who sold the pills to Cst Zaayman was in fact the brother of Mr Groves. The prosecution authorities subsequently withdrew the charges against Mr Groves on 30 May 2018. Thereafter, Mr Groves pursued claims of malicious, alternatively wrongful and unlawful, arrest and detention and malicious prosecution in the Port Elizabeth Regional Magistrate’s Court (Regional Court).

The Regional Court dismissed the claims for malicious, alternatively wrongful and unlawful, arrest and detention and malicious prosecution. The Regional Court found that Csts Zaayman and Dietrich had genuinely, albeit mistakenly, believed that Mr Groves was the man behind the truck shop window selling the drugs when the application was made for the warrant. The fact that the man in the red T-shirt, Mr Groves, asked Cst Zaayman if he was a police officer, in addition to the video depicting a drug transaction, gave Cst Dietrich probable cause to obtain the warrant.

Regarding the claim for malicious detention, the Regional Court held that the prosecutor was entitled to postpone the matter during the period of 28 September 2016 to 6 October 2016 in order to obtain a profile of Mr Groves, and when Mr Groves was brought before the Regional Court, the police’s authority to detain Mr Groves was extinguished under section 50 of the CPA. Further, the evidence of previous drug transactions at Mr Groves’ property and of his potential gang membership, rendered Cst Dietrich’s proposal for no bail reasonable.

With regards to W/O Swanepoel, the Regional Court held that his execution of the arrest based on the warrant was reasonable and the judgment left open the question whether W/O Swanepoel was required to exercise discretion in execution of the warrant. The Regional Court further held that the prosecution was not malicious because there were factors prompting the undercover investigation: Mr Groves was at the scene of the crime and facilitated the transaction. The Regional Court made a punitive costs order on the applicant, finding that Mr Groves deliberately “orchestrated” his claims.

Mr Groves appealed the Regional Court’s findings to the High Court. The High Court dismissed the claims of malice in his arrest because it was based on an honest belief that he had committed the offence. Similarly, Mr Groves’ prosecution was not malicious, according to the High Court, because the mistaken identity of Mr Groves was not known at the time the prosecution received the docket. The High Court relied on evidence that W/O Swanepoel would have still arrested Mr Groves had he known that he could exercise discretion to show that this decision was rational and reasonable. The High Court did not amend the Regional Court’s punitive costs order because the reasoning was, so the High Court considered, fully ventilated in the judgment.

The Supreme Court of Appeal (SCA) dismissed Mr Groves’ application for leave to appeal with costs on 27 July 2022 because Mr Groves did not meet the requirements for special leave to appeal.

In this Court, the applicant submitted that this matter raises several constitutional issues which engage the Court’s jurisdiction, including his right to personal liberty under section 12(1)(a) of the Constitution and to be released under section 35(1)(e) and (f). The applicant also argued that the punitive cost order raised a constitutional issue. The applicant further contended that the matter raised an arguable point of law which transcended the litigation interests of the parties and affected the public interest.

Turning to the merits, during oral argument, counsel for the applicant narrowed the issue to unlawful arrest based on W/O Swanepoel not knowing he had, and therefore not exercising, a discretion. The applicant relied on the SCA’s judgment in Minister of Safety and Security v Sekhoto in support of their claim that W/O Swanepoel had a discretion in terms of section 43 and that it was necessary for him to exercise that discretion when arresting Mr Groves. The applicant submitted that the discretion vested in a peace officer under section 43(1) of the CPA, when executing a warrant, is no different from the discretion an officer exercises when making an arrest without a warrant under section 40(1) of the CPA. The applicant contended that, if W/O Swanepoel had exercised this discretion, he would not have arrested Mr Groves because he was at home, he was not a flight risk and he had an aerial around his leg as a result of a bullet wound. Further, the fact that W/O Swanepoel admitted he did not know he had a discretion showed that he did not exercise a discretion, and thus, Mr Groves arrest and subsequent detention were unlawful.

The respondents submitted that only the issue of discretion engaged this Court’s jurisdiction. The respondents argued that the other issues raised by the applicant were challenges to supposedly incorrect factual findings and thus dis not engage this Court’s jurisdiction. On the merits, the respondents submitted that under section 44 of the CPA, read with section 43(2), it is clear that an arresting officer has no discretion and must effect the arrest. They argued that an officer’s role is limited to: (a) ensuring the person arrested is the one described in the warrant of arrest; (b) informing the arrested person of their right; and (c) bringing the arrested person before a lower court. Further, the respondents argued that the arresting officer does not have a discretion because the Magistrate is already required to exercise a discretion on the facts presented in order to issue the warrant.

In a unanimous judgment penned by Potterill AJ (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Rogers J and Theron J concurring), this Court held that the matter does engage its jurisdiction because it raises an unresolved legal question relating to powers of arrest and detention on the strength of a warrant. Further, this Court held that it is in the interests of justice to grant leave to appeal to adjudicate the question whether an arresting officer must exercise a discretion when arresting on the basis of a warrant. On the merits, this Court held that section 43(2) of the CPA does not grant arresting officers a discretion whether to arrest or not, because the section uses “shall” rather than “may”. Further, the use of “may” in section 44 of the CPA relates to who has the power to execute the warrant, and does not confer a discretion when executing it. Therefore, there is no conflict between section 44, which determines who may arrest, and section 43(2), which places an obligation on the officer to arrest under the terms of the warrant. This Court found that the statement in Sekhoto referencing Groenewald v Minister van Justisie, was an error of law because Groenewald dealt with the discretion of a Magistrate or peace officer authorising the warrant rather than the discretion of a peace officer making an arrest on a warrant. This Court reasoned that the factors laid out by the applicant—that he was at home, he was not a flight risk and he had an aerial around his leg—did not render the execution of a warrant irrational or without just cause.

With regards to costs, this Court reversed the Regional Court’s punitive costs order because Mr Groves’ arrest was based on mistaken identity, and thus, the Regional Court’s assertion that his claims were orchestrated was unsubstantiated. Further, the issue of police discretion is of interest to persons arrested under the terms of a warrant, as well as police officers executing a warrant, and therefore, a punitive costs award was unfounded.

In the premise, the Constitutional Court granted leave to appeal and dismissed the appeal save for the costs order of the Regional Court which was set aside and replaced with an order for ordinary costs.


The Full judgment  here