KNOWLEDGE OF THE EXISTENCE OF DISCRETIONARY POWERS IS AN IMPLIED PRECONDITION TO THE PROPER EXERCISE OF A DISCRETION TO ARREST WITHOUT A WARRANT Motabatshindi v Minister of Police (South Gauteng High Court, Johannesburg (unreported) 2014-09-26 Case No A3

Abstract

This note aims to examine the findings of the South Gauteng High Court in Motabatshindi v Minister of Police (hereinafter “Motabatshindi”). In this case, which was an appeal from the Johannesburg Magistrates Court, the High Court was called upon to decide if the magistrate had correctly interpreted and applied the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (hereinafter “CPA”). The main bone of contention in the case was whether a police officer who admits that he was not aware that the section conferred discretionary powers on him could, nevertheless, be said to have properly exercised the discretionary powers conferred by the section where the magistrate found his actions to have been bona fide. Put in another way, the High Court was asked to pronounce if an unlawful exercise of power somehow becomes lawful just because the actor acted in good faith. In its examination of the judgment this note will start by providing a background overview of section 40(1)(b) of the CPA and the manner in which the section has been interpreted and applied. This will be followed by the facts of Motabatshindi in so far as they are relevant to the discussion. Thereafter, the judgment will be discussed in detail and critiqued against existing precedent.