A recent judgment from the Western Cape High Court in Zilwa v MEC for Transport & Public Works and Another was heard by Acting Judge Andrews, wherein the Plaintiff, a practising attorney, was arrested without a warrant by a provincial traffic officer after an Average Speed Over Distance (ASOD) camera system recorded his vehicle travelling at 188 km/h in a 120 km/h zone. The system indicated that “no admission of guilt” fine could be issued for this speed. The traffic officer, believing this notification obliged him to effect an arrest, detained the Plaintiff and handed him over to SAPS, where he was detained for several hours before being released. The charge was later withdrawn.
The Plaintiff instituted two claims against both Defendants:
Claim A: Unlawful Arrest and Detention.
Claim B: Malicious Prosecution.
The court found in favour of the Plaintiff on Claim A (Unlawful Arrest and Detention) but dismissed Claim B (Malicious Prosecution).
- Unlawful Arrest
The First Defendant sought to justify the arrest under Section 40(1)(b) of the Criminal Procedure Act (CPA), which permits a peace officer to arrest, without a warrant, any person whom they reasonably suspect of having committed a Schedule 1 offence.
The court was unequivocal: exceeding the speed limit, even by a significant margin, is not a Schedule 1 offence. Consequently, the fundamental jurisdictional requirement for a lawful arrest under this section was not met.
- “No Admission of Guilt” Is Not an Instruction to Arrest
The court decisively rejected the notion that the “no admission of guilt” notification from the ASOD system or the related Offence Code Book authorises an arrest.
- Neither the National Road Traffic Act nor its accompanying Code Book confers a power of arrest.
- A notification that no admission of guilt fine may be determined is not an instruction to arrest.
- A traffic officer cannot assume the function of a court in determining punishment.
- Discretion in Arrests
The judgment reinforces that arrest is discretionary and must be a last resort. In this matter, the arresting officer failed to exercise discretion, acting under the mistaken belief that arrest was mandatory.
- Unlawful Detention
The Minister of Police was held liable for the subsequent detention. SAPS members have an independent duty to assess the lawfulness of an arrest and may not act dogmatically on another officer’s instructions.
5. Malicious Prosecution
The malicious prosecution claim failed due to the absence of animus injuriandi. A mistaken but honest belief in the lawfulness of the arrest negated malice.
In short: speeding, even at an extreme level, does not justify an arrest under Section 40 of the CPA, and both traffic officers and SAPS must independently apply their minds before depriving a person of liberty.
Written by Jarryd Hardam