, 1. Jurisdiction and the Decision of the NDPP
The decision by the National Director of Public Prosecutions (NDPP) that A should first appear and
be tried in the Supreme Court of Appeal (SCA) is legally untenable and constitutionally flawed. In
terms of section 166 of the Constitution of the Republic of South Africa, 1996, the SCA is an
appellate court and does not possess original trial jurisdiction. Its function is to hear appeals from
the High Courts and other courts of similar status, except in matters falling within the exclusive
jurisdiction of the Constitutional Court (Constitution of the Republic of South Africa, 1996, s 166).
Criminal trials of serious offences are ordinarily conducted in the High Court with territorial
jurisdiction over the area where the offence was committed. Since the alleged offences occurred in
Cape Town, jurisdiction would ordinarily vest in the Western Cape Division of the High Court,
irrespective of the fact that A was arrested in Pretoria. Section 35(3) of the Constitution further
guarantees the accused the right to a fair trial before an ordinary court established by law. The
NDPP does not have the authority to confer jurisdiction on a court that lacks it, as prosecutorial
discretion does not extend to altering the constitutional structure of the judiciary. Therefore,
directing that A appear in the SCA for trial would be ultra vires and procedurally invalid. The
appropriate course would be to institute proceedings in the High Court with jurisdiction over Cape
Town in accordance with the Criminal Procedure Act 51 of 1977.
2. Lawfulness and Necessity of Arrest
A’s argument that his arrest was unlawful because it was “not necessary” and that a summons
should have been used must be assessed in light of section 40(1)(b) of the Criminal Procedure Act
51 of 1977, which permits a peace officer to arrest without a warrant any person reasonably
suspected of having committed a Schedule 1 offence. In Minister of Safety and Security v Sekhoto
2011 (5) SA 367 (SCA), the court clarified that once the jurisdictional facts for a lawful arrest under
section 40(1)(b) are present—namely that the arrestor is a peace officer, that the officer entertains
a reasonable suspicion, and that the suspicion relates to a Schedule 1 offence—the arrest is lawful.
The court rejected the argument that arrest is justified only if it is the “least drastic” method of
securing attendance in court. Similarly, in Duncan v Minister of Law and Order 1986 (2) SA 805 (A),
the Appellate Division confirmed that the existence of reasonable suspicion is the primary
requirement for a lawful arrest. Therefore, the mere availability of a summons as an alternative
does not automatically render an arrest unlawful. However, arrest remains subject to constitutional
scrutiny under section 12(1)(a) of the Constitution, which protects against arbitrary deprivation of
freedom. If Sergeant D exercised the power to arrest improperly or without reasonable suspicion,
the arrest could be unlawful. Absent such proof, A’s claim that arrest was “not necessary” is
unlikely to succeed, as necessity is not a standalone requirement once statutory jurisdictional facts
are satisfied.
The decision by the National Director of Public Prosecutions (NDPP) that A should first appear and
be tried in the Supreme Court of Appeal (SCA) is legally untenable and constitutionally flawed. In
terms of section 166 of the Constitution of the Republic of South Africa, 1996, the SCA is an
appellate court and does not possess original trial jurisdiction. Its function is to hear appeals from
the High Courts and other courts of similar status, except in matters falling within the exclusive
jurisdiction of the Constitutional Court (Constitution of the Republic of South Africa, 1996, s 166).
Criminal trials of serious offences are ordinarily conducted in the High Court with territorial
jurisdiction over the area where the offence was committed. Since the alleged offences occurred in
Cape Town, jurisdiction would ordinarily vest in the Western Cape Division of the High Court,
irrespective of the fact that A was arrested in Pretoria. Section 35(3) of the Constitution further
guarantees the accused the right to a fair trial before an ordinary court established by law. The
NDPP does not have the authority to confer jurisdiction on a court that lacks it, as prosecutorial
discretion does not extend to altering the constitutional structure of the judiciary. Therefore,
directing that A appear in the SCA for trial would be ultra vires and procedurally invalid. The
appropriate course would be to institute proceedings in the High Court with jurisdiction over Cape
Town in accordance with the Criminal Procedure Act 51 of 1977.
2. Lawfulness and Necessity of Arrest
A’s argument that his arrest was unlawful because it was “not necessary” and that a summons
should have been used must be assessed in light of section 40(1)(b) of the Criminal Procedure Act
51 of 1977, which permits a peace officer to arrest without a warrant any person reasonably
suspected of having committed a Schedule 1 offence. In Minister of Safety and Security v Sekhoto
2011 (5) SA 367 (SCA), the court clarified that once the jurisdictional facts for a lawful arrest under
section 40(1)(b) are present—namely that the arrestor is a peace officer, that the officer entertains
a reasonable suspicion, and that the suspicion relates to a Schedule 1 offence—the arrest is lawful.
The court rejected the argument that arrest is justified only if it is the “least drastic” method of
securing attendance in court. Similarly, in Duncan v Minister of Law and Order 1986 (2) SA 805 (A),
the Appellate Division confirmed that the existence of reasonable suspicion is the primary
requirement for a lawful arrest. Therefore, the mere availability of a summons as an alternative
does not automatically render an arrest unlawful. However, arrest remains subject to constitutional
scrutiny under section 12(1)(a) of the Constitution, which protects against arbitrary deprivation of
freedom. If Sergeant D exercised the power to arrest improperly or without reasonable suspicion,
the arrest could be unlawful. Absent such proof, A’s claim that arrest was “not necessary” is
unlikely to succeed, as necessity is not a standalone requirement once statutory jurisdictional facts
are satisfied.
