By Arno Kruger
Many South Africans are uncertain about their rights when interacting with police or traffic officials. These encounters can be stressful, especially when an alleged offence is committed. There is a common assumption that an arrest or detention is automatically justified simply because an officer carries it out. In reality, this assumption is incorrect. Unlawful arrests and detentions continue to occur and remain a serious concern, affecting motorists and the public.
On 9 January 2026, the Western Cape High Court clarified these issues in Zilwa v MEC for the Department of Transport and Public Works and Another[1]. The Court confirmed that exceeding the speed limit is not a Schedule 1 offence in terms of the Criminal Procedure Act (CPA)[2], meaning a warrantless arrest for this reason alone is unlawful. The judgment emphasized that officers must exercise proper discretion before arresting or detaining a person and that any detention following an unlawful arrest is also unlawful.
The Issue Before the Court
The central question before the Court was whether law enforcement officials acted within their legal authority when arresting and detaining a motorist for allegedly exceeding the speed limit.
The Court considered two issues –
- Whether an officer could lawfully arrest a person without a warrant for exceeding the speed limit, which is not listed as a Schedule 1 offence; and
- Whether the police lawfully exercised their discretion in detaining the individual after the arrest.
Background to the Case
Mr. Zilwa, a motorist, was stopped, arrested and detained for allegedly exceeding the speed limit. On 28 March 2019, a traffic officer received an alert from an Average Speed Over Distance (ASOD) system indicating that Mr. Zilwa’s vehicle had exceeded the speed limit.
No “admission of guilt” fine had been determined for the offence on the ASOD system, meaning Mr. Zilwa could not simply pay a fine and avoid appearing in Court. In terms of the National Road Traffic Act (NRTA)[3], certain minor speeding offences can sometimes be resolved through the payment of such fines without appearing in Court.
Because no fine applied in this instance, the traffic officer believed that he had no choice but to arrest Mr. Zilwa. Mr. Zilwa was accordingly arrested and accompanied to the police station.
At the station, he was handed over to the police, who registered the arrest, detained him in a holding cell and later released him on warning in terms of section 72 of the CPA.
The traffic officials relied on the ASOD system, the Offence Code Book issued in terms of section 59(4)(b) of the NRTA and section 40 of the CPA, claiming the absence of an admission of guilt fine justified the arrest. The police, in turn, relied on standard protocol, maintaining they had no discretion to detain or not.
Mr. Zilwa challenged the lawfulness of both the arrest and his detention contending that the alleged offence is not a Schedule 1 offence, and that the officers had no lawful authority to arrest or detain him.
What the Court Decided
The Court ruled in favour of Mr. Zilwa, finding that both his arrest and subsequent detention were unlawful.
It held that exceeding the speed limit, when no “admission of guilt” fine had been set, does not give a traffic officer the authority to arrest without a warrant. The offence is not a Schedule 1 offence in terms of the CPA, meaning it is not considered serious enough to justify a warrantless arrest. Arrest should always be a last resort.
The Court further found that both the traffic officer and the police failed to properly exercise their discretion. The traffic officer believed he had no option but to arrest, while the police assumed they were obliged to detain him once he was brought to the station. The Court held that this rigid approach was incorrect. Officers must consider the lawfulness, necessity and proportionality of any arrest or detention.
The Court confirmed that an unlawful arrest cannot be justified later, and any detention following it is also unlawful.
The Court’s Reasoning
1. Powers of Arrest and Schedule 1 Requirement
Section 40(1)(b) of the CPA allows a peace officer to arrest a person without a warrant only where certain jurisdictional factors exist, including a reasonable suspicion that the suspect committed a Schedule 1 offence. These offences are generally serious crimes for which imprisonment may be imposed without the option of a fine.
The Court held that exceeding the speed limit under the NRTA is not a Schedule 1 offence. Although speeding may attract penalties, it is ordinarily punishable by a fine and the ultimate penalty is determined by the Court. As a result, a warrantless arrest for speeding cannot be justified under section 40(1)(b).
In Mr. Zilwa’s matter, the traffic officer relied solely on an alert from an ASOD system indicating that his vehicle had exceeded the speed limit and that no “admission of guilt” fine had been determined. The Court held that this alone was insufficient to establish reasonable suspicion and therefore did not provide a lawful basis for arrest.
2. The Traffic Offence Code Book[4]
The traffic officer relied on the Traffic Offence Code Book, which records whether an “admission of guilt” fine is available. The Court clarified that the Code Book does not authorise arrests. It merely indicates whether a fine may be paid without appearing in Court.
The officer incorrectly interpreted the absence of an admission of guilt fine to mean that arrest was required. The Court held that this interpretation was wrong. There is no other statute in South Africa that authorises arrest apart from the CPA. Acting solely on the Code Book therefore rendered the arrest unlawful.
3. Discretion to Arrest and Detain
Even where the jurisdictional requirements for arrest under section 40(1)(b) of the CPA are met, a peace officer must still exercise discretion. Arrest is a serious intrusion on personal liberty and should generally be used only when less restrictive measures, such as warnings, written notices or summons, will not secure a person’s attendance in Court.
The Court found that the traffic officer failed to exercise discretion, arresting Mr. Zilwa without considering lawful alternatives. Similarly, the police who received Mr. Zilwa at the station assumed they were obliged to detain him once he had been arrested.
The Court held that this approach was incorrect. Police must independently consider whether detention is lawful and necessary.
Under section 50 of the CPA, police may refuse to accept an arrested person if the arrest is unlawful. Even when an arrest is admitted, discretion to detain must be exercised. Applying these principles, and with reference to the Supreme Court of Appeal decision in Diljan v Minister of Police[5], the Court concluded that because Mr. Zilwa’s arrest was unlawful and the police failed to exercise discretion, the detention was likewise unlawful.
Why This Judgment Is Important
This judgment clarifies when a person may lawfully be arrested without a warrant. The High Court confirmed that section 40(1)(b) of the CPA permits warrantless arrests only where a Schedule 1 offence is reasonably suspected. Speeding, while still unlawful, is not such an offence. Accordingly, a person cannot lawfully be arrested solely for speeding.
However, an important distinction remains. In certain circumstances, excessive speed may amount to reckless or negligent driving if the driver’s conduct imposes a real danger to others. In such instances, more serious charges may arise and arrest may be justified.
For the public, the judgment reinforces that arrest and detention without lawful authority are violations of constitutional rights and may give rise to claims for damages against organs of state.
Ultimately, the judgment reinforces that arrest and detention are serious intrusions on personal liberty and must be exercised lawfully, proportionately and with proper discretion.
We often assist and advise clients in pursuing claims for unlawful arrest and detention. In the event you have been arrested and/or detained, remain calm and inform the officials that you have the right to contact your attorney and to be treated with dignity. It is crucial to seek legal advice immediately if you believe the arrest or detention was unlawful. Our team can assess your matter, guide you through available remedies and help protect your rights. Acting promptly ensures the best chance of a successful outcome.
[1] Zilwa v Member of the Executive Council for the Department of Transport and Public Works and Another (18320/2019) [2026] ZAWCHC 4 (9 January 2026).
[2] Act 51 of 1977.
[3] Act 93 of 1996.
[4] Traffic Law Enforcement Offence Code, Western Cape, NRTA 93/96, NLTA 5/2009, NRTR 2000.
[5] (746/2021) [2022] ZASCA 103 (24 June 2022).