- Arresting a motorist for speeding without a warrant was declared unlawful, with damages awarded for unlawful arrest and detention.
- The Court confirmed that speeding is not a Schedule 1 offence and does not meet the statutory threshold for warrantless arrest under the CPA.
- The malicious prosecution claim failed, as no malice or improper motive by officials or prosecutors was established.
Arresting a motorist for speeding without a warrant is unlawful and unconstitutional, the Western Cape High Court has held, confirming that exceeding the speed limit does not justify deprivation of liberty under the Criminal Procedure Act.
The ruling was delivered on 9 January 2026 in Zilwa v Member of the Executive Council for the Department of Transport and Public Works and Another. The court found that the arrest and subsequent detention of Hymie Zilwa were unlawful, but dismissed his claim for malicious prosecution.
What led to the arrest and detention
Zilwa, a practising attorney, was travelling in convoy from Bloemfontein to Cape Town when his vehicle was identified by a speed detection system. According to the arresting traffic officer, a Mr Gertse, “the information revealed that a white Mercedes-Benz was driving at a speed of 188km/h, which is in excess of the speed limit of 120km/h.”
Zilwa was stopped on the road, informed of the alleged speeding offence, and escorted to a police station, where he was detained. He testified that he was not shown a warrant of arrest and was not informed of his constitutional rights before being deprived of his liberty. Although he was later prosecuted, the charge was ultimately withdrawn.
Following the withdrawal of the charge, Zilwa instituted civil proceedings, seeking damages for unlawful arrest, unlawful detention and malicious prosecution.
No legal basis for warrantless arrest
The central question before the court was whether the arrest could be justified under section 40(1)(b) of the Criminal Procedure Act, which permits warrantless arrest only for offences listed in Schedule 1.
Acting Judge P Andrews rejected the argument that the seriousness of the alleged speed could extend the scope of the statute. “The offence of exceeding the speed limit is not a Schedule 1 offence and, therefore, the Plaintiff ought not to have been arrested,” the court held.
The judgment made it clear that traffic officers and police officers are bound by the same statutory limits, stating that “ordinarily, a speeding offence under the National Road Traffic Act is not an offence listed in Schedule 1 and thus does not meet this jurisdictional threshold.”
In reinforcing the constitutional framework, the court warned that “any act performed by [the officer] without a lawful source could be interpreted as contravening the rule of law and the supremacy of the Constitution, thus rendering the arrest of the Plaintiff unlawful.”
Detention also ruled unlawful
The court further found that Zilwa’s detention at the police station was unlawful, stressing that an arrest does not automatically justify continued detention.
“A member of the South African Police Services can refuse to accept a person in terms of Section 50 of the CPA if he or she is satisfied that the person did not commit the offence and that the arrest is unlawful,” Judge Andrews stated.
The judgment emphasised that this discretion must be actively exercised. “A failure to exercise this discretion, as in the case of an arrest, renders the detention unlawful,” the court held.
Malicious prosecution claim dismissed
While Zilwa succeeded in proving unlawful arrest and detention, the court dismissed his claim for malicious prosecution. Judge Andrews reiterated that malicious prosecution requires proof of malice, improper motive and the absence of reasonable and probable cause.
“Mere negligence or error of judgment does not suffice to meet the threshold of malicious prosecution,” the Court explained. It concluded that “the plaintiff has not succeeded in proving reasonable and probable cause in respect of both the First and Second Defendants to the extent that it satisfies the aforementioned considerations.”
Why the judgment matters
Judge Andrews cautioned, “an arrest is a drastic measure that invades a personal liberty, and it must be justifiable according to the demands of the Bill of Rights.”
The court granted judgment in favour of Zilwa for damages arising from his unlawful arrest and detention, together with costs. The special plea of non-joinder was dismissed, and the malicious prosecution claim was dismissed with costs. The “trial on quantum” was postponed sine die.
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