Abstract

The Constitutional Court has had the last word on the argument that had raged before the high courts in the last decade, but which was rejected by the Supreme Court of Appeal half a decade ago in Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA), to the effect that the Bill of Rights is not a ffth jurisdictional fact to the requirements of s 40(1)(b) of the Criminal Procedure Act 51 of 1977. Rather than being an additional urisdictional fact, the Constitutional Court has held in MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (MR), that a police offcer faced with the exercise of the discretion to arrest a child must not only balance the conflicting interests, but must take into consideration the constitutional requirements of the best interests of the child and the limitation regarding the detention of a child in s 28(2) and 28(1)(g) of the 1996 Constitution. Failure on the part of the police to bring these constitutional protections afforded the child to bear on the decision to arrest or not to arrest, renders such a decision unlawful and unconstitutional. While the search for a fifth jurisdictional fact may have ended at this juncture, the Constitutional Court judgment in MR marks the beginning of the infusion of s 28(2) and 28(1)(g) of the Bill of Rights into the exercise of the discretion to arrest and detain a child in the circumstances of s 40(1) of the CPA.