Section 40(1)(A) of the criminal procedure act 51 of 1977 does not cover an arrest for a non-existent offence
FRITZ V MINISTER FOR SAFETY AND SECURITY 2012 (2) SACR 451 (ECG)
Mr Fritz (the plaintiff [Afrikaans: “eiser”]) sued the Minister for Safety and Security (currently the Minister of Police) (the defendant [Afrikaans: “verweerder”]) in the magistrates’ court in Port Elizabeth under the following claims ?
Claim 1: Wrongful arrest and detention Claim 2: Unlawful search.
However, at the conclusion of hearing evidence in this civil action, the magistrate granted an order of absolution from the instance with costs*.
Not satisfied with this order, Fritz lodged an appeal against it before the High Court in Grahamstown.
The facts of this matter, as accepted by the court of appeal, were that W/O Riaan Tessner arrested Fritz at about 02:00 in the morning, together with other young men, at the corner of Rensburg and Lawrence Erasmus Streets, Ext 32, Bloemendal, in Port Elizabeth on a charge of riotous behaviour (Afrikaans: “oproerige gedrag”). W/O Tessner and his colleague, W/O Killian, then took the arrested young men to the police station where W/O Tessner in particular charged Fritz with contravening section 11(c) of Act 102 of 1982, namely riotous behaviour, and then detained him (see paragraphs  and  of the judgment by the court of appeal).
Article source: http://www.servamus.co.za/index.php/pollex/april-2013