Reckless Ignorance of Law

Posted: 24th May 2020 by James Grant in COVID, COVID-19, Criminal Law, Regulations, Virus
Tags: , ,

Minister Cele seems to be getting the law frightfully wrong. He is reported as saying that a person found in possession of cigarettes will be required to produce a purchase slip.

No person may be compelled to given an explanation to a police officer as to any circumstance in which she or he is found without infringing that person’s right to silence.

There exists in our law two possible exceptions to this rule. The one is that a police officer may require a reasonable explanation where there is a reasonable suspicion that items in a person’s possession are stolen (s 36 of the General Law Amendment Act).

Another exists – perhaps not at the instance of a police officer – but at the instance of the machinery of the state (both the police and prosecution) – who are entitled to being advised of an alibi defence in advance of a criminal trial (see Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August 2003)).

Otherwise an officer may not compel a person to disclose a defence available to that person and she or he is under no obligation to prove to the satisfaction of a police officer anything as to the legitimacy of his or her situation.

A police official may also not arrest a person for suspected contravention of any COVID regulation – unless the offence is committed in the officer’s presence (s 40(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA)). It is also arguable that given the relative triviality of these offences – in the domain of traffic offences (given the permitted penalty – see below)) – it would be an abuse to arrest a person when one weighs the gravity of the infringement on personal liberty versus the risk that a person will not pay an admission of guilt fine or present him/herself for trial.

As regards arrest – and speaking only of instances where an officer does not witness a suspected offence, but is able only to form a reasonable suspicion that a suspect has committed an offence – an officer may only arrest this person if the officer forms a reasonable suspicion that an offence has been committed and that it is a schedule 1 offence:

Section 40(1)(b) of the CPA provides:

40  Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person-

   (a)   …

   (b)   whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody …

Section 40(1)(b) of CPA

The question therefore arises whether contravention of a COVID regulation qualifies as a schedule 1 offence. The answer is that it does not and so one may not be arrested for a suspected COVID regulation offence not committed in the presence of an officer, even if the officer forms a reasonable suspicion of such an infringement.

Schedule one makes no reference to the Disaster Management Act, and provides only, as a catch all, that an offence is a schedule 1 offence if it may attract a sentence of imprisonment of more than 6 months imprisonment.

Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine.

Extract from Schedule 1 of the CPA

The Disaster Management Act (DMA) permits only for penalties for contraventions of regulations of only less than 6 months imprisonment:

The Minister may, in terms of subsection (1), prescribe a penalty of
imprisonment for a period not exceeding six months or a fine for any contravention of, or failure to comply with, a regulation.

Section 59(3) of the DMA.

So, since “not exceeding six months” is less than is required under schedule 1 (“exceeding six months”), a contravention of the COVID regulations is not a schedule 1 offence and one may not be arrested on the mere reasonable suspicion of having committed such an offence.

In addition, one may not be arrested for failing or indeed refusing to give an explanation as to how one came into possession of cigarettes.

Should any of these lines be crossed and an arrest affected, the officers doing so, and any person on whose instructions they act, may be liable to a damages claim. More importantly, and perhaps this might make some errant officers and ministers pay closer attention: any officer doing so, and any person on whose instructions they act, may make themselves guilty of kidnapping.

James Grant

24 May 2020

Comments are closed.