James Grant

This is advice I had to give to someone in the middle of an especially dark night in a police station where the law meant nothing and the mention of it was treated with contempt. That night both the victim and I walked out of the station alive. This should be your singular purpose if you are ever arrested.

The police had nearly killed the victim when they arrested him for refusing to be searched – and for making the fatal mistake of saying that he knew his rights. I fear what would have happened if he had to spend the night in the cells.

It is necessary to note that the legal position relating to arrest is unaffected by COVID-19 regulations. The Disaster Management Act does not suspend or restrict any right in the Constitution – all of which has been given expression to under the Criminal Procedure Act (51 of 1977 – the “CPA”) as interpreted by our Courts. This could be different if a state of emergency was or is declared (see section 37 of the Constitution). But no state of emergency has been declared – so that ordinary rights and laws regarding arrests prevail.

Police are entitled to effect an arrest only to secure the attendance of an accused person at his or her trial. It might come as a surprise to many, but it will almost certainly come as a surprise to most members of the police, that the job of a police officer does not put them in contact with criminals. Their job is to deal with suspects – not criminals. If one is tempted to think this away as a distraction, realise that you would have to think away the entire system of adjudication according to law – you would have to think away the courts. This might even seem attractive until you realise that you could be the one who somehow comes into contact with a police officer who has judged you already and is determined to punish you.

Police powers of arrest are set out in section 40, 43 & 44 of the Criminal Procedure Act (51 of 1977). Sections 43 and 44 relate to arrests under a warrant.

43  Warrant of arrest may be issued by magistrate or justice

(1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police-

   (a)   which sets out the offence alleged to have been committed;

   (b)   which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and

   (c)   which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.

(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.

(3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.

44  Execution of warrants

A warrant of arrest issued under any provision of this Act may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof.

These are issued after a Magistrate or Justice has applied his or her mind – and do not concern the abuse of police discretion – and are not relevant here. Section 40 provides for the arrest of a person without a warrant.

40  Arrest by peace officer without warrant

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

   (a)   who commits or attempts to commit any offence in his presence;

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

   (c)   who has escaped or who attempts to escape from lawful custody;

   (d)   who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer;

[Para. (d) substituted by s. 41 of Act 129 of 1993 (wef 1 September 1993).]

   (e)   who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;

   (f)   who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;

   (g)   who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

   (h)   who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition;

   (i)   who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance;

   (j)   who wilfully obstructs him in the execution of his duty;

   (k)   who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic;

   (l)   who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic;

   (m)   who is reasonably suspected of being a deserter from the South African National Defence Force;

[Para. (m) amended by s. 4 of Act 18 of 1996 (wef 1 April 1997).]

   (n)   who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act;

   (o)   who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act;

   (p)   who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons;

   (q)   who is reasonably suspected of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element.

Schedule 1 includes:

Treason.

Sedition.

Public violence.

Murder.

Culpable homicide.

Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

Trafficking in persons as provided for in section 4 and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.

Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

Robbery.

Kidnapping.

Childstealing.

Assault, when a dangerous wound is inflicted.

Arson.

Malicious injury to property.

Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.

Theft, whether under the common law or a statutory provision.

Receiving stolen property knowing it to have been stolen.

Fraud.

Forgery or uttering a forged document knowing it to have been forged.

Offences relating to the coinage.

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.

Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody.

Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.

Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

It is important to understand, from this, what it is that a police officer may arrest one for and what an officer may not arrest one for. It may be helpful to bear in mind – in addition to the list – what may well be considered the outer limits of the offences for which an arrest may be effected. This may be found in the schedule, as follows:

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.

Instances where an officer may not effect and arrest must include where a person refuses to pay a bribe or to buy a coke for an officer. In addition, an officer may not arrest one for saying that one knows one’s rights – although this is almost certain to result in one’s arrest. One may not be arrested for refusing to allow an officer to search you. One may also not be arrested for failing or refuse to explain your circumstances – with the exception of circumstances where one is reasonably suspected of being in possession of property which is stolen (s 36 of the General Law Amendment Act).

Of course, if the officer has reasonable grounds on which to search you – under the appropriate law of search and seizure – the officer may then use force to effect the search – but he may not arrest you in order to search you. He may also not arrest you for interfering with him in his duty – s/he is not authorised to arrest you in these circumstances but to use force to effect the search.

27  Resistance against entry or search

(1) A police official who may lawfully search any person or any premises or who may enter any premises under section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.

(2) The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.

Some practical advice – in case you are arrested: record everything. Ideally record both video and audio of everything that is said and done. To this end – for arrests from a vehicle – investing in a dashcam that will remain on – even if just to record audio for some 10 minutes after the ignition is switched off. Switch your cell phone on to record – in fact – make sure that it is set up to record easily with the press of a shortcut or a few keys. As soon as possible upload the recordings to the web.

Move slowly if you need to retrieve anything – and explain what you are doing if you reach for anything.

Note the names and force numbers of the relevant officers – even if you only get the name of one – this can lead to the rest. Similarly for the vehicles that the officers are driving. What kind of car, what colour? Number plates are first prize – after names and force numbers of the relevant officers.

Set your phone to send an emergency alert from the moment you realise you are about to have an encounter with the police. Let the message read that you about to have an encounter with the police and that if you do not send a “cancellation” message within, say, 10 minutes, your contacts should come looking for you. The cell phone app “Glymse” offers an amazing service that sends one’s position for a limited period – which one may customize.

Be polite – even if outrage is appropriate. Regrettably, the message is that you must shut up and suck-it-up even if you are in the right so that you can live to fight another day – in the cold light of day in a place where the law matters.

If you are arrested call your family and friends and tell them to go to the relevant police station. To the family and friends of anyone who is arrested, go immediately to the police station. Let the police know that you are there for a particular person. Insist on visiting with the detainee. Section 35(2)(f) of the Constitution provides:

Everyone who is detained, including every sentenced prisoner, has the right-

to communicate with, and be visited by, that person’s-

(i) spouse or partner;

(ii) next of kin;

(iii) chosen religious counsellor; and

(iv) chosen medical practitioner.

Take note and – ideally – take photos of any injuries. Take the detainee food and something to drink. Set up a vigil at the station or visit regularly at arbitrary times – until the first appearance in court. This must be 48 hours from arrest – or if the 48 hours expires on a non-court day,**** then by the end of the first court day**** (usually a Monday).

There are good officers and bad officers. I am shocked at the prevalence of bad officers and the brazen disregard for law that has informed the tone of this discussion. There are good officers out there – perhaps even the majority of officers. My job doesn’t bring me into contact with many good officers. What I can say is that you should make no mistake, there are many bad officers out there and if you say or do something which – although perfectly legitimate – the officer considers somehow wrong, you could be in mortal danger.

Something that is often not appreciated is that when a police officer arrests you unlawfully or uses excessive force in effecting an arrest, it is not only the crime of assault which is inevitably committed, but – to the extent to which the officer foresees the possibility that s/he may not be entitled to arrest you in the circumstances – the crime of kidnapping is also committed. Kidnapping is committed where a person – any person – interferes with the freedom of movement of another – intentionally and unlawfully.

The importance of this is that unlike, for instance, an assault which took place upon arrest, where any other officer becomes aware of the assault afterwards, that other officer does not become a party to the assault. The critical difference with kidnapping is that so long as it endures – that is, the unlawful interference with one’s freedom of movement – any officer who becomes a party to the continued interference with one’s freedom of movement, and who foresees that the detention may not be lawful, him/herself commits kidnapping – by common purpose. One may expect that an officer may avoid this liability by simply refusing to acquaint him/herself with the true position in respect of anyone brought to the station under arrest. For some in lower ranks, perhaps this may work. However, for any officer in any sort of authority, there is a legal obligation to ensure that those who are held in detention are lawfully in detention and their continued detention can be justified. Willful ignorance on the part of any of these officers in authority is a well-recognised form of intention in our law. In R v Myers 1948 (1) SA 375 (AD) Greenberg JA adopted the following passage from Haisbury in which he stated that a belief is not honest where it is the result of:

“a wilful abstention from all sources of information which might lead to suspicion, and a sedulous avoidance of all possible avenues to the truth, for the express purpose of not having any doubt thrown on what he desires and is determined to, and afterwards does (in a sense) believe.”

In the result, both the arresting officers and anyone who came to suspect – even by wilful ignorance – that a detention is unlawful, commits kidnapping.

In conclusion, if you become another victim of the abuse of authority, be polite, quiet, record everything, communicate your predicament, but make sure you live to fight another day.

Remember it is not all for nothing. You will have your day and on that day, not only must you require that your assailants are charged with assault, but that the arresting officers and everyone at the station who should have protected you, are charged with kidnapping.

James Grant

Original 8 January 2018

Updated 25 May 2020

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