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Category: Criminal Law

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

This article focuses on primarily whether the police may search a person without a warrant of arrest. On the face of it, it would appear that the search and seizure of a person and premises are in contravention with the Bill of Rights, more specifically section 14 of the Constitution of the Republic of South Africa.

With the enactment of the Constitution, there have been a number of constraints on search and seizure powers by police officials. Section 14(a) of the Constitution specifically protects the right not to have a person or their home searched. A person’s home, it is widely accepted, constitutes the highest expectation of privacy. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Criminal Procedure Act allows the police to search any person or any container or premise of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

What this essentially means is that a police officer can search you personally or can search your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.

According to the relevant case law, a police officer must have a reasonable suspicion that a person committed an offence or that a person is in possession of an article used or to be used in the commission of an offence. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because of your appearance, he or she will not be able to merely argue that there is a reasonable suspicion that you committed an offence or are in possession of an article used in the commission of an offence and, hence, will not be entitled to search you.

In terms of the South African Police Act 68 of 1995 the National or Provincial Commissioner may where it is reasonable in the circumstances in order to exercise a power or to perform a function of the service, authorise in writing a member under his command to set up roadblocks on any public road. Any member of the South African Police Service may, without a warrant, search any vehicle at such a roadblock. However, such a search without a warrant in a roadblock may only be conducted upon the written authorisation by the National or Provincial Commissioner of the South African Police Service.

It is of paramount importance that a police official exercise his or her discretion in conducting a search without a warrant carefully and does not infringe a person’s right to privacy as entrenched in section 14 of the Constitution. It is also important to note that a search and seizure by a police official must be reasonable and justifiable in terms of the Constitution.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

  • The Criminal Procedure Act 57 of 1977
  • The South African Police Service Act 68 of 1995
  • The Constitution of the Republic of South Africa,1996
  • Geldenhuys T,The Criminal Procedure Handbook, Juta, August 2010
CONFLICTING STATEMENTS IN COURT

CONFLICTING STATEMENTS IN COURT

With the number of videos being leaked on social media, regarding situations of assault, defamation and hate speech, it becomes that much easier for the defendant to be found guilty of such a crime as the proof is right there. The challenge comes with hearsay of contradictory statements, and the judge will then have to reach a decision based on probabilities of both the plaintiff and the defendant.

Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017)

In this case law, the plaintiff instituted an action for damages against the defendant, Minister of Police, for injuries sustained when he was allegedly assaulted by members of the South African Police Service (SAPS). He testified that the SAPS employees held him and assaulted him with fists and open hands. Upon trying to cover his face, he was accused of resisting arrest and was tackled to the ground. His bodily injuries were: a fracture of the right leg, various other soft tissue injuries, bruises and abrasions.

The assault was denied by the defendant, indicating that it was, in fact, the plaintiff, allegedly inebriated at the time, who assaulted the SAPS employees. When the plaintiff called out a police officer’s name, and the officer he thought he was calling did not respond, he began swearing at the officers who were sitting in a Kombi. The defendant also pleads that the injuries sustained by the plaintiff were caused by his fall while running away from the employees after he swore at them.

In the court, three witnesses testified in support of the plaintiff, and two testifies on behalf of the defendant. One of the plaintiff’s witnesses failed to add to their statement that the plaintiff was tackled to the ground, and the omission of such an action raised inconsistency in the said witness’ testimony.

Reaching a conclusion

To come to a conclusion on the disputed issues, a court must make findings on:

  • the credibility of the various factual witnesses;
  • their reliability; and
  • the probabilities.

The Court will weigh up and test the plaintiff’s allegations against the general probabilities to determine whether the evidence is true or not. If the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true.

The main question is, what are the probabilities of the plaintiff and his witness omitting to mention the tackling in their statements to the police if this had occurred? The judge came to the conclusion that the defendant’s version is the most probable, and the plaintiff’s claim against the defendant is dismissed with costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Southern African Legal Information Institute. (2017). Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017). [online] Available at: http://saflii.org/za/cases/ZAECGHC/2017/122.html [Accessed 20 Nov. 2017].

WHAT HAPPENS AFTER SOMEONE IS ARRESTED FOR A CRIME?

WHAT HAPPENS AFTER SOMEONE IS ARRESTED FOR A CRIME?

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. Section 38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. Arrest;
  2. Summons;
  3. Written notice; and
  4. Indictment.

The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution.

When can a person be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

What rights does a person have when arrested?

If someone has, or is in the process of being arrested, they have the right to be informed of the charges on which they are being arrested. Most importantly, they have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against them in court.

  1. A person has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after being arrested.
  2. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

After an arrest a person will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search.

What rights does a person have when being detained?

When being detained, a person must be informed promptly of the reason.

  • The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
  • Be presumed innocent until proven guilty. 

Police bail and warning

For minor offences ’police bail’ can be granted or the police may release a detainee on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail.

After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference

http://www.daff.gov.za/doaDev/sideMenu/ForestryWeb/webapp/Documents/ForestFire/192.168.10.11/nvffa.nsf/4d2641997589c2e342256d72003e35fc/8ac6623a9dbe92ca42256ea700447f8302ec.html?OpenDocument

https://www.saps.gov.za/faqdetail.php?fid=8