Unlawful arrests and your rights
In South Africa, the process of making arrests is governed by the Criminal Procedure Act 51 of 1977 as amended (CPA), which outlines the legal framework for law enforcement officials when apprehending individuals suspected of committing crimes. This legislation ensures that arrests are carried out in a manner that upholds the rights of the accused, while also safeguarding public safety and maintaining order. The CPA sets clear guidelines on when and how an arrest may be made, the powers granted to police officers, and the procedures that must be followed to ensure the arrest is lawful. Understanding the principles enshrined in this Act is crucial for both legal professionals and the public, as it aims to balance the interests of justice with the protection of constitutional rights. Furthermore, an arrest can be made with or without a warrant, depending on the circumstances. In cases where a warrant is issued, law enforcement officials must present the warrant to the person being arrested unless the situation demands immediate action, such as in cases of fleeing suspects. An arrest without a warrant, however, is permitted under certain conditions, such as when a police officer has reasonable suspicion that a person has committed a crime, or if the person is caught in the act of committing an offence. The effect of an arrest, whether with or without a warrant, is that it temporarily deprives the individual of their liberty. Following an arrest, the arrested person must be informed of the reason for their detention, their right to remain silent, and their right to legal representation. The CPA mandates that an arrested individual must be brought before a court within 48 hours, ensuring that the arrest is subject to judicial oversight. This article investigates instances when arrests are affected with or without a warrant and what the recourse is for persons believing that they have been arrested unlawfully. To ensure the attendance of an accused at trial, South African law enforcement and the courts rely on various methods and documents. The primary tool is the summons, which is issued to the accused, informing them of the time and place of the trial. If the accused fails to attend court as required, a warrant of arrest can be issued by the court. In some cases, the accused may be required to post bail, which includes conditions that guarantee their attendance at trial. Additionally, written notices or guarantees from a third party may be used to further secure the accused’s appearance. A point-out note, issued by an investigating officer and given to a witness or complainant, would typically be issued in situations where a suspect or witness is asked to physically identify specific locations, objects, or people related to the case—often during the investigation phase, typically when the suspects whereabouts is not readily ascertainable. It is not a warrant and it serves as a record of the identification process and may be used as supporting evidence in trial, but it is not directly related to the process of ensuring trial attendance. Instead, the point-out note primarily documents an investigative action where the accused or a witness points out relevant crime scenes or items to the authorities. A point-out note gives any police official the authority to arrest a suspect when a witness or complainant hands the police official the point-out note. When a person has reason to believe that they have been unlawfully arrested they may approach the court and claim damages. The cause of action in respect of an unlawful arrest and detention is the actio iniuriarium. An arrest or detention is prima facie wrongful or lawful. It is not necessary to allege wrongfulness or unlawfulness. If the arrest took place with a warrant, on proof of the warrant, the onus would then shift to the plaintiff and the plaintiff will have to prove the wrongfulness of the arrest. An arrest without a warrant, (for example, by point-out note), must be justified by the defendant (Minister of Justice) and can be effected when there is a reasonable suspicion that a crime has been or is about to be committed in terms of schedule 1 offences. The defendant, in this instance, the Minister of Justice, must allege and prove the lawfulness of the arrest in terms of section 40 (1) (a) of the CPA. Reasonable suspicion refers to the belief or inference that a person has committed or is about to commit a crime, based on facts, circumstances, or observations that would lead a reasonable person to believe that the suspect is involved in criminal activity. This suspicion must be based on specific and objective facts, not just a vague or general feeling. It means that the officer has sufficient grounds—such as reliable information, physical evidence, or the conduct of the suspect—that justifies taking action, like making an arrest, without the need for a warrant. However, this suspicion must be more than a mere hunch or intuition; it must be grounded in tangible and reasonable evidence that would make an arrest justifiable. When arrests are effected without a warrant, based on an officer/investigating officer’s reasonable suspicion that a crime has been committed, it often leads to claims for wrongful arrest and detention. The courts have emphasised the importance of the factual and objective basis of reasonable suspicion, highlighting that while an officer’s belief or suspicion doesn’t need to meet the level of proof required for conviction, it still must be grounded in something concrete. It underscores the balance between protecting citizens’ rights and enabling police officers to act decisively to prevent crime. A person believing that they have been wrongfully arrested can institute a civil claim for damages suffered, which damages can include general damages for pain and suffering. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational
Fraud: Remedies available to defrauded parties
Fraud can be defined as the unlawful and intentional making of a representation that causes actual or potential prejudice to another. Parties often act on the strength of another’s representation in order to commit some or other act. Such an innocent party may have acted to their detriment if the representation was fraudulent. The innocent party has, broadly speaking, two remedies available to them. The innocent party could cancel an agreement if the representation led to them entering into a contract. The innocent party will then have to tender restitution. The innocent party can also claim damages from the fraudulent party. This article will briefly discuss the essential elements which must be proven to succeed with one of the remedies. It is a general requirement that a party who intends to rely on fraud in order to obtain some or other relief must not only plead it but must prove it “clearly and distinctly”. The plaintiff must accordingly prove fraud in terms of the ordinary civil onus, being above a balance of probabilities. A plaintiff wishing to rely on fraud must plead and prove the following essential elements: 1. There must first be a representation by the other party. This representation does not necessarily have to have been personally made but could also have been made by a party’s agent or representative. 2. The plaintiff must secondly allege and prove that the representation was fraudulent. The person making the representation, or their principal must have had knowledge that the representation was false. It is important to note that the plaintiff cannot merely allege that the representation was false as a mere false representation does not constitute fraud. The “mental element” must be alleged, which includes that the person making the representation or their principal’s intention led the innocent party to act on the strength of the representation. 3. The plaintiff must thirdly allege and prove a causal link (causation) between the representation and their action. In other words, the representation must have induced the innocent party to act. 4. Should the innocent party want to claim damages, they must allege that they have suffered damages. 5. Fraud is not necessarily committed by way of an express representation but can also be the result of a fraudulent non-disclosure. Should the innocent party wish to rely on such a non-disclosure, then they must set out the facts giving rise to the duty to disclose. The party must allege and prove that the duty to disclose was deliberately breached in order to deceive the innocent party. It is best to arrange a consultation with a dispute resolution attorney if you believe that you have suffered damages in any way due to another party’s false representation. Reference List: Amler’s Precedents of Pleadings 8th edition. 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)
Beyond reasonable doubt: What does it mean?
We have all seen the courtroom dramas where the accused are charged with criminal offences, and the State has to prove its case. Similarly, we are very familiar with the phrase, “beyond reasonable doubt”. But what does the phrase mean, and where does it fit in court cases? Background: In litigation, there is a distinction between civil litigation and criminal litigation. Civil litigation in its simplest form is a dispute between two parties, whether people or companies/institutions. The party instituting the action must prove his case. This duty is referred to as the burden of proof or onus. The burden of proof in civil litigation is that the party alleging an occurrence must prove it on a balance of probabilities. This essentially means that something occurred more likely than not. In criminal litigation, the State must prove its case against an accused regarding an alleged crime that was committed. Here the burden of proof is that the State must prove the accused’s guilt beyond a reasonable doubt. The State will execute its duty if it proves all elements of a particular crime beyond a reasonable doubt. What is beyond reasonable doubt? In the case of Woolmington v Director of Public Prosecutions,1 it was established that there rests no onus on the accused to prove their innocence. That burden lies on the State and at no stage is the stage relieved of this burden of proof. Proving a case beyond reasonable doubt includes the following: 2 The State must prove that the accused committed an unlawful act or omission (hereinafter, referred to as “active”, which may include an omission). This is whether an act is prohibited by common law or statute. Murder is a common law crime that we all ought to know is a prohibited act. If the offence is consequential in nature, the State must prove a causal link between the act and the result of such an act constituting the crime. If a person throws a brick and causes that person’s death, the act of throwing the brick would constitute a causal. Therefore, the State must prove that the accused threw the brick, which caused the victim’s death. The unlawfulness of the act must also be proven by the State insofar as there are no defences forming grounds for justification of the act. This would be, inter alia, a private defence necessity and consent. In the above example, depending on the circumstances and if all requirements are met, a person may be deemed to have acted in self-defence. If charged with a crime, he may be acquitted on the grounds that his prohibited actions were justified. The State must prove that the perpetrator is criminally liable by establishing fault. Fault is established by proving that the perpetrator either had the intention to act or was negligent. Whether intention or negligence must be proven is dependent on the alleged crime. If an accused is charged with murder, the State must prove that he had the intention (dolus) to cause the death of another. Considering the crime of culpable homicide, the State must only prove negligence. The exception to this rule is when mental illness is advanced as a defence. In this case, the burden of proof shifts to the accused and must prove on the balance of probabilities. Lastly, the State must prove guilt on the part of the accused. Considering proof of guilt beyond reasonable doubt, the court does not need certainty but rather a high degree of probability. Absolute certainty cannot be acquired. Therefore, proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. If the evidence against a man is so strong, leaving only the remote possibility in his favour, and if that remote possibility is possible but not in the least probable, the State has proven its case beyond a reasonable doubt. Why is the burden of proof of criminal matters heavier than civil matters? A well-known philosophical principle is that it is better to spare a guilty person than to make an innocent person suffer. Lastly, our Constitution affords every person the right to be presumed innocent. Reference List: L.E.A.D Criminal Court Practice 2020 Miller v Minister of Pensions [1947] 2 All E.R 372 at 373 Woolmington v Director of Public Prosecutions 1935 A.C. 462 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)
Defamation: What are the requirements?
The Bill of Rights as contained in the South African Constitution protects human dignity. Defamation violates a person’s dignity, and more specifically his or her reputation or fama. It thus follows that a person who is defamed must have legal recourse to protect and vindicate their constitutional right. A party who intends to claim for defamation must do so in terms of the common law rules and not rely directly on the Constitution. There are various requirements which must be met before one will succeed with a claim for defamation. These requirements are as follows: the statement must have been wrongful; the statement must have been intentional; the statement must have been published; and the statement must have been defamatory. A statement will be regarded as defamatory if, “in the opinion of the reasonable person, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation, or esteem in the community.”[1] A defamatory statement will thus be an insulting statement that negatively affects the way in which a person is seen by others. A statement will be regarded as having been published if it is made to a person other than the aggrieved plaintiff or his or her spouse. Publication is furthermore not limited to speech or print, as photographs, sketches, cartoons and caricatures can also be regarded as defamatory. It is important to keep in mind that publication only occurs once the addressee understands the defamatory nature of the statement.[2] The requirements of wrongfulness and intention shall be deemed to be present once a person has proven the publication of a defamatory statement. The court has stated in this regard that “[o]nce a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.”[3] There are certain defences available to a person against whom a claim for defamation has been instituted. These defences are aimed at rebutting the presence of one of the requirements listed above. A defendant will thus have to allege and prove that a statement was not defamatory in nature, or that it was not wrongful as the statement was reasonable and justifiable. There is a myriad of specific defences available to a defendant in a defamation case, which will be briefly considered. The first defence often raised by media houses when confronted with a defamation claim is that the published statement is true and publication thereof is in the public interest. A media house or journalist could also raise the related public-media privilege defence if it is established that the statement was in fact false. The defendant must in this instance allege and prove that he or she had reason to believe that the statement was true and that he or she took reasonable steps to verify its correctness, and that the publication was accordingly reasonable.[4] A defendant in a defamation matter may also raise the defence of fair comment. The defendant must then firstly allege and prove that the defamatory statement was a comment/opinion and not a statement of fact and that a reasonable person would have interpreted it as such. The defendant must furthermore allege and prove that the comment was fair, that the facts commented on were truly stated, and that it was of public interest.[5] It is clear from the above that one must be careful when making accusations or statements which could have the effect of defaming another person. Social media and the internet, in general, have exacerbated the risks involved with making such statements as it is often instantly published to a broad audience. One should thus always ensure that statements are true and reasonable before making them. Reference List: Various case law (see footnotes) Amler’s Precedents of Pleadings [1] South African Associated Newspapers Ltd and Another v Yutar 1969 (2) SA 442 (A) [2] Vermaak v Van der Merwe (1981) 1 All SA 432 (N) [3] Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) para 18. [4] Amler’s Precedent of Pleadings p 162. [5] p 163. 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)
South Africa’s new zero-tolerance drunk driving law
During March 2020, the South African Cabinet approved the National Road Traffic Amendment Bill (“the Bill”) for submission to Parliament. The Bill proposes amendments to the National Road Traffic Act 93 of 1996 (“the Act”).The most prominent amendment to the Act is the change of the alcohol level limit of drivers in South Africa to zero. The current legal alcohol level limit in terms of the Act is less than 0.05 grams of alcohol per 100 millilitres of blood, or, for professional drivers, less than 0.02 grams of alcohol per 100 millilitres of blood, when measured via a blood sample. When measured by breathalyser, the current measure is 0.24 milligrams of alcohol per 1,000 millilitres of breath, and for professional drivers, it is 0.10 milligrams of blood per 1,000 millilitres of breath. The Bill does not amend the methods of testing alcohol levels, penalties, or any other part of current legislation that deals with the alcohol level of drivers. It merely deletes the sections of the Act that specify the permitted level of alcohol for drivers. Clause 46 of the Bill provides that— “No person shall on a public road— (a) drive a vehicle; or (b) occupy the driver’s seat of a motor vehicle the engine of which is running, while there is any concentration of alcohol in any specimen of blood taken [or of breath exhaled] from any part of his or her body.” [own emphasis added] In essence, soon South Africans will not be permitted to drive if they have had any alcohol whatsoever. President Cyril Ramaphosa indicated that this amendment is necessary to address the crisis South Africa faces where roughly 14,000 persons are killed on our national roads annually. Some of the other amendments to the Act are as follows: The Bill provides for the suspension and cancellation of the registration of an examiner for driving licences or an examiner of vehicles, if such person has been convicted of an offence listed in Schedule 1 or 2 of the Criminal Procedure Act 51, or has a direct or indirect conflict of interest in the examination. The cancellation or suspension of an examiner’s registration as such seems rather arbitrary and it is unlikely that it will pass constitutional muster. The Bill also now requires the registration and grading of driving school instructors, training centres and driving schools; and prohibits the use of unauthorised aid during a test for a learner’s licence or a driving licence test, as well as the disqualification therefor. Furthermore, in terms of the Bill, inspectors of licences, examiners for driving licences and traffic officers are no longer required to obtain a diploma to meet the minimum requirements to work as such but must now merely obtain the appropriate qualification to do so. Clause 43 of the Bill authorises a person who drives an emergency vehicle in the carrying out of his or her duties or a person driving a vehicle while responding to a disaster in terms of the Disaster Management Act 57 of 2002 to disregard road traffic signs, permitting such person to disregard the directions of a road traffic sign and in the case where such vehicle is approaching certain intersections, such driver to stop at the intersection and proceed only when it is safe to do so. Accordingly, the Bill effectively expands the ambit of emergency vehicles that may exceed the speed limit and disregard the road traffic signs. This addition appears to be in conflict with the theme of the Bill, which is to reduce the number of accidents and deaths on our national roads. In addition, clause 44 of the Bill reads that the driver of an emergency vehicle who drives such vehicle in the carrying out of his or her duties or a person driving a vehicle while responding to a disaster in terms of the Disaster Management Act 57 of 2002 may not exceed a speed of 20 kilometres per hour through an intersection. Reference List: https://www.businessinsider.co.za/the-blood-alcohol-limit-for-drivers-in-sa-is-set-to-nil-in-a-draft-law-2020-6 https://www.dailymaverick.co.za/article/2019-10-24-toughen-the-law-one-drink-is-too-many-if-youre-driving/#gsc.tab=0 National Road Traffic Act 93 of 1996 National Road Traffic Amendment Bill 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)