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
Cancelling a lease agreement during COVID-19
2020 has been an unpredictable year, to say the least. Each new week seems to hold its own uncertainties and concerns. In such times, it is important for tenants of residential property to know what their rights are in terms of premature cancellation of lease agreements that may be necessitated by COVID-19, the pursuant lockdown and general change of personal circumstances. As a point of departure, the tenant can consult the lease agreement to check if there are any provisions pertaining to early cancellation. If there is no such clause, or the terms of the clause are unacceptable, the tenant can turn to the provisions of the Consumer Protection Act 68 of 2008 (“the CPA”), if applicable. The CPA will be applicable to residential lease agreements, except in rare circumstances. Consult with your lawyer to determine the CPA’s applicability to your lease agreement. If the CPA is applicable to the lease agreement, the tenant would be able to lawfully cancel the lease agreement at any time, even if there is no cancellation clause in the agreement. Section 14(2)(b) of the CPA states that a tenant may cancel the lease agreement, despite any provision of the lease agreement to the contrary, by giving 20 business days’ notice in writing. There may however be financial consequences for the tenant as the landlord can impose a reasonable cancellation penalty on the tenant upon early cancellation. There are guidelines in Regulation 5 of the Act as to what a “reasonable cancellation penalty” entails. The cancellation penalty should not be exorbitant, and if the tenant feels that the landlord’s claim is excessive and unfair, they can approach the National Consumer Tribunal or the Rental Housing Tribunal. Tenants can also approach their lawyer, who can address the landlord and negotiate a reasonable cancellation penalty, considering the relevant facts of the matter. Upon expiry of a fixed-term lease agreement the lease agreement will automatically carry on a month-to-month basis, unless the tenant expressly agreed to the renewal of a further fixed-term or the tenant terminated the agreement upon the expiry date. In such a case, the provisions of the Rental Housing Act 50 of 199 are relevant. The landlord can cancel the lease agreement, in terms of the Act, by giving one calendar months’ notice. In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), the Western Cape High Court held that one month’s notice must be interpreted as a notice given before the end of the month, to terminate the contract at the end of the next month. There are therefore various considerations at play when a tenant considers premature cancellation of a lease agreement. To avoid unnecessary disputes and an exorbitant cancellation penalty, a tenant would benefit from consulting their attorney before giving notice of cancellation to their landlord. 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)