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
Private prosecution: Is justice attainable even if the state fails us?
Members of the public, and specifically victims or those close to them, are often disheartened by the National Prosecuting Authority (“NPA”) and its decisions not to prosecute persons who have allegedly committed a criminal offence. The Criminal Procedure Act (“the CPA”), however, contains two sections that can be relied on to bypass the NPA, by privately prosecuting persons who have allegedly committed criminal acts. These sections have recently been shoved in the spotlight thanks to the successful private prosecution of Faizel Hendricks, who was found guilty in January 2022 of murdering his partner Rochelle Naidoo in 2005. This is the first time that an accused has been convicted after being privately prosecuted. The first section that details the terms in which a person can be privately prosecuted is found in section 7 of the CPA, where it states that an individual may institute proceedings if a certificate has been issued by the Director of Public Prosecutions (“DPP”) confirming that the NPA does not intend to prosecute the alleged criminal. This certificate is also known as a certificate nolle prosequi. Section 7(1) of the CPA states the following: “(1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence: (a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; (b) a husband, if the said offence was committed in respect of his wife; (c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or (d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, May… either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.” The second is section 8 of the CPA, which makes provision for a private prosecution to be instated under a statutory right. Section 8(1) reads as follows: “(1) Anybody upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.” Section 8(2) further states that private prosecution under this section may only be instituted after consultation with the Attorney General, and only if the Attorney General has withdrawn his/her right to prosecute in respect of any specified offence or specified category of offences. Private prosecutions under section 8 can be done by natural or juristic persons and do not require a certificate as referred to in section 7 of the CPA. Hendricks was prosecuted in terms of section 7 of the CPA, when Rochelle Naidoo’s parents instituted action after the Cape Town District Court, during its inquest in 2008, found that it could not determine who held the firearm at the fatal moment when Rochelle Naidoo was shot (Hendricks averred that she committed suicide). The DPP declined to prosecute and Rochelle’s parents subsequently instituted proceedings in the Malmesbury Regional Court, where Hendricks was found guilty of murder in July 2014 and sentenced to 15 years imprisonment. Hendricks appealed the verdict but was unsuccessful in his appeal as the Western Cape High Court confirmed the conviction and sentence in January 2022. It is clear from sections 7 and 8 of the CPA, as well as Mr Hendricks’ conviction, that justice can be obtained by victims and/or their families in circumstances where the NPA decides not to prosecute a person who has allegedly committed criminal acts. However, this justice is neither swift nor affordable when one considers the formalities that must be complied with and the accused’s right to appeal, which can cause significant delays for the persons instituting the private prosecution as well as significant legal costs (which include expert witnesses’ fees, such as pathologists and ballistic experts, which would normally be paid for by the State). The private prosecution of Faizel Hendricks confirms this as it took the Naidoo family 10 years to finalise this matter to attain justice. Yusuf Asmall, Rochelle’s father, confirmed the high financial and personal costs involved in this matter when he stated that “[i]t’s been a painful journey. It was a costly affair”. In conclusion, the CPA does provide possible avenues for victims and their families to attain justice in circumstances where the NPA decides not to prosecute. However, these avenues are only available to those who have significant resources and time, and are thus only available to a select group of South Africans. Reference List: https://www.iol.co.za/capeargus/news/family-finds-closure-after-17-year-battle-to-get-justice-for-their-slain-daughter-32cc2d3b-0b92-4e3d-b108-ab6ae2c32c79 Criminal Procedure Act 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)