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Arrest Detention and After Court Appearance
Arrest Detention and After Court Appearance Section 50(1)(c) of the Criminal Procedure Act 51 of 1977 provides a safeguard provision, which obliges that a suspect must be brought before court within 48 hours after arrest for consideration of bail. In Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) at para 44 it was held that the role of the police officers becomes exhausted after bringing the suspect before the court and the role for determination of further detention pending trial is one of the court. When a court orders a further detention, its decision must conform to s 12(1)(a) of the Constitution. An exposition from Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) at para 43 is that, because an arrest and detention encroaches one’s right to freedom, s 12(1)(a) of the Constitution does not only require the procedure to be fair but it must be substantively fair on just cause with acceptable reasons. If the detention does not meet these requirements, it becomes unlawful. This scenario, therefore, attracts liability on the Minister of Police under the common law principle of causation on the premise that the breach of that constitutional right to freedom was predicated by the unlawful arrest. To see how the Minister of Police may be held liable for further detention see Woji v Minister of Police [2015] 1 All SA 68 (SCA) and De Klerk v Minister of Police 2019 (12) BCLR 1425 (CC). In Woji, the plaintiff was arrested and detained on charges of armed robbery. During the bail hearing, the Investigating Officer, Mr Kuhn, testified that Mr Woji was identified in a video footage as one of the accused. Relying on the evidence by Mr Kuhn, the court denied his bail application. On viewing the footage it was found that Mr Woji could not be depict on the video and the charges were subsequently withdrawn. He then instituted a delictual claim and pleaded that the magistrate in refusing the bail acted on information provided by Mr Kuhn and that Mr Kuhn failed to properly investigate and failed to bring relevant information before the court. The High Court, however, dismissed his claim on the basis that the further detention was at the discretion of the court and the detention was, therefore, lawful. He appealed the dismissal and the Supreme Court of Appeal (SCA) evaluated the legality of the manner in which the decision of the bail application was exercised, and it did so in the context of s 12(1)(a) of the Constitution. The SCA found support in Zealand, which showed that once the detention is not justifiable by acceptable reasons and without just cause, the right not to be deprived of freedom is established. In determination of liability, the court examined the probability that would have ensued had it not been for the erroneous view of Mr Kuhn who gave untruthful information to the court, and it held that Mr Woji would have probably been released on bail. Lastly, it was held that a reasonable person in the position of Mr Kuhn would have foreseen that his untruthful evidence would lead to the refusal of bail and on that footing it was found that Mr Kuhn’s wrongful conduct was closely linked to the loss that followed. Thus, the liability was found on the Minister of Police. In De Klerk, the applicant was charged for assault with intent to cause grievous bodily harm. After the arrest on the same day, he was taken to a ‘reception court’ where a bail application was not considered, and as a result he remained in detention. The complaint against him was later withdrawn. He then instituted a delictual claim for unlawful arrest and detention, and malicious prosecution. The claim was dismissed by the High Court. When he appealed to the SCA, the majority judgment incorrectly relied on Sekhoto and held that the Minister of Police cannot be liable for detention post first appearance even if the arrest is unlawful as that decision is exercised by a court. The court awarded the plaintiff damages only up to his first appearance in court. Rogers AJA (as he then was) penned a dissenting judgment that the Minister of Police was liable for the entire period of detention. His rationale was based on causation and policy considerations that ‘but for the unlawful arrest, the appellant would not have been brought before the court and there would have been no occasion for the court to remand him in custody. As to legal causation, the direct consequences test is satisfied’ (De Klerk v Minister of Police [2018] 2 All SA 597 (SCA) at para 39). According to the judge, policy considerations in certain circumstances, except for in this case, may not allow the Minister of Police to be held liable for further detention by a court pursuant to a deliberative or considered judicial process to the question of bail as that judicial decision may be regarded as an intervening act that breaks the causal chain between the arrest and further detention. The decision of the SCA was appealed and Theron J writing for the majority squarely framed the issue, whether harm from further judicial detention can be attributed to the unlawful arrest, and as to what could be determinative factors to hold the Minister of Police liable for harm due to further detention. It was first evaluated in the context of Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) and Ndlovu v Minister of Police (GP) (unreported case no 2014/15210, 9-9-2016) (Adams AJ), whether it would be relevant to consider lawfulness or unlawfulness of further detention in order to establish liability on the Minister of Police and if found to be lawful, whether that would absolve the police from being liable for subsequent detention that was factually caused by the unlawful arrest. In Tyokwana, the accused was detained pending sentencing after pleading guilty to his charges and it later transpired that the plea was made under duress, and the police officer misled the court during the bail hearing. In Ndlovu, the accused appeared before the
Arrest Without Warrant of Arrest & Duty to Investigate The Suspicion
Arrest Without Warrant of Arrest & Duty to Investigate The Suspicion This article will focus on the s 40(1)(b) of the Criminal Procedure Act 51 of 1977 and the requirements the peace officers must observe, follow, and adhere to for the arrest to be lawful. The definition clause of the Criminal Procedure Act defines a ‘peace officer’ as including ‘any magistrate, justice, police official … .’ It also includes any power that has been issued under s 334 (1) to peace officers in a notice. Any reference to a peace officer in this article will be a reference to a police officer. Where does the power originate for a police officer to act? Section 13(1) of the South African Police Service Act 68 of 1995 (Police Service Act), states that: ‘Subject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.’ It is clear from this provision that police action can only be legitimate if there are laws governing such action and that such action should be in line with the Constitution. The Police Service Act states that in exercising any function and when performing their duties, the police must pay ‘due regard’ to the rights of the person affected by such action. The preamble of the Police Service Act states that one of the functions that must be performed by police officers is to combat crime. To effectively discharge this duty, they must be equipped with the necessary powers to do so. Some of the powers include, but are not limited to are arrest, interrogation of suspects, questioning of witnesses, entering of premises to name but a few. Arresting of a suspect is one of the more drastic steps that may be taken in order to secure the attendance of the suspect at court. The ideal situation is when a police officer obtained a warrant of arrest and effected the arrest to secure the attendance of a suspect at court. Some instances do not allow a police officer to obtain a warrant of arrest. The obtaining of a warrant of arrest at that time might defeat the purpose because the suspect might evade capture or destroy valuable evidence. In such instances the law allows for an arrest of a suspect without a warrant of arrest. The law applicable to arrest without a warrant Section 40(1)(b) of the Criminal Procedure Act states that: ‘A peace officer may without warrant arrest any person – … (b) whom he reasonably suspects of having committed an offence referred to in schedule 1’. The authority to effect an arrest without a warrant is granted to peace officers. The right to effect an arrest without a warrant is not unqualified. It does not authorise the arrestor to be a law unto himself when faced with a situation where the obtaining of a warrant will defeat the purpose. The court in S v Mabena and Another [2007] 2 All SA 137 (SCA) at para 2 held that: ‘The Constitution … proclaims the existence of a state that is founded on the rule of law. Under such a regime legitimate state authority exists only within the confines of the law, as it is embodied in the Constitution that created it, and the purported exercise of such authority other than in accordance with law is a nullity.’ The powers as indicated by Mabena have no force if those powers are exercised contrary to what the law envisaged. The law empowering the police to effect an arrest without a warrant must also comply with the Constitution. Considering s 13(1) of the Police Service Act, there can be no question that the power to arrest without a warrant is given to the peace officer to properly discharge their mandate. The court in Mabena, however, indicates how legislative power should be exercised. The laws governing police action also indicates the parameters and requirements within which these actions must be performed. The parameters and requirements that contains the power to arrest without a warrant Section 40(1)(b) of the Criminal Procedure Act allows a police officer to arrest a suspect without a warrant when they reasonably suspect the suspect of committing a sch 1 offence. There are jurisdictional facts that must exist in order for the arrestor to effect an arrest without a warrant as indicated by Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H. The jurisdictional facts are the arrestor must be a peace officer, they must entertain a suspicion, the suspicion must be that they, the suspect, committed a sch 1 offence and that the suspicion is reasonable. The court in Duncanindicated the four elements that must be present for the arrest to comply with the lawful requirements for the police officer to effect the arrest. The first three elements are easy to ascertain, but the fourth element is the one that requires an in-depth look for a police officer to be clothed with the necessary authority to effect the arrest. How the courts interpreted the fourth element as held by Duncan In Manala v Minister of Police and Others (GP) (unreported case no 13342, 12-8-2020) (Sardiwalla J) at para 22, the court held that: ‘The arrestor’s grounds must be reasonable from an objective point of view. When the peace officer has an initial suspicion, steps have to be taken to have it confirmed in order to make it a “reasonable” suspicion before the arrest is made.’ The court in Manala refers to steps that must be taken. What steps is the court referring to? To answer this, we must look at Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) at 836I – 837B where it was held that ‘there must be an investigation into the essentials relevant to the particular offence before it can be said that there is a reasonable suspicion that it has been committed.’ There are ‘steps’ that need to be taken and
Slip & Trip Claims
Slip & Trip Claims Slip and trip is the law of delict. It’s a personal injury claim against the wrong doer. At often times, you find that there is a spillage of any liquid, be it juice or water or even a banana peel at a your favourite grocery store or mall and you unfortunately slip trip and fall and damage a part of your body. And are taken to the hospital for emergency medical care or to a private dr for medical attention, You are illegible to claim for your personal injuries from the owner of the grocery store of the owners of the Mall in question, whomever is the identified wrong doer. This does not only apply to spillages, but also to uneven surfaces at Malls, Police Stations or construction sites were no warning signs are placed to warn the public of any construction taking place or uneven surfaces. Should you slip and trip and fall, you are also illegible to claim for your personal injuries. Slip & Trip claims are not applicable if you injured yourself during your course of duty- you cannot institute proceedings against your employer. Uncategorized July 17, 2023 Ramaesele Mphahlele
