File Edit View Sock Window Help | Applied Law for Police Officials, 4th Edition (2) | vp Applied Law for Police Officials Fourth Edition ty Cerita Joubert ND Pol Admin (TSA) BIUR LLB (Unisa) LLM (Leiden) ‘Advocate of the High Court of South Africa Member of the National Forum of AdvocatesFile Edt View Book Window Help | Applied Law for Police Officials, 4th Edition (3) -| vp First edition 1999 Second edition 2001 ‘Reprinted 2003 Reprinted 2004 Reprinted 2005 Reprinted 2003 ‘Third edition 2010 Reprinted 2011 Reprinted 2012 Fourth edition 2013 © Juta and Company (Pty) Lid Ast floor, Sunclare Building, 21 Dreyer Street ‘Claremont, 7708, Cape Town PO Box 24299, Lansdowne 7779 PO Box 44368, Claremont 7735, ww jutalaw.co.z3 ‘This book is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in wrting from the publisher. Although every care is taken to ensure the accuracy of this publication, supplements, undates and replacement material, the authors, editors, publishers and printers do not accept responsibilty for any act, omission, loss, damage or the consequences thereof occasioned by ’ Feliance by any person upon the contents herect. Cover design by Drag and Drop ISBN (print): 978 1 48510 107 9 778 1 40510 739 2Contents Foreword to the fourth ed Foreword to the third edition Preface Table of statutes ‘Table of cases Chapter 1: Introduction to South african law 1 Introduction 2. Definition of the law 3 Sources of South african law 2.1 Material sources 3.1.1 Common law 3112 Statutory law 31113 The Constitution 3.14 Caselaw 3.15 Summary 3.2 Knowledge sources of law 4. Classification of South African law 4.1 Substantive versus procedural law 4.2 Private versus public law 4.3 Police law 5 The role of law ina democracy 3.1 Basic concepts and definitions S11 State 5.12 Government 5.13 Democracy 5.2 Characteristics of a demacracy 5.21 Rule of lew 5.2.2 Separation of powers 5.2.3 Limited government 5.3 Legitimacy and police credibility 5.3.1 Civilian Secretariat for Police Service 5.3.2 Independent Poiice Investigative Directorate (IPID) 5.4 The Criminal Justice System Chapter 2: Policing powers and responsibilities 1 Introduction 2 Founding provisions 3 Sources of policing powers 3.1 The Police Service Act 3.2.4 Powers; duties and functions of members 3.1.2 Regulations and Code of Conduct 3113 _ Orders and instructions 3.2 Criminal Procedure Act 3.2.1 Discretion v 3.2.2 Reasonableness requirementFie Edt View Book Window Hebp Zi] Contents il 3.1. Powers, duties and functions of members n 3.1.2 Regulations and Code of Conduct 3.13 _ Orders and instructions 3.2 Criminal Procedure Act 3.2.1 Discretion 3.2.2. Reasonableness requirement 3.23 Limitation of powers 3124 Definitions 3.2.5. Schedules 3.3 Other legislation 4 Influence of the Constitution on pelicing powers 4.1 Limitation clause 4.1.1 Introduction 411.2 Lawful limitation of rights: 4.1.3 _ Concluding remarks 4.2. Exclusionary rule 4.3. Right to just administrative action 4.3.1. Administrative action 4.3.2. Procedurally fair administrative action 43.3. Judicial review 41314 Practical application 5 Liability for wrongful police action 5.1 State liabilty 5.2 Personel liability 5.2.1 Criminal liability 5.2.2 Civil (delictual) iabilty 5.2.3 Disciplinary action 6 Additional reading Chapter 3: Criminal prosecution 1 Introduction 2 Nature of criminal liability 2.1 Differences between criminal and civil matters 21.4 Interests involved 2.1.2 Applicable branches of law 21113 Standard of proaf 2.1.4 Purpose and outcome of proceedings 2.2 Features of enminal offences 2.3 Cyber crime 3 Criminal courts in South Africa 3.1 Basic concepts 3.2 The court structure 3.2.4 Magistrates’ courts 3.2.2. High courts 3.23. Supreme Court of appeal 3.2.4 The Constitutional Court 3.3. Criminal justice system for children 4 Co-operation during criminal prosecution 4.1 The relationship with the vietim 4.2. The relationship with witnesses 4.3. The relationship with the prosecutor 4.3.1 The docket 43.2 Witnesses 4.3.3 Release on bail or warningFile Edit View Book Window Help <| Contents >| x{> ‘Coroperation auring criminat prosecuson 4.1 The relationship with the victim 4.2 The relationship with witnesses 4.3 The relationship with the prosecutor 43:1. The dockat 4.3.2 Witnesses 4°3:3._ Release on bail or warning 4.314 The accused 413.5 The defence 5 Additional reading Chapter 4: General elements of an offence 1 Introduction 2 The definition of an offence 2.1 Definition and general elements 2:2 Legality 2.3 Conduct 214 Unlawfulness 2.5 culpability 3 Legality 3.1 Introduction 3.2. Contents of the prinople of legality 2.3 Constitutional recognition 4° Conduct 4.1 Introduction 4.2 Requirements of conduct 4.2.1 Voluntary conduct 4.2.2 Human behaviour 4.23 Liability for omissions 4.3. Causation 4.3.1 Factual causation 4.3.2 Legal causaton 5 Unlawfuiness 5.1 Private defence 5.1.4 Requirements of the attack 5112 Requirements of the defence 5.1.3 _ Test for private defence 5.2 Necessity 5.2.4 Alegal interest must be endangered 5.2.2. The danger must have begun or be imminent 5.2.3 The defensive act must be necessary to avert the danger 5.2.4 The defensive act must be reasonable 5.2.5 _ The endangered person must know he/she is acting in necessity 3.3. Consent Pages 5.3.4 Consent must be given voluntarily 5.3.2 Consent may be given expressly or tacitly 5.3.3. Consent must be given before the act is committed 5.3.4 The consent-giver must be capable of ferming @ will and have the eapecity to consent 5.3.5. Consenting person must know what he/she is consenting to 5.3.5 Consent may orly be given by 2 person who is gong to be harmed Official capacity Superior orders 5.5.1 The order must not be manifestly unlawful 5.5.2 A person competent to do so must issue the order 5.5.3 Doing only what is ordered v 5.6 Disciplinary chastisement akFile Edit View Book Window Help <| Contents . - Bal 5.3.6 Consent may only be given by a person who is going to be harmed 5.4 Official capacity a 5.5 Supsrier orders 5.5.1 The order must not be manifestly unlawful 5.5.2 A person competent to do so must issue the order 5.5.3 Doing only what is ordered 5.6 Disciplinary chastisement 5.6.1 The parent's right of chastisement 5.6.2 _ Other categories 5.7 _ insignificance 6 Culpabslty 6.1 Introduction 6.2 Criminal capacity 6.2.1 Categories of criminal incapacity 6.2.2 Burden of proot 6.23 Evidence 6.24 Verdict 6.2.5 _Non-pathological criminal incapacity resulting from intoxication 6.3 Intention 6.3.1 Direction of will 6.3.2 _ Knowledge of the circumstances, 6.4 Negligence 6.4.1. The reasonable person 6.4.2 Foreseeability 6.4.3 Guarding against the result 6.4.4 Comparison 7 Additional reading Chapter 5: Inchoate crimes, participation, strict and vicarious liability 1 Introduction 2 Inchoate crimes 2.1 Introduction 2.1.1 Types of inchoate crimes 211.2 The nature of incomplete crimes 2.2 Attempt 2.2.1 Completed attempt 2122 Interrupted attempt Pages 2.2.3 Attempt to commit the impossible 2.2.4 Voluntary withdrawal 2.3. Conspiracy 2.4 _Incitement 3 Participation 3:1 Introduction 3.2 Perpetrator 3:3. Common purpose 3.3.1 Liability end the doctrine of common purpose 313.2 Joiner-in cases 3.4 Aecomplice 3.4.1 The unlawful conduct 314.2 Intention 3.5 Accessory after the fact 4 Strict and vicarious lability 4.1 Strict liability, 41 Test for strict liability v 4.1.2 — CriticismFile Edit View Book Window Help X] contents -| $4.1 The unlawtulconauct 342 Intention 3.5. Accessory ater the fact 4. Strct and veers labity a Sere ay S21 Test for trie ability i Ghen S33. Praetel considerations 4.2 Vicarious labiity 12 Requirements fr vicarious lity 322 _Diference between stret and vierious fabity 5 additional reading Chapter 6: Crimes against the person 1 Introduction 2 Murder 2.1 Definition 2.2. Specific conduct required in the case of murder 2.2.4 ‘causing the death’ 212.2 ‘of another’ 2:23 ‘human being? 2.3 Unlawfulness in the case of murder 2:4 Culpabilty in the case of murder, 2.5 Punishment for murder 2.6 Competent verdicts on a charge of murder or attempted murder 3 Culpabie homicide 3.1 Definition 3.2. Specific conduct for culpable homicide 3.3 Culpabilty in the case of culpable homicide 2.4 Competent verdicts in the case of culpable homicide 4 Assault 4.1 Definition of assault 4.2 Specific conduct for assault 4.2.1 Application of force [Ceage it 4.2.2 _ inspiring a belief that force is immediately to be applied 4.3. Unlawfulness in the cace of aceault 4.4 Culpabilty in the case of assault 4.4.1 Intention in general 4.4.2 Accault with intent to do grievous bedily harm (assault G3H) 4.5 Competent verdics for assault GBH or sexual assault 5 Sexual offences. 5.1 Rope. 5.1. Definition 511.2 Specific conduct relating to rape 5.1.3 Unlawfulness in the case of repe 5.14 Culpability in the case of rape 5.1.5 Punishment for rape 511.5 Compelled rape 5.1.7 Competent verdicts for rape or compelled rape 5.2. Sexual assault 5.2.1 Definition 5122 Compelled sexual assault 5.2.3. Compelled self-sexual assault 5.2.4 Competent verdicts for sexual assault or compelled sexual assault 5.3 Sexual offences against children v 5.3.1. Acts of consensual penetration with certain children (statutory repe)File Edit View Book Window Help 5.2 Sexual assault 5.2.1 Definition 7 5.2.2 Compelled sexual assault 5.2.3. Compelled self-sexual assault 5.2.4 Competent verdicts for sexual assault or compelled sexual assault 5.3. Sexual offences against children 5.3.1 Acts of consensual penetration with certain children (statutory rape) 513.2 Acts of consensual sexual violation with certain children 5.3.3 Chimes relating to child pornography 6 Crimen iniaria 6.1 Definition 6.2 Specific conduct relating to crimen iniuria 6.2.2 Violation of dignity, 6.2.2 Infringement of privacy 6.2.3 Serious nature 6.2 Unlawfulness in the case of crimen iniuria 6.4 _Culpability in the case of crimen iniuria 7 Offences in terms of the Domestic Violence Act 7.1 The nature of domestic violence 7.1.1 Domesticrelationship 7.12 Act of domestic violence 7.2 Offences related to domestic violence 7.2.1 Acts of damestic violence that constitute crimes 7.2.2. Contravention of a protection order 72:3 Making a false statement 7.3. Policing powers under the Domestic Violence Act 7.3.1 Seizure of arms and dangerous weapons Page xiv 7.3.2 Accompanying complainant to collect personal property 7.3.3 Arresting respondent with a warrant 7.3.4 Arresting respondent without a warrant 8 Kidnapping 8.1 Definition of kidnapping 8.2 Specific conduct in the case of kidnapping 8.3 Unlawfulness in the case of kidnapping 8.4 Culpability in the case of kidnapping 9 Abduction 9.1 Definition of abduction 3.2. Specific conduct in the case of abduction 9.3 Unlawfulness in the case of abduction 3.4 Culpability in the case of abduction 30 Extortion, 10.1 Definition 10.2 Specific conduct in the case of extortion 10.2.1 Exerting of pressure 40.2.2. The advantage 40.2.3 Causality in the case of extortion 40.2.4 Extortion by means of electronic devices 410.3 Uniawfulnese in the case of extortion 10.4 Culpabilty in the case of extortion 10.5 Attempted extortion 11 Harassment LL Definition 11.2 Application for protection order ui 113. Policing powers eeFile Edt View Book Window Help Do ere ooo I 10:4 Culpabilty in the case of extortion 10.5._Attempted extortion 41 Harassment 11.1. Definition 411.2. Application for protection order 11:3 Policing powers, 1114 offences relating to harassment 12. Adcitional reading Chapter 7: Property crimes 1 Introduction 2. The 2.1 Definition of theft 2.2 Specific conduct in the case of theft 2.2.1 Appropristion 22.2 Movable corporeal property 2.2.3 Belonging to another 2.3 Unlawfulness in the case of theft 2.4 Specific intention reauired for theft 2.5 Theit by false pretences 2.8 Competent verdicss in case of theft 2 Offences related to theft 3.1. Removal of property for use (unauthorised borrowing) 3.2. In possession of suspected stolen property Page xv 3.2.1 Found in possession of the goods 3.2.2. There were reasonable grounds to suspect that the goods were stolen 3.2.3 _ The accused person must be unable to give a satisfactory account of his/her possession 3.3 Receiving stolen goods 3.3.1 Goods acquired or received other than at a public sale 33.2 Into his/her possession 3.3.3 The goods were otelen 3.4 Receiving stolen property knowing it to be stolen 3.4.1 Stolen property 214.2 Urlawfulness 3.4.3 Receiving the stolen property 344 Intention 3.4.5 Competent verdicts 3.5 _ Offences in terms of the Second-Hand Goods Act 4 Robbery 4.1 Definition 4.2 Specific conduct in the case of robbery 4.241 Theft 4.22. Violence 4.3 Punishment in the cae of robbery 4.4 Competent verdicts on a charge of robbery 5 Housebreaking with intent to commit an offence 5.1 Definition 5.2 Aspects related to specific conduct for housebreaking 5.2.4 Breaking 5.2.2 Entering 5.2.3 Premises 5.3 Unlawfulness in case of housebreaking 3.4 Specific intention regarding housebreaking 5.5 Competent verdicts for housebreaking v 5.6 Possession of housebreaking or carbreaking implementsFile Edit View Book Window Help | Contents . -| «D> 5.24 Breaking S22 entering a 5.2.3 Premises 5.3 Unlawfulness in case of housebreaking 5:4 Specific intention regarding housebreaking 5.5 Competent verdicts for housebreaking 5.6 _ Possession of housebreaking or carbreaking implements 6.1 Definition 6.2 Aspects related to specific conduct in the case of fraud 6.2.1 Misrepresentation 6.2.2 Made to 2 person 6.2.3 _ Prejudice 6.3 Unlawfulness in the case of fraud 6.4 Culpability in the case of fraud 6.5 Attempt in the case of fraud 6.6 Fraud by means of electronic devices 7 Forgery and uttering 71 Forgery 7.1.4 Aspects related to specific conduct 7.12 Urlawfulness Page xvi 7.1.3 Intention 7.14 Attempt 7.2. Uttering a forged document 7.2.4 Specific conduct 7.22 Intention 7.23 Attempt 8 Damage te property 8.1 Definition 8.2 Aspects related to specific conduct for damage to property 8.2.4 The damage 8.2.2 _ The property 8.3 Unlawfulness in case of damage to property 8.4 Specific intention required for damage to property 9.1 Definition 3.2 Specific conduct for arson 9.3 Unlawfulness in the caze of arson 9.4 Specific intention regarding arson 10 Adcitional reading Chapter 8: Crimes against the administration of justice 1 Introduction 2 Perjury 2.1 Definition 212 Aspects related to epecific conduct 2.2.1 The statement 2:22 On oath, affirmation or admonition 2.2.3 Inthe course of judicial proceedings 2.3 Unlawfulness 2.4 Intention 3 Subornation of perjury 2.1 Definition 3.2 Specific conduct 3.3. UnlawfulnessFile Edit View Book Window Help Zi] Contents il oid anne course orjusical procesaings 2.3 Uniawfalness 2.4 intention 3 Subomation sf penury Bi Defintion 3.2 Speuifie conduct 33 Uniowtuness 3.4 Intention 4 Statutory penury 4.1 Section 319(3) of the 1955 Criminal Procedure Act 32 Speshe conduct 43 Reverse onus 314 Credit of state winesses 5 Defeating or obstructing the couse of justice 34 Detntion 3.2 Aspects related to specife conduct $21. Defeating $22. Obetusthg 3.23. The edmnistraton of justice ae 5.2.4 Attempt to defeat or obstruct the course of justice 5.2.5 Conduct that amounts to defeating or obstructing the course of justice 5.3 Unlawfulness 5.4 Intention 6 Imperconating a police official 6.1 Section 68(1) of the Police Service Act 6.2. Section 66(1) of the Police Service Act 7 Eecaping from custody 7.1 Specific conduct 7.1.4 Escaping from police custedy 7.1.2. Escaping from prison 7.2. Unlawfulness 8 Additional reading Chapter 9: Crimes against the community 1 Introduction 2 Public violence 2.1 Definition 2.2 specific conduct 2.2. Concerted action 2.2.2 Serious proportions 2.3 Unlawfulness 2.4 Intention 2.5 Legislation associated with public violence 3° Corruption 3.1 General offence of corruption 3.1.1 Parties to the offence 3:12 The gratification 3113 To act ina certain manner in future 3.2. Offences in respect of specific corrupt activities 3.2.1 Offences relating to specific persons 3.2.2 Offences relating to specific matters 323 Other offences 3.3 Unlawfulness 3.4 Intention 4. Offences ragarding firearms and ammunition v 4.41 _ Defintions3.2.1 Offences relating to specific persons 3.2.2. Offences relating to specific matters 312.3 Other offences 3.3 Unlawfulness 3.4 Intention 4. Offences regarding firearms and ammunition 4.1. Definitions 4.2 Offences relating to possession of firearms and ammunition 4.2.1 Unlawful possession of a firearm 4.2.2 Unlawful possession of a prohibited firearm 4.2.3 Unlawful possession of ammunition 4.3. Other offences under the Firearms Control Act 4.3.1 Painting a firearm 4.3.2. Carrying of frearm in public place 4.3.3 Keeping track of all licensed firearms Page xvi 5 Offences regarding drugs and drug treffickina 5.1 Definition of drugs 5.2 Use and possession of drugs 5.2.1 Prohibited conduct 5.22 Urlawfulness 5.2.3 _ Intention 5.3 Dealing in drugs 5.3.1 Aspects related to prohibited conduct 513.2 Urlanfulness 5.3.3 Intention 6 Offences under the Liquor Act of 1989, 6.1 Types of licences 6.2 General offences in terms of liquor legislation 6.2.4 Offences relating to juveniles 6.2.2 _ Offences relating to drunkenness 8.3. Policing powers under the 1989 Act 7 Trafic offences 7.1 Definitions 71d Vehicle 711.2 Motor vehicle 713 Drive 714 Poblicroad 71115 Traffic officer 7.2 Selected offences 7.2.4 Licence requirements 7.2.2 Disobeying road treffic signs and exceeding the general speed limit 7.2.3 Duty to report an accident 7.2.4 Providing false information 725 Reckless or negigent criving 7.2.5 Driving under the influence of intoxicating substances 7.2.7 Other prohibited conduct 8 Prostitution 8 Additional reading Chapter 10: Overview of the criminal justice process 1 Introduction 2 Pre-trial process 2d Reporting 2.2 Investigation Docket for decisionChapter 10: Overview of the criminal justice process 1 Introduction 2 Pre-trial process 24 Reporting 2.2 Investigation 213 Docket for decision 2.4 Dealing with arrested persons, 2.5 Dealing with children 3 Trial procedure 3.1 Plea stage 22 State's case Page xx 3.3 Trial within a trial 3.8 The case for the defence 3.5 Addressing the court 3.6 Judgment Sentencing Legal remedies after judgment and sentencing Additional reading ‘hapter 11: Initiating the criminal justice process Introduction General provisiors regarding questioning 2.1 Entering premises to obtain information 2.2 Requesting names and addresses 213 Judges’ Rules Questioning potential witnesses Questioning suspects, arrested and accused persons 4.1 Introduction 4.2 Questioning of suspects 4.3 Questioning arrested persons, 4.3.1 Introduction 4°3:2 Questioning despite the right to remain silent 4.3.3 Police instructions on questioning 4.3.4 Voluntary statement by arrested person 4.4 Questioning of accused percone 5 Options after identifying perpetrators, 5.1 Introduction 3.2 Summons 5.3 Written notice 5.4 Indictment 3.5 Arrest 6 Additional reading Chapter 12: Arrest, detention and the use of force 1 Introduction 2 Arrest and detention 2.1 Definition and methods of arrest 2.2 The purpose of arrest 2.2.4 General rule 2122 Exceptions to the general rule Legal duty to arrest Distinction between arrest and detention Arrest and the Constitution The effect of unlawful arrest and detention The arrest of children Sob koFile Edit View Book Window Help Zi] Contents il 224 General ule 2.22 _ Exceptions tothe genera rule 5 Legal duty to arrest Digenston between errest and detention brrest ond the Constitution The effect of unlonful arrest and detention 2.7 _Thearest of chilcren 3. Recuirements for lewful arrest Sa Manner and effec of arrest 3.2 Arrest with a warrant 3.2.4 Application for the issue of a warrant 3.2.2 Execution of a warrant 3.3 Arrest without a warrant 3.4 Private persors must assist in arrest, 4 Use of force during arrest 4.1 Principle of minimum force 4.2. Breaking open premises for purposes of arrest 42.3 Using force to overcome resistance or escape during an arvest 4.3.1 History and background 4.3.2. Guidelines by the courts 4.3.3 _ The provicions of the amended caction 49, 5 Rights of arrested, detained and accused petsors 5.1 The constitutional rights of an arrested person 5.1.4 The right to remain silent 5.1.2 The right to be informed promptly of the right to remain silent and of the consequences of not remaining silent 5.1.3 The right not to be compelled to make 2 confession or admission that could be used in evidence against him/her 5.14 The right to be brought before @ court as soon as possible 5.1.5 The right, at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released 3.1.9 _ The right to be released from detention if the interests of justice permit, subject to reasonable conditions 5.2. The constitutional rights of a detainee 5.2.1 The right to be informed promptly of the reason for the detention 5.2.2 The right to choose and consult with a legal practitioner, and to be informed of this right promptly 5.2.3. The right to have a legal practitioner acsigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly 5.2.4 The right to challenge the lawfulness of the detention in person before a court and to be released if the detention is unlawful 5.2.5 The right to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommedation, nutrition, reading material and medical treatment 5.2.6 The right to communicate with and be visited by © spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner 5.2.7 _ Protection of children detained in police custody 5.3. Relevant constitutional rights of an accused person 5.3.1 The right to be informed of the charge with sufficient detail to answer it 5.3.2 The right to be presumed innocent, to remain silent, and not to testify during the proceedings 5.3.3 The right not to be compelled to give self-incriminating evidence 6 Procedure after arrest 6.1 Introduction 6.2 The arrested person must be informed of his/her rights 6.3 The arrested person must be taken to a police station 6.3.1 Detention at the palice station 6.3.2 The detainee must be brought before a lower court 2 2. 2 2 bo RS,File Edit View Book Window Help Zi] Contents il S-i.3__ Ine nght not to Be compelea to give ser-incrminating evigence © Procedure after wrest 5.1 Introduction i) 512 The arrested person must be informed of his/her rights 5.3 The arrested percon must be taken to a police station 6.3.1 Detention atthe police station 6.3.2 The detamee must be brought before a lower court 64 The court's powers 515 Procedure after the arrest of children 6.5.1 Children under 10 years of age 615.2 Children between 10 and 16 years of age 7 Additional reading Chapter 13: Bail as a method of release 1 Introduction 2 The right to apply for bail 3 Bail before frst appearance in lower court 3.1 Bail granted by the police 3.2 Bail granted by an authorised prosecutor 4. Bail granted by the court 4.1 Grounds fer consideration 42. Balmoney 4.2 Bail conditions 44 Onus of proof 4.5 _Provisian of information 5 Warning in ies of Bal & Termination of bail 6.1 Cancellation of bail S:1.2 Urgency of the matter 6.1.2 Grounds for cancellation of bail 6.1.3 Procedures following the issue of @ warrant 6.2 failure of the accused to appear 513 _ Failure to comply with bail conditions 7 Additional reading Chapter 14: General methods of obtaining evidence 1 Introduction 2 Evidence to be obtained in accordance with the Constitution 2.1 Introduction ee 2.2 exclusionary rule 2.2 Factors determining exclusion 2.3.1 Ifthe evidence ss obtained in a manner that violates any right 2132 If admission of the evidence woud render the tri unfair 213.3 If admission of the evidence would be otherwise detrimental to the administration of justice 2.4 Procedure for excluding evidence 3. Ascerteining bodiy features 3. Introduction 3.2 Compulsory taking of ingerorints 3.3. Finger- and body-prints for investigation purposes 344 Taking of body-prints 35 Identification 3.5.1 Procedure at an identification parade 315.2 Alternative identification parades 3.6 Other bodily marks, characteristics ar distinguishing features 3.7 Photographic images e 3:8 Storage of prints and images on databaseFile Edit View Book Window Help Zi] Contents il Gran aking of coay-pnnts $ tdentfaton 5 3.5.1 Procedure at an identification parade 315.2 Alternative identification parades 3.6 Other bodily marks, characteristics or distinguishing features 3.7 Photographic images 3.8 Storage of prints and images on database 319. Ascertaining bodily Features against a person’ wich or will 3.10 Ascertaining bodily features in terms of a court order 3.1L Record of bodily features to be destroyed 3:42 Ascertaining bodily features in terms of the Fireerms Control Act, 4 Search, seizure and dispose of articles 4.1 Introduction 4.2, General provisions regarding search and seizure 4.2.1 Authorisation to search and seize 4.2.2 Search to be executed in 2 decent and orderly manner 4.2°3 Aricies that may be seized by the state 4.3 Search with a warrant 4.3.1 General rule 4.3.2. Warrant issued in terms of s 21 of the CPA 4.2.2. Warrant issued in terms of s 25 of the CPA 4.4 Search without a warrant 4.4.1 Search with consent 4.4.2. Search unde" urgent circumstances 4.4.3 Search of arrested person 4.5 Searchin terms of s 13 of the Police Service Act 4.5.1 Search near borders 415.2. Search in an area that is cordoned off 4.5.3 _ Roadblocks and checkpoints 4.6 USe of force when search is ressted 4.7 Statutory lability for wrongful search 4.8 Disposal of sezed articles 4.8.1 Disposal of articles after seizure Page 1 4.8.2 Disposal of article referred to in s 30(c) where no criminal proceedings are instituted or where it is not required at criminal proceedings 4.8.3 Disposal of article where criminal proceedings are instituted and an admission of guit fine is paid 418.4 Article to be transferred to court for trial 4.8.5 Disposal of article after commencement of criminel proceedings 4.8.5 _ Forfeiture of article to the state 5 Additional reading Chapter 15: Alternative methods of obtaining evidence and information 1 Introduction 2 Admission, confession and pointing out 2.1 Introduction 2.2. Evidential value of an admission, confession and pointing out Admissbility requirements according to the Constitution 2.3.4 Constitutional requirements regarding confessions 2.3.2 Constitutional requirements regarding pointinas out 2.4 Admissions 2.4.1 Types of admissions 2.4.2 Admissibility requirements of an admission in terms of the CPA 2.4.3 Admission by a child in conflict with the law 2.5 Confessions 2.5.1 Distinction between admissions and confessione v 2.5.2 Admissibility requirements of confessions in terms of the CPA4 Chay 1 2 a 1 2 Oral evidence 25 26 Police aa 32 33 2a Admissions 2.4.4 Types of admissions 2.4.2 Admicsiblity requiramente of an admission in terms of the CPA 2.4.3 Admission by a child in conflict with the law Confessions 2.5.1 Distinction between admissions and confessions 2.5.2 Admissibility requirements of confessions in terms of the CPA 2533. Onus of proof 2.5.4 Reasons for excluding involuntary admissions and confessions 2.5.5 Confession by child in conflict with the law Pointing out 2.6. Distinguishing between a pointing out and 2 confession 2.6.2 Admissiblity requirements of a pointing out 2.6.3 Pointing out by child in conflict with the law traps, informers and interception Introduction Setting of police traps and undercover operations The use of informers Interception of communications and postal articles Additional reading a pter 16: The law of evidence: An introduction Introduction Evidence 2.1 Defining the law of evidence 2.2 _ Different types of evidence 2.3 Other evidential material Witnesses 3:1 Compellability and competence 3.2__ Privilege Proof of facts 4.1 Facts in issue 4.2 Definition of proof 4.3 Onus of proof 4.4. Standard of proof Basic concepts in the law of evidence Sa 5.2 ‘Admissbility and the weight of evidence Circumstantial evidence and direct evidence Presenting evidence in court 6a 6.2 63 Types of examination 6.1.4 Examination-in-chief 6.1.2 Cross-exemination 6.13 Reexamination 6.1.4 Questioning by the court General guidelines for improving behaviour on the witness stand The police official as a witness Refreshing memory 7a 72 73 74 ‘Authenticity Contemporaneous Disclosure Original document Additional reading Chapter 17: Types of evidence IntroductionFile Edit View Book Window Help <] cones ae I 73 bedowure 7.4 — Original document a 8 Adcitional reading Chapter 17: Types of evidence 1 Introduction 2 Oral evidence 2.1 Oral evidence 2.1.1 Section 213 of the CPA 211.2 Section 212 of the CPA 2.2 Under cath 2.3 In the presence of the public and the parties 2.4 Subject to examination 3. Reel evidence 3.1 A persen ac an object 3.2. Marks made by a person 3:3 Operation of technology [Pane] 3.4 Photographs of real evidence 3.5._ Inspection in loco 4 Documentary evidence 4.1 Pubic documents 4.2. Private documents 4.2.1 Introduction 4.2.2 Persons competent to submit private documents 4.3. Official documents 4.4 Primary and secondary evidence 5 Computer-genereted and electronic evidence 5.1 Business records 5.2 Banking records and documentation 5.3 The electronic Communications and Transactions Act (ECT Act) ideo and ausio recordings Photographs and films Additional reading ‘hapter 18: Privilege Introduction State privilege 2.1 Police methods 212 Police dockets 2.2.4 Access to police docket 212.2 Consultation with state witnesses 2.3 The informer 3 Private privilese 3.1 Legal professional privilege 3.2. other professional privileges 3.3 Martal privilege 3.4 Privilege against self-incrimination 3.5 _ State witnesses: Indemnity against prosecution 4 Additional reading Chapter 19: Irrelevant and unreliable evidence 1 Introduction 2 Opinion evidence 24 General rule 2.2 Exceptions to the rule v 2.2.1 Opinion evidence by laypersons can be admitted about a fact which is difficult to describe other than by giving anChapter 19: Irrelevant and unreliable evidence a 1 Introduction 2 Opinion evidence 2.4 General rule 2.2 Exceptions to the rule 2.2.1 Opinion evidence by laypersons can be admitted about a fact which is difficult to describe other than by giving an opinion 2.2.2 Experts may give opinion evidence on matters in which they are experts 2.3 Expert witnesses | Pagesoni | 2.3.4 The witness must be competent to express an opinion on the basis of his/her qualifications and/or experience 2.3.2 The witness must mention the grounds for his/her opinion 2.4 Discretion of the court 2:5 General practical examples of opinion evidence, 2.5.1 Drunken driving cases 2152 Drugs 2.5.3 Estimating speed, distance and age 215.4 Motor vehicle accidents 2.5.5 Fingerprints 255 Handwriting 2 Similar fact evidence 3.1 General rule 3.2 Exception to the rule 313. Practicel value of similar fact evidence 3.3.1 Identity 3.3.2 Acts of preparation 313.3 Opportunity, means and capacity 3.3.4 Systematic conduct, 313.5 Intent 3.3.5 motive 3.4 Similar fact evidence presented by the accused 3.5 Concluding remarks 4 Previous consstent statements 4. General rule 4.2 Exceptions to the rule 4.2.1 Rebuttal of an allegation of recent fabrication 4.2.2. Complaints with regard to sexual offences 4.2'3 _ Prior identification 5 Character evidence 5.1 Presenting cheracter evidence 5.1.1 Character evidence by the accused 5.1.2 _ Character evidence by the prosecution 3.2 Examination as to character 6 Hearsay evidence 6.1 General rule 6.2 Exceptions to the rule 6.24 Concent (= 3(1)(a)) 6.2.2 The original decarant must testify personally (s 3(1)(b) read with s 3(3)) 6.2.3 _ Discretion of the court (s 3(1)(c)! 6.3. Concluding remarks 7 Additional reading Chapter 20: Evaluating evidential material3.3.4 Systematic conduct, 3135 Intent 313.6 Motive 3.4. Similar fact evidence presented by the accused 3.5 Concluding remarks 4 Previous consistent statements 4.1 General rule 4.2 Exceptions to the rule 4.2.1 Rebuttal of an allegation of recent fabrication 422 Complaints with regard to sexual offences 4.2.3 Prior identification 5 Character evidence 5.1 Pracenting character evidence 5.1.1 Character evidence by the accused 5.1.2 Character evidence by the prosecution 5.2 Examination as te character 6 Hearsay evidence 6.1 General rule 6.2 Exceptions to the rule 6.2.1 Consent (s 3(1)(a)) 6.2.2 The original decarant must testify personally (s 3(1)(b) read with s 3(3)) 6.2.3 Discretion of the court (s 3(1)¢c)] 6.3. Concluding remarks 7 Additional reading Chapter 20: Evalu: 1 Introduction 2 Corroboration 2.1 introduction 2.2 Corrobaration of confessions 2.2.1 Confirmation in a material respect 2:22. Evidence proving the commission of the offence 2.3. Concluding remarks 3 Cautionary rules 3.1 Introduction 3.2 Participants 3.3 Traps 3.4 Identification 3:5 Alibi defence 3.6 Children 3.7 Single witnesses 3.8 The handwriting expert 3.8 Concluding remarks 4 Judicial notice 4.1 Introduction 4.2. Definition 4.3. Categories of judicial notice 43.1 General knowledge 4.3.2. Facts readily ascertainable 43.3 The lew 4.4. Concluding remarks S Additional reading Addendum IndexFie Edt View Book Window Hep [<] Chapter Introduction to South African law . 1p] Page 1 a Chapter 1 Introduction to South African law 1 Introduction Civilisation is dependent on order, Therefore a civilised society needs a legal system to persuade everyone to act in an acceptable manner which will ensure that order prevails. "The law’ is at the heart of the legal system. Anyone who disobeys the law will face consequences oF some form of punishment. According to the Constitution, «police officials are responsible for upholding and enforcing the law. (:) In addition, the law prescribes the powers and duties that police officials have in order to do their policing work. This means that all South African police officials must know, understand and be able to apply South African law in order to perform their duties diligently, and to exercise their powers lawtully It is important thet police officials understand whet the law i, where South African law comes from, where it can be found, and how the law is classified. In order to enable poice officials to properly appreciate the social context in which they perform their tasks, one ‘must also consider what is meant by ‘the law’ in the context of a democracy. =) 2 Definition of the law It is not easy to define precisely what the law is. Hosten «suggests that the law is a set of rules prescribed for human action by 2 determinant authority. (= Page 2 Kleyn & Viljoen \ list the following characteristics of the law: ‘+ “Tt consists of @ bedy of rules or regulations facilitating and regulating human interaction. + orders society and gives certeinty. +The rules are applied or interpreted by institutions of sta 3 Sources of South African law When the words ‘sources of the law’ are used, it refers to two things: the origin of the law, and where one can read about it ‘The ‘origin’ of the law refers to where the law of the country comes from. In South Africa some of our law arises far back in history, but today that law, celled ‘common law’, can be shaped by modern ways of thinking and must uphold the human rights laid down in our Conetitution. »» Statutory law derives from Parliament and ia 2 cecond source of law. The rules made by Parliament are referred to 22 "legislation’. The Constitution is ancther, very important, scurce of law because all other law must conform to its principles. Finally, the courts that interpret legislation and apply the law also have an influence in shaping the law in the light of the Constitution. Therefore, case law hended down by judges is a fourth source of lew. These four sources ere referred to as meteral’ sources of law because they are the official recognised sources from which legal rules that affect everyone arise. Secondly, "sources of law’ also refer to how one finds out what the law says, ie, where the provisions and information about the law can be found. This second aspect is referred to as ‘knowledge sources’, or ‘published information’, about the law. 3.1 Material sources Not all of South Africe's law is codified, which means that it cannot all be found in one single primary written source or ‘code’. Most of South Africa's legal rules stem from the following four different material sources: = Common law Statutory law (legislation)] ‘The Constitution ese lawFile Edit View Sock Window Help [| Chapter introduction to South African law ~ 2p] Not all of South Alticas law is codified, which means that it cannot all be found in one single primary written source or ‘code’. Most of South Africa's legal rules stem from the following four different material sources: a = Common law Statutory law (legislation)] The Constitution © case law 3.1.1 Common law ‘common law is the historical component of South african law. It evolved from a variety of oléer legal systems in Europe. indigenous communities, who had been living in southern Africa before Europeans arrived here, each had their own set of legal rules. ») So when the descendants from the European nations started settling in the Cape, the socety consisted of indigenous people and Curopeans. To ensure harmony and order amongst them there was 3 need for a single legal framework te regulate the conduct and activities of everyone living in the society. Over a period of time this legal framework emerged and was adapted to meet the requirements of the developing society. It resulted in the creation of the South African legal system as itis known today. ‘The European component of the South African common law is over 2000 years old and its earliest source comes from the Romar Empire that govemed many of the countries that comprise Europe today. The Roman Empire started about 700 years before the birth of Christ and lasted until about 500 years thereaiter. © (2) Law of the Roman Empire Roman law is the oldest source of South African law. The earliest formal source of Roman law, a criminal code known ag the Twelve Tables, was drawn up in about 450 BC. However, it was not until 149 BC, nearly 300 years later, that Rome, the seat of government at the heart of the Roman Empre, established permanent criminal courts to prosecute crime in the Empire. (2) Law of the Middle Ages (500 AD to about 1450 AD) ‘After the fall of the Roman Empire in around 470 AD, that is, 470 after the birth of Christ, a new law came into existence in Western Europe. This law was shaped by the Cathclic Church, but it had been inspired by the older Roman law. Thus, during the Middle Ages ‘the Roman law was taken over and adjusted to fit the belie's and circumstances of the societies in Western Europe that were governed by the Catholic Church. (©) The law of states (countries) During the Middle Ages, separate states started to form in Western Europe. Two important states that emerged at this time were the Netherlands and England. Each of these tates developed its own legal system. In Holland, a province of the Netherlands, the Roman law was incorporated and adjusted to become the law of that province, and itis therefore referred to as 'Romen-Dutch lew’. In England, the influence of Roman law was not important and English law developed more independently from the influence of other legal systems, (2) Law of the Cape Colony: the Roman-Dutch influence In 1652 the Netherlands established a base at the Cape where ships on their way to the East could obtein supplies. The Roman-Dutch law of Holland was accented as the legal system for this new society. Many of the crimes stil in existence today originated from the Roman-Dutch system and are therefore referred to as ‘common-law crimes’, eg, murder and theft. (=) Law of the Cape Colony: the English influence Early in the nineteenth century, that is, the 1800s, the British took control of the Cape and English law began to play 2 more important role in the development of the legal system in the colony. Although Roman-Dutch law was stil accepted as the main source of law, the English influence was especially important in the development of rules governing procedure in the courts, for instance, with regard to the rules of evidence. 3.1.2 Statutory law ‘The legal rules that governed sccieties in the seventeenth and eighteenth centuries, ie, 1600 to the 1700s, were not sufficient to regulate all human adivity in a modern age. For exemple, technological developments such as the invention of the motor vehicle resulted in the need for a uniform set of rules to regulate traffic. Consequently, societies needed to draw up and adopt legisiation v (Statutory law) to supplement the common law. In South Africa this is done by Pariiament, also referred to as the legislator.PPI File Edit View Sock Window Help [<|_Chapter1 Introduction to South African law : bs ‘the rules of evidence, . - 3.1.2 Statutory law ‘The legal rules that governed sccieties in the seventeenth and eighteenth centuries, ie, 1600 to the 1700s, were not sufficient to regulate all human activity in a modern age. For exemple, technological developments such as the invention of the motor vehicle resulted in the need for a uniform set of rules to regulate traffic. Consequently, eaciaties needed to draw up and adopt legiciation (Statutory law) to supplement the common law. In South Africa this is done by Pariiament, also referred to as the legislator. Legislation consists, firstly, of statutes, also known as Acts of Parliament, that are formally drafted and placed before Parliament in ‘the form of Bills to be debated before they are adopted by Parliament (through a system of voting) in order to govern certain particular matters, e9, Police, Traffic Contral, Education and Health. These Acts must be drafted, debated and adepted through established constitutional procedures before they can become law. Each Bil that becomes an Act is named in accordance with the matter that it seeks to regulate, and each one is numbered an¢ contains the year in which it was adopted, eg, the Criminal Procedure Acts Act 1 of 3977. Crimes that are laid down by legilation, such as corruption, are known as statutory offences, since they form part of atatutery law. Statutes often contain provisions which empower the responsible Ministers and other bodies, created by statutes, to make rules and regulations. These rules and regulations are also part of statutory law. 3.1.3 The Constitution ‘The constitution of a country regulates the organisation and structure of the state. It therefore indicates how 2 country should be governed, and how laws should be ‘promulgated, ie, be drawn up, debated, voted, adopted, published and come inte operation. To {fully understand the unique role that the Constitution plays as a source of South African law, itis imoortant to note its character and history. Page 5 (2) Parliamentary sovereignty When South Africs became 2 Republic in 1963, the cystem of government that had been introduced under Brith calonial rule, ie the Westminster |» system, remained in force. A very important aspect of the Westminster system was the principle of parliamentary sovereignty. This principle meant that the courts (judiciary) did not have the authority to invalidate legislation passed by Parliament. »)The courts, therefore, did not have the power to criticise legislation in order to strike it down. They could only strike it down on the grounds that it had been promulgated through a procedure that had been invalid. For example, the judiciary could not strike down law passed by Parliament an the grounds that the law itself was discriminatory; the judiciary could only interpret the law in ‘accordance with the intention of the legislator, that is, Parliament. Consequently, when Parliament passed racially discriminatory laws during the apartheid system, its Acts could not be challenged by ‘the courts. This, amongst other things, led to a creat deal of dissatisfaction amongst the majority of the population who were people of colour and eventually caused the struggle against apartheid. However, from early in the 199Cs all important role-players in South Africa committed to negetiate a new constitutional dispensation. (2) Constitutional supremacy Gn 27 April 1994 South Africa's Interim Constitution (>) came inte Farce. Some of its majer characteristics were its supremacy, =) and the inclusion of a chapter on fundamental human rights. = The Interim Constitution also provided for 2 consttution-making bedy (the National Assembly and the Senate) to drait 1» and adopt a final Constitution in accordance with the Interim Constitution, and the provisions of the Constitutional Prirciples attached to it. The Constitutional Court had to certify that the provisions of the proposed ‘new constitutional text complied with the Constitutional Principles before the final Constitution could become law. On the second attempt, the Constitutional Court certified the new constitutional text and South Africa's current Constitution came into force on 4 February 1997. ‘Aunique process was therefore followed to put South Africa's Constitution in place. It is the supreme law of the land, =) which ‘means that it is more important than ny other law because it prevails over them: law which is inconsistent with it is invalid and may be declared as such by the high courts, and confirmed by Page 6 ‘the Constitutional Court. The courts have therefore been empowered to rule on the constitutionality of al laws. (») Since the Constitution also contains a Bill of Rights, =») which promotes human dignity, equality and freedom, South Africans can rest assured ‘that the unjust legislation of the past will not surface again. 3.1.4 Case law Common law, statutory law and the Constitution are interpreted and applied by the courts during the adjudication of court cases. Since vFile Edit View Sock Window Help [| Chapter Introduction to South African law . 6[>] the Constitutional Court. The courts have therefore been empowered to rule on the constitutionality of all laws. () Since the a Constitution also contains a Bill of Rights, =) which promotes human dignity, equality and freedom, South Africans can rest assured ‘that the unjust legislation of the past will not surface again. 3.1.4 Case law Common law, statutory law and the Consttution are interpreted and applied by the courts during the adjudication of court cases. Since court judgments are recorded, ¢ separate source of law, namely case law, is created. Case law is an extremely valuable source of law due to the system of judicial precedent »» that applies in South Arica. This entails the existence of a hierarchy in the South African court system whereby the lower courts are bound by the decisions of the higher courts. (=: This means that when a higher court Interprets the law in 2 certain way, the lower courts have to folow that approach in future judgments. 3.1.5 Summary ‘The material sources highlight the essential nature of South African law and can by summarised as Fallows: + Common law that consists mainly of Roman-Dutch law with en Enalish law influence as eppied and acjusted by South African courts. + Statutory law or legislation enacted by Parliament in accordance with the democratic process provided by the Constitution to regulate South African society. +The Constitution, which is the supreme law of the country ~ all law or conduct has to be consistent with it. © Case law consisting of the court decisions that interpret the Constitution, common law and statutory provisions to fit the realities of the day. ‘The question now arises as to where a person, especially a police official, can read whet the law says. Looking at the historical development of South African law, one can gather that the law can be found in any source that accurately reflects the Constitution, the common law, statutory law and court decisions of this country. In this text the sources that supply this knowledge are referred to a5 knowledge or published sources of law. 3.2 Knowledge sources of law In order to find out what the law says, a police official may consult the fellowing publications: + Academic textbooks Law journals, Reported court cases Published statutes Government Gazettes ‘These publications are stored in the following places: ‘+ aw ibraries (2t Universities ané Magistrates’ Courts). Various websites on the Internet. ‘+ Acts of Parliament and regulations that arise from them, which are published in Government Gazettes available directly from the Government Printer in Pretona. = come magazines cuch ae Servamus and De Rebuz, which provide discustion and comment about new legislation and judicial reasoning. 4 Classification of South African law Having established the sources of South African law, one must now ascertain how the law is classified. Every country’s law is arranged into a certain logical system. In South Africa the law is classified into substantive and procedural lau, whilst the former is also divided into public and private law. 4.1 Substantive versus procedural law ‘Substantive law (also known as material law) determines the content of legal rules. ‘Substantive law’ therefore refers to legal rules ‘satting out the rights and duties of members of cociety and alco those of the state. >) Substantive law consicts of both ‘public’ ané ‘private’ law and includes, amonast others, the field of criminal law.File Edit View Sock Window Help [<] Chapter Introduction to South African law . 7] into a certain logical system. In South Africa the law is classified into substantive and procedural lav, whilst the former is also divided into public and private law. a 4.1 Substantive versus procedural law ‘Substantive law (also known as material law) determines the content of legal rules. ‘Substantive law’ therefore refers to legal rules ‘setting out the rights and duties of members of society and also those of the state. -») Substantive law consists of both ‘public’ and ‘private’ law and includes, amongst others, the field of criminal law. Procedural law (also known as formal or adjective law) consists of those rules and procedures needed to enforce the rules of substantive law. Therefore, the former acts as an auxiliary of the latter. Procedural law includes, amongst others, fields ike the law of minal procedure and the law of evidence. The purpose of procedural law can be likened to train tracks upon which the substantive law train is allowed to move forward te fulfil its purpose of regulating conduct to create harmony, peace and order in society. 4.2 Private versus public law Substantive law can be divided overall into private law and public lan. Private law regulates relationships between individuals on an cequel level, 28 subjects of the legal order. The private lew relationship is generelly based on consensus or agreement. Private lev covers such legal felés as the law of contract, the law of obligations, the law of succession, property law and the law of persons and family. 2 Public law determines the extent of state authority. It deals with the relationship between the state, as an authoritatve power, and the subjects of the state, a3 well az with the relationship between the different branches of state authority (such es the different government departments or ministries) and the relationships between different states internationally. >) In public law the state is always a party to the legal relatonship, acting wth authority. The relationship between the state and its subjects is therefore an Unequal one with the state in a superior position with regard to the individual, Public lew encompasses such legal fields es constitutional law, adminstrative law, intemational law and criminal law. 4.3 Police law I is very important that police officials have knowledge of certain aspects of public law, as they are functionaries of the state. Public law therefore regulates the oolice officals relationship with society. In addition, police offcials also have to take cognisance of two branches of the formal law — the law of criminal procedure and the law of evidence — since it prescribes the procedures to be followed by them in the lawful and effective performance of their duties. ‘As the powers end duties of police officials are prescribed by law, police officials will be applying certein areas of different legal fields, relating to theic powers and duties, in their daily actvities. ‘The applicable areas of these legal fields can be collectively referred to as police law, and include parts of the following branches of law: ‘+ Constitutional law: South Africa's Constitution is the supreme law of the country. The Constitution contains a Bill of Rights, which police officials have to consider when dealing with individuals. In addition, it prescribes the objects of the police Service. =) ‘+ Criminal law: The different forms of conduct that are punishable are described by criminal law, which also determines, the requirements for each offence (crime). As a crime is considered to be committed against socety, nat against the primary victim only, the state must prosecute and punish the perpetrator. Common-law offences o2 well as mes ‘eated by statutory law (lesisation) form part of crminal law. + Lawof criminal procedure: This branch of law contains the cules and procedure that govern criminal praceedings. Police officials ae vested with extensive powers during the pre-trial proceedings, for example, te search a person or premises, to seize certain articles and to arrest persons. + Lawof evidence: It cortains the rules that regulate the submission of evidence in @ court of law. Folice officials have to conduct investigations according to these rules to ensure that the evidence obtained is admissible in court. + Administrative law: Administrative law relevant to police officials since t regulates the actions and powers of state ‘organs, which include the South African Police Service (SAPS). In al instances where police officals have the power to a exerzse their discretion (ie, cheose what has to be done), they have to act justy. Just administrative action requiresPPI File Edit View Sock Window Help [| Chapter‘ introduction to South African law x [>] tolce oficals are vestes win extensive powers during tne pre-trial proceeaings, ror example, to searcn a person or premizee, to ceize certain articles and to arrest persone. B ‘+ Law of evidence: It contains the rules that regulate the submission of evidence in a court of law. Police officials have to conduct investigations according to these rules to ensure that the evidence obtaned is admissible in court. + Administrative law: Administrative law is relevant to police officals since it regulates the actions and powers of state ‘organs, which include the South African Police Service (SAPS). In all instances where police officals have the power to exercise their discretion (ie, choose what has to be done), they have to act Justy. Just administrative action requires that they adhere to rules of ‘natural justice’. These are certain rules that have come from common law and are new confirmed by cur Constitution. For example one of the rules of natural justice that comes from Roman law is audi elteram partem. It means ‘hear the other side’ and relates to the principle that in 2 dispute, both parties must get the ‘opportunity to put their case. In interpreting police law police officials are also assisted by internal policies and procedures to direct them when and how to use, their powers or perform their duties. Police policies and procedure are formulated by experts in the police to ensure that they are in ‘accordance with the lav. Examples of police policies and procedures are the following: ‘Police Regulations iscued by the Minister of Police in terms of the Police Service Act; ‘© Standing Orders and National Instructions issued by the National Commissioner; ‘+ Official letters from Police Head Office which contain guidelines or orders regarding the approach to and handling of specific situatone, 5 The role of law in a democracy 5.1 Rasic concepts and definitions Firstly, certain concepts need to be defined to ensure proper understanding. Terms such as ‘state’, ‘government’ and ‘democracy’ are regularly used, sometimes without realising the different meanings that can be attached to each. Page 10 5.1.1 State ‘According to Carpenter =) the concept of the atate’ entaile the exictence of a specific geographically defined territory with 2 community of people living within it. A legal order to which the community is subject needs to be in piace, as well as an organised system of government, which can uphold that legal order. The state also needs to have a separate political identity. However, the precise meaning of the state’ will depend on the context in which it appears; it is regularly used to refer to public authority, for example, prosecutions are instituted by the state. 5.1.2 Government ‘The government is the temporary bearer of the suthority of etate, or the political reprecentative of the state at a particular time. =» "Government! can, however, also refer to the act of governing (the executive function), for example, when reference is made to government departments that formulate and implement policy. 5.1.3 Democracy Democracy entails government by the people for the people. =) Democracy therefore implies that the people (the electorate) have the final say with regard to how they are to be gevemed. A central theme of democracy is representation: the people elect representatives {to gover them according to a mandat= which expresses the joint will of the people. Democracy also takes the wishes of minorities into accourt. 5.2 Characteristics of a democracy A democracy is usually recognised by an adherence to basic human rights princpples, including freedom of political activity and the full and equal enjoyment of all rights and freedoms. Factors contributing to achieving # democracy include concepts such as the rule of law, separation of powers and limited government. > 5.2.1 Rule of law ‘The rule of law firstly entails an absence of arbitrary () power. This means that no person is above the law, and persons can only be punished in accordance with the law. Secendly, it entails ecuality before the lam, resulting in equal protection andFile Edit View Sock Window Help [<| Chapter Introduction to South African law . 10[>] avon of powers ane imigea government. 5.2.1 Rule of law n ‘The rule of law firstly entails an absence of arbitrary () power. This means that no person is above the law, and persons can only be punished in accordance with the law. Secondly, it entails equality before the las, resulting in equal protection and benefit of the law. South Africa has a supreme Constitution with an entrenched Bill of Rights, which embodies the whole of the rule of, law for South Africa. 5.2.2 Separation of powers ‘According to the doctrine of the eeparation of powers, government authority is divided into three branches: ‘© Legislature (Parliament, which makes or amends laws). + Executive (the president, cabinet and government departments, who implement and enforce laws). + Judiciary (the courts, which deal mainly with legal disputes between citizene, the adjudication of crimes on behalf of the state, and the review of decsions taken by the executive). ‘The purpose of this doctrine is to prevent too great a concentration of power in the hands of any one branch of government, The doctrine entails that the abuse of power can be contained if there is @ balance of power between these three branches. |) For instance, if the judiciary is independent it can check on an abuse of power by the legislature or @ member of the executive. An independent judiciary is @ common feature in all democracies. 5.2.3 Limited government No democratic government has unlimited power. The government departments (executive) implement and enforce the laws of the country subject to various control mechanisms. ‘These control mechanisms include the establishment of certain state institutions supporting constitutional demecracy, \) eg, the Public Protector and the Human Richts Commission. These independent institutions act as ‘watchdogs’ to prevent abuse of powers. Another control mechanism is to hold elections every five years when citizers over the age of 18 years must elect 2 new government. 5.3. Legitimacy and police credibility During the greater part of the twentieth century South Africa's governments lacked lesitimacy, since nat all people were involved in the electoral process. Similarly, many saw the police as the upholders of apartheid, which led to @ lack of respect for police officals. Police officials are, however, the enforcers of the law and are, consequently, the custodians of the Constitution. It is therefore of the utmost importance that South Africa haa 2 credible Police Service. Police credibility is endangered by factors such as corruption, abuse of powers and behaviour of police officals thet is biased towards certain people. In order to enhance police credibility, the Constitution > provides for two independent mechanisms under civilian cortrol: a civilian ‘secretariat for the police service, and an independent police complaints kody. 5.3.1 Civilian Secretariat for Police Service In terms of s 208 of the Constitution a civilian secretariat for the police service must be established by national le done with the enactment of the Civilian Secretariat for Police Service Act 2 of 2011. ‘The functions of the Civilian Secretariat are mandatory, which means that it must do the following: (=) (a) monitor the performance of the police service and regularly assess the extent to which the police service has adequate policies and effective systems and to recommend corrective measures; (6) monitor the utlisation of the budget of the police service te ensure compliance with any policy directives or instructions of the Minister; (ce) monttor and evaluate compliance with the Domestic Violence Act 116 of 1998; (a make recommendations to the police service on disciplinary procedures and measures with regard to non-compliance with the Domestic Violence Act, 1998; (2) consider such recommendations, suggestions and requests concerning palice and policing matters as it may receive v from any source;File Edit View Sock Window Help [&] chapter1 Introduction to South Afican low E (b) monitor the utilisation of the budget of the police service to ensure compliance with any policy directives or instructions orahe raster (q)_ monitor and evaluate compliance with the Domestic Violence Act 116 of 199% (make recommendations to the police service on disciplinary procedures and measures with regard to non-compliance with the Domestic Violence Act, 1998; (2) concider cuch recommendations, suggestions and requests conceming police and policing matters as it may recei from any source; () conduct or cause to be conducted any research as it may deem necessary; (g) enter into either memoranda of understanding or agreements or both, in consultation with the Minister, with cvilian ‘oversight groups and other parties and engace such groups and parties to strengthen co-operation between the varicus role-players; (h) advise and support the Minister in the exercise of his/her powers and the performance of his/her functions; G) provide the Minister with regular reports with regard to— (i) the performance of the police service; and Gil) implementation of and compliance by the police service with policy directives issued or instructions made by the Minister; and () assess and monitor the police service's ability to receive and deal with complaints against its members. 5.3.2 Independent Police Investigative Directorate (IPID) ‘The IPID was established in terms of the Independent Police Investigative Directorate Act 1 of 2011 ("IFID Act). The objectives of the PID include to ensure independent oversight of the SAPS and Municipal Police Services; to provide for Page 13 independent and impartial investigation of identified offences allegedly committed by members of the said Services and to enhance ‘accountability and transparency by the said Services in accordance with the principles of the Corstituticn. ‘The tyne of matters that must he investigated by the IPID are: (2) deaths in police custody; (®) deaths as 2 result of police actions; ()_ any complaint relating to the discharge of an official firearm by ary police official; (a) rape by a police official, whether he/she was on duty or not; (e) rape of any person while that persan is in police custody; (P__ any complaint of torture or assault against a police official in the execution of his/her duties; (g) certain cortuption matters within the police; and (A) any other matier referred to it. <9 ‘According to 5 26(2) of the IPID Act, the Directorate may investigate maiters relating to systemic corruption involving the police. 5.4 The Criminal Justice System ‘The criminal justice system is a formal structure that consists of the state departments responsible for bringing suspected criminals to justice. The main role-players are the departments of Police, Justice end Correctional Services. The criminel justice system can only Function propery if these role-players work together effectively. A properiy functioning criminal justice system is thus dependent on— + dedicated palice officials who are able to thoroughiy investigate all cases, correctly collect evidence, identify perpetrators and bring them before court, + sklled prosecutors whe ensure that fair trials are held resulting in accurate judaments by the courts, and ‘+ secure prisons where convicted persons are accommedated and rehabilitated. [1]. Censtiution ofthe Republic of Seuth Afi, 1996 ~ refered toas ‘the Consitution'. [2] See 5 205(2) ofthe Constitution. [3] The meaning ofthis concepe il be eae wth in more decal in 2ars 3 ofthis chapter. (2) Hester, W) Edvarcs, #3, Seaman, F& Church J Intraducton > South African Lav and Lagal Theory ed (Butarworths 1985) 21, [5] ‘determinant authori is «person or insturion thathas receved the power tomate es, eg Pariamen:. [6] KleyryD 8 ijn, F Beginner’ Guide for Law Students 4 ed (Ita 2020) at 2. 17] See ch2 of the Constitution.File Edit View Sock Window Help [| chapter itoducionto South Aan ow - 8p (g) certain corruption matters within the police; and sera coruaton mater thn 5 According to s 28(2) of the IPID Act, the Directorate may investigate matters relating to systemic corrupticn involving the police. 5.4 The Criminal Justice System ‘The criminal justice system is a formal structure that consists of the state departments responsible for bringing suspected criminals to justice. The main role-players are the departments of Police, Justice and Correctional Services. The criminal justice system can only function propery if these role-players work together effectively. A properiy functioning criminal justice system is thus dependent on— + “dedicated police officials whe are able te thoroughly investigate all cases, correctly collect evi bring them before court, skilled prosecutors who ensure that fair trials are held resulting in accurate judgments by the courts, and secure prisons where convicted persons are accommedated and rehabilitated. nce, identify perpetrators and (2) insane apes Sach a, 1986 ~ nla oa he {2 eeasoaiyeenecommnzon (2) he rnegston crepe thin mre alin [E) Rive WR. i Baan fa Sr con Saat tm tn Lp! Thy 2 ura 1985) [3) A Gacminenshorinsgoronor aon erhercerede orto ale ne op fohema (5) fro evan F npr Gd Law Suse 42010), [7] See ch2 ofthe Constitution, [8] leon ac dns ote lca of tan ue spt co ior. (5) fara tl epenconcl ox woof Ssh cn allan, ne Burcu Pocor fcr eo 208 9-8 [. “ena Won ace, LE NEA tap Landen he ich oun of aman ad npaan severance ed [2 Grpeua €nadcln Sach an Cnn Basra 9) {5 Garmin o renee of So Aen, sr 0 150 roe rn Cmts [ie Seensel hermnen cose US GhapacSofte unm omen {is The pap anu srs were ar ive ata uti tn te pron thane canon te aan) (> Shem Comer nem carson iS Stewmastee cman {iS Seesse7o) woweomasee, [20 Ghaner zor Case [2 oto te deine aed, Sed come fre te an ngage ih th Rana nd ras sandy teary daa EE Mo dtomecoo en Soawselch tone (5 dnysan RC ld evan 08 a3, 25, sblnana dei cpa wd lc esi foram doe thr punter papa Te ‘Seetbe Sngetelgs al ehsdtnchend mike’: Saya ke rar Sango ws GS cen bathe ad SEES seal Sa cae a oes SG egw le aged Pc on Spano Sh SSRIS Sec MS 5" Seanad. [Se Seon fn conman se 2 bal {5>esnah shcanbon Seis the 18~faradi eh lenin. Gaeta (Caprese {50 me Wdrosrae Lav und 96 Cnn? (anim aro 008) 8, 2 Renee [E_teoer eave aul gope pel pone anatng conn eh henge alpen se Thea dard 8 Secwat te ae sea ey comes thSe ayTerress ny pores na onl ec) Bndon el Sema ape, (Se ype te erin poverin mere campy thas le ad nn 5 dima 55 Secon cenecomtn [o> Seaton tee moped [5 eestedtmecvan Scr olen Servi de [Settee ce {ie Seton) cnet a vFie Edt View Book Window Hep [| Chapter2 Policing powers and responsibilities, . 14[>] Page 14 a Chapter 2 Policing powers and responsibilities 1 Introduction ‘The establishment and objects of the police service as well as all policing powers and responsibilities are rooted in the law, and therefore regulated by legal provisions. In this chapter the founding provisions of the South African Police Service and the sources of policing powers will be discussed. The role of the Constitution, |») with specific reference to the influence of the Bill of Rights =) on policing powers, will also be addressed. To conclude, reference will he made to the forms of liabilty that can be encountered by police officals for wrongful police action. 2 Founding provisions Section 199 of the Conatitution provides for the establishment of the security services of the Republic including a single poli This isin line with the earlier requirement, contained in the Interim Constitution, that a South African Police Service (SAPS) be established and regulated by an Act of Parliament. | This requirement was met with the enactment of the Polce Service Act, = which repealed the former Police Act. ©) In terms of s 205(3) of the Constitution, the objects of the SAPS are to— ‘+ prevent, combat and investigate crme; ‘© maintain public order; ‘+ protect and secure the inhabitants of the Republic and their property; and + uphold and enforce the law. ‘These objects corresponé to a large extent with the powers and functions set out in the Interim Constitution, | as well 2s with those originally provided for in s 5 of the Page 15 former Police Act. It is, however, important to nete that the objects of the SAPS now form part of the supreme law of the land and are not, as in the past, merely embodied in an ordinary Act of Parliament. The authonsation to police is therefore put on an equal footing with the rights of individuals. 3 Sources of policing powers Although the broad authorisation to police is contained in the Constitution, the specific policing powers, functions and duties are found in ordinary legislation. This is recognised in = 205(2) of the Constitution, which required the enactment of rational legislation to establish the powers and functions of the SAPS and to enable the SAPS to discharge its responsibilities effectively. Statutes such as the Police Service Act and the Criminal Procedure Act (CPA) «give effect to this requirement, as well as various other pieces of legislation thot provide for specific policing powers, functions end duties. ») 3.1 The Police Service Act ‘The purpose of the Police Service Act is to provide for the establishment, organisation, regulation and control of the SAPS. The preamble to the Act expresses the need fer a police service which— (3) ensures the safety and security cf all persons in the national territory; (2) upholds and safeguards the rights of every person as guaranteed by the Constitution; (©) ensures co-operation with the communities it serves in combating crime; (2) reflects respect for victims of crime and an understanding of their needs; and] (2) functions under effective dvilian supervision.File Edit View Sock Window Help [< | Chapter2 Policing powers and responsibilities ~ 15[}] wee co the Ace expresses the feed for a police service wicn— (2) ensures the tafety and security of all persone in the national territory: 5 (2) upholds and safeguards the rights of every person as guaranteed by the Constitution; (©) _ ensures co-operation with the communities it serves in combating crime; (2). reflects respect for victims of crime and an understanding of their neecs; and] (2) functions under effective dvilian supervision. ‘Three aspects that are addressed in the Police Service Act need to be highlighted, namely— + powers, duties and functions of members; ‘+ tegulations and code of conduct; and © orders and instructions. 3.1.4 Powers, duties and functions of members Policing power is often characterised by the fact that it infringes someone's constitutional rights. Although the majority of pelicing powers are contained in the CPA and other legislation, s 13 of the Police Service Act introduces certain principles that form the backdrop against which members must exercse any powers, duties and functions conferred en them by law. These principles therefore have a definite impact on the manner in which police officials must approach policing. Page 16 (2) Constitutional supremacy and rights of individuals Section 13(1) 10) confirms that police officals may exercise the powers and perform the duties and functions conferred on or assigned to them by law. However, this may only be done subject to the Constitution and with due regard to the fundamental rights of every person. This means that police officials are obliged to always take the provisions of the Constitution, especially the rghts of individuals, into consideration when they are autiorised to use their powers. (:: Therefore, when a police official is authorised by law to act in a manner that may threaten or infringe the rights of individuals, he or she must act in the least intruding manner possible. Since the majority af policing powers only confer a discretion te act, (~) this requirement compels police officials to carefully consider and evaluate the impact of their powers on individuals. Adherence to this requirement will therefore reduce the usually harsh effect of policing powers. For example, a person who is net dangerous should be arrested as a last resort only if none of the other metheds will ‘secure his/her attendance in court. (9) (2) Reasonableness and proportionality Section 13(3) contains certain provisions that emphasise reascnableness as a measure for action. In terms of para (¢), () police officals must perform official duties with due regard to their powers, duties and functions in a manner that is reasonable in the ‘circumstances. (=) Again police officials must assess all the crcumstances before commencing with any action. Police officals should therefore ask themselves what the least harmful acton would be that would serve the purpose of the relevant power. For example, if at 2 roadblock a person is found in possession of a aowder-like substance, and such person gives a reasonable explanaton of his possession and claims that it contains nothing illegal, the police official may be advised, if such person has a fixed address, only to ‘seize the substance and send it to the laboratory, instead of arresting the person at once. Furthermore, para (8) =) states that police officials who are authorised by law to use force in performing an officiel duty may use only the jum force that is reasonable in the circumstances. The reference to ‘minimum force’ in this earaaraph reflects the principle of proportionality. Proportional action means that Page 17 the action must be weighed against the purpese it will serve; therefore it should be in relation to the purpose and not be mere harmful ‘than necessary. 3.1.2 Regulations and Code of Conduct In terms of s 24 of the Police Service Act the Minister may make regulations regarding various aspects, such as recruitment, promotion and transfer of members; general management of the Service; labour relations; and discipline. || The regulations centain specific detail regarding procedures and are binding on members. Regulatons are promulgsted through a formal process and should be regarded as an extension of the provisions of the Act. 1») The Police Service Act also provides for the Minister to issue a Code of Conduct for the Service. (=| During 1997 a Code of Conduct y was announced in the Government Gazette. ») According to this Code, police officials commit themselves to the creation of a safe andFie Edt View Book Window Hep [| Chapter2 Policing powers and responsibilities, . 77>] In terms of s 24 of the Police Service Act the Minister may make regulations regarding various aspects, such as recruitment, promotion and transfer of members; general management of the Service; labour relations; and discipline. |”. The regulations contain specific detail regarding procedures and are binding on members. Regulatons are promulgated through a formal process and should be regarded as an extension of the provisions of the Act. ‘The Police Service Act also provides for the Minister to issue a Code of Conduct for the Service. \) During 1997 a Code of Conduct was announced in the Government Gazette. 0) According to this Code, police officials commit themselves to the creation of a safe and ‘secure environment for all the people in South Africa. In realisation of this commitment they, amongst other things, pledge to uphold ‘the Constitution and the law. In addition, they also undertake to— ‘uphold and protect the fundamental rights of every person; and + exerese the powers conferrec upon them in a responsible and controlled manner. 3.1.3 Orders and instructions Secton 25 of the Police Service Act authorises the National Commissioner to issue National Orders and Instructions regarding matters \which fall within hig/her responsibilty, or which are conducive to the maintenance of an impartial, accountable, transparent and efficent poiice service, or to provide fer uniform standards of policing at all levels. These orders and instructions are on the same footing as the Standing Orders and are applicable to all members. Provincial Commissioners may also issue provincial orders and instructions that will only be applicable to members under their command. >) These orders and instructions, however, should be consistent with the Police Service Act as well as with the National Orders and Instructions. 2.2 Criminal Procedure Act ‘The Criminal Procedure Act (CPA) provides far procedures and related matters in criminal proceedings. The CPA therefore regulates the criminal justice process. = Page 18 ‘The criminal justice process can be divided into four stages: + pre-trial; = the tril © sentencng: ‘+ remedies after judgment and sentencing. Police olficials play a role mainly in the pre-trial process because of the nature of their powers and functions. The CPA prescribes procedures relating to, for instance, the obtaining of evidence, methods of securing the attendance of an accused in court and the ‘ranting of bail. Police officials are awarded far-reaching powers and authority for these purposes by the CPA, such as searching a person or premises, seizing certain artcles, arresting a person and even using force in order to exercise their powers, “Although the provisions of the CPA that are important for police officials will be discussed broadly under relevant themes below, the following general aspects, which often cause confusion, must be addressed in this introductory section: exercise of discretion; reasonableness requirement; limitation of powers; certain definitions; schedules 3.2.1. Discretion Where legislation, such as the CPA, confers powers on police officials, it is vital to determine the nature of these powers, ie, whether they are "peremptory’ or ‘directive’. 'Peremptory’ provisions use commanding words like the police offcial ‘shall’ or ‘must’. ‘These provisions indicate thet a police official is compelled to act; he/she has ne choice. ‘Directive’ provisions use words such as ‘can’ and ‘may’. These provisions give the police official a discretion: the official may choose between exercising the powers concerned or using an alternative (usually milder) method. When a discretion is granted, the police official exercising that discretion must be familiar with all possible alternative actions. He/she must carefully consider all the different options and try as far as possible to prevent infringing the rights Y tindiciduale. Thee will cnetee that the malice official meanerly ommlice hicfeee wind te the matter For evannle. comunee n peerPPI File Edit View Sock Window Help [| Chapter2 Policing powers and responsibilities ~ 18[>] whether they are peremptory’ or ‘directive’. Peremptory’ provisions use commanding words ike the police official ‘shall’ or ‘must’ ‘These provisions indicate that a police official is compelled to ect; he/she has no choice, Directive" provisions use words such as ‘can’ and ‘may’. These provisions give the police official a diecretion: the oficial may chaose between exercising the powers, concemed or using an alternative (usually milder) method. When a discretion is granted, the police official exercising that discretion must be familiar with all possible alternative actions. He/she must carefully consider all the different options and try as far as possible to prevent infringing the rights of individuals. This wll ensure thet the police oficial properly applies his/her mind to the matter. For example, suppose a person known to a police official commits 2 minor offence in the oficil's presence. If such person has been residing at the same place for several years, the police official should not arrest him/her but rather secure his/her presence in court by means of 8 summcns. Page 19 3.2.2 Reasonableness requirement ‘The CPA often subjects police officials, who have the authority to infringe the rights of individuals, eg, by searching them, to a reasonableness requirement. For example, the provision may say that a police official must have ‘reasonable crounds’ for forming certein belief; or have a reasonable suspicior’ that « crime has been committed; or use force because it is'reasonably necessary’. ‘According to Joubert =| the reasonableness requirement means that there must be reasonable grounds from which certain inferences (ie, conclusions) can be drawn. If a police official reasonably’ suspects that a person has committed a crime, this imolies that the grounds upon which his/her belief is founded are reasonable. In this regard, the word ‘grounds’ refers to facts. The existence of facts ig established objectively through the five senses, ic, secing, hearing, smeling, touching and tasting. A police oificial can claim that there are ‘reasonable grounds’ only if— + he/she really believes or suspects i + the belief or suspicion is based on grounds (facts); and ‘© any reasonable pelice official in the same circumstances and with knowledge of the same facts would have held the same belief or suspicion. 3.2.3. Limitation of powers ‘The CPA places strict limitations on the circumstances in which the policing powers that it confers may be exercised. This means that police officials may exercise a power conferred by a particular section on\y if their actions meet certain requirements and/or if certain crcumstances apply. Before South Africa's current constitutional dispensation, the rights of individuals were largely protected by these Inherent limitations. Section 22 of the CPA is a good example af this. This section provides that police official may Search @ person who ie not under arrect without 2 search warrant only if he/she— ‘+ either obtains that person's consent to be searched; or ‘+ has reasonable grounds to believe that 2 search warrant will be issued to him/her in terms of s 21(1)(s) of the CPA if he/she were to apply for it, but that the delay in obtaining the warrant would defeat the object of the search. If this person dos nct consent ta the search, and the palice official does not have reasonable grounds for believing that a warrant will be issued to him/her, then any search conducted will be unlawful, and such police offical will be committing an offence. 3.2.4 Definitions To ensure proper interpretation of legislation, Acts of Parliament usually contain lists of definitions. When studying the provisions in an Act itis essential to find out whether the terms or words used in the section are included in a list of definitions elsewhere in the Act. This is extremely important, because the definitions determine the exact meaning to be attached to the terms or words in the section. ‘The meaning of the section kself will therefore be affected. ‘The following terms that are defined in 5 1 of the CPA, are vitally important to police officials: ‘+ “premises' includes land, any building or structure, or any vehicle, conveyance, ship, boat or aircraft; ‘+ ‘Justice’ means 2 person who is a justice of the peace in terms of the Justices of the Peace and Commissioners of Oaths Act. = Holders of the following offices are justices of the peace: commissioned officers in the SAPS, National Defence Force and Correctional Services: directors of public prosecutions and their senior staff; registrars and magistrates; =») and + ‘peace officer’ incudes any magistrate, justice of the peace, police official and member of the Department of Correctional Services and any peace officer appointed in terms of s 334 cf the CPA. =) 3.2.5 SchedulesFile Edit View Sock Window Help [<] Chapter? Policing powers and responsibilities ~ 20[>] ‘+ SJustice’ means a person whois a justice of the peace in terms of the Justices ofthe Peace and Commissioners of Oaths Act. Folders ofthe following offices are justices of the peace: commissioned officers in the SAPS, National Defence Force and a Cerrectional Services; directors of public prosecutions and their serior staff; registrars and magistrates; 2) and © ‘peace officer’ includes any magistrate, justice of the peace, police official and member of the Department of Correctional Services and any peace officer appointed in terms of s 334 cf the CPA. =) 3.2.5 Schedules ‘At present the CPA contains seven schedules. Apart from Schedule 4, which lists the Acts repealed by the CPA, all other schedules cconciat of different combinatone of offencee, which are grouped together and relate to apecific cections in the CPA. The combination of offences in Sch 1, for example, is relevant to ss 40, 42 and 49 only. ‘The schedules serve two purposes: firstly, they prevent clumsiness in the text of the sections concerned and, secondly, they save ‘space. If, for instance, Sch 1 did not exist, all the offences listed there would have to be includec in the text of each of ss 40, 42 and 49, causing it to be long and disjointed. Although certain offences are listed in more than one schedule, the combination of offences is important, since the particular offences have been grouped together for purposes of specific sections in the CPA that are noted in the schedule. Each schedule therefore has a unique character and has a bearing only on the specific sections indicated. Page 21 2.2 Other legislation Although the majcrity of policing powers are found in the CPA and the Police Service Act, various other statutes also confer specific powers on police officials. Examples in this regard are the Drugs and Drug Trafficking Act, =) the Firearms Control Act (2) and the Children's Act. =) An exemple of legislation that also places certain duties on police officials is the Domestic Violence Act. =) ‘Various statutes therefore empower police officials to act — a fact that is recognised by the CPA =) and the Police Service Act.) During the interpretation of this empowering legislation it is important to keep the same general aspects in mind that were referred to above in the discussion on the CPA, namely the exercise of discretion, the reasonableness requirement, inherent limitations and definitions. (=) 4 Influence of the Constitution on policing powers A distinct feature of South Africa's Constitution is the inclusion of a Bil of Rights that entrenches the fundamental rights of every person. Section 7(2) of the Constitution places an obligation on the state to respect, protect, promote and fulfil these Fights of individuals. As executive officials of the state, ©») and as 2 result of the potentially harmful nature of their work, police officals should take specal notice of this obligation. The Police Service Act (=) also recognises this principle and, therefore, throughout this book reference will be made to the relevant rights of indivduals. However, in order to understand the relation between policing powers and individual rights, three provisions in the Bill of Rights are very sianficant and need to be addressed first, namely— © the limitation clause; © the exclusionary rule; and © the right to just administrative action, 4.1 Limitation clause 1 Introduction At first glance, the Bill of Rights appears to conflict directly with various policing powers. For example, every person has the right to privacy, which expressly includes Page 22 the right not to have their person or home searched, (s:/ At the same time, however, the police have various powers to search in terms of the CPA and other legislation. Since the Consttution is the supreme law, it appears that the Bill of Rights seriously restricts policing powers. However, such an interpretation loses sight of the fact that the objects of the SAPS are also contained in the Constitution. 2) Therefore, it seems that the Constitution contains corflicting provisons — how can crime be investigated without, for instance, infringing a persor’s right to brivzev? A solution to this apparent orablem can be found in the orinciple that virtually no right is absolute. .- This means that mostFie Edt View Book Window Hep |<] Chapter2 Policing powers and responsibilities, -| 2p) ‘the right nat te have their person or home searched. |: At the same time, however, the police have various powers to search in terms of the CPA and other legislation, Since the Constitution is the supreme law, it appears that the Bill of Rights seriously restricts policing powers. However, such an interpretation loses sight of the fact that the objects of the SAPS are also contained in the Constitution. =) Therefore, it seems that the Constitution contains corflcting provisons — how can crime be investigated without, for instance, infringing a person's right to privacy? A solution to this apparent problem can be found in the principle that virtually no right is absolute. (= This means that most Fights may be lawfully limited at scme time and in certain circumstances. This principle is confirmed by the inclusion of a limitation Cause |) in the Bil of Rights. 4.1.2 Lawful limitation of rights In terms of = 36(2) of the Constitution, the rights in the Bill of Rights may be lawfully limited only i the limitation ia— ‘© contained in law of general application; and + reasonable; and ‘+ justifiable in an open and democratic society based on human dignity, equality and freedom. (2) Law of geners! aoplication This first requirement means that 2 valid limitation of a right must be contained either in common law or in lesislation. For example, 2 person who defends herself during an unlawful armed attack and has to kill the assailant in the process is acting in private defence. The limitation of the assaiant’s right to life «= will be lawful because private defence is a ground of justification in terms of the common law. (oo) The restrictive legal rule may, however, not be discriminatory but must be applicable to everyone. (2) Reasonable In the case of S v Makwanyane and Another .\ the Constitutional Court found that the reasonableness of the limitation of a right must be determined on the basis of the principle of proportionality. This means that competing interests must be weighed against each other In order to strike 2 balance, and the degree to, and manner in which, the right i limited must be proportionate to the purpese of the limitation. Page 23 Section 26(2) of the Constitution contains a list of factors to be considered in this weighing process: Mature of the right; Importance of the purpose of the limitation; Mature and extent of the limitation; Relation between the limitaton and its purpose; Whether there are less restrictive means to achieve the purpose. Usually when the constitutionality of a legal provision is disputed, the court will concern itself primanly with the reascnableness of the restriction. In other words, is the limitation of the relevant right reasonable and thus propartianal? In determining this, the court will weigh up the above-mentioned factors. (©) Justifibility ‘The limitation clause furthermore requires the limitation to be justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation must therefore not be in conflict with these values. Other well-known open and democratic ‘societies, such as the USA, Canada and Western European countries, can be used as a measure to determine whethe- the limitation is justifiable. Since the police in these countries also have general policing powers, eg, to arrest and search, there is no doubt that itis in principle justifiable to limit individual rghts under certain circumstances. 4.1.3 Concluding remarks Most requirements that inherently limit the statutory policing powers are such that the infringement of the individual's rights will be regarded as reasonable. If the prescribed requirements are properly complied with, the individual's rights will not be considered as being violated, but merely lawfully limited. However, police offcials must be aware that because of the emphasis that the Constitution places on the rights of individuals, the courts will be very strict in assessing police actions and the slightest deviation from prescribed Fules may have severe consequences for the police officals concerned. vPa Fie Edt View Book Window Hep [| Chapter2 Policing powers and responsibilities -| 3D) 3. Concluding remarks Most requirements that inherently limit the statutory policing powers are such that the infringement of the individual's rights will be regarded as reasonable. If the prescribed requirements are properly complied with, the individual's rights will not be considered as being violated, but merely lawfully limited. However, police offcials must be aware that because of the emphasis that the Constitution places on the rights of individuals, the courts will be very strict in assessing police actions and the slightest deviation from prescribed Fules may have severe consequences for the police officals concerned. It is clear that, as 2 result of the limitation clause, police offcials retain the policing powers they possessed before the present constitutional dispensation. Therefore, the perception that the criminals currently have all the rights, whereas the hands of police officals are tied, is largely unfounded. What has changed, however, is the fact that individuals are nowadays much more aware of their rghts. Consequently, police officials will not easily ‘get away’ with unlawful conduct. 4.2. Exclusionary rule 3) Although unlawful police conduct could always have resulted in criminal, civil and departmental prosecution of the police officials concerned, =» an additional Page 24 consequence has now been created by s 35(5) of the Constitution. In terms of this subsection evidence obtained in a manner that Violates any right in the Bill of Rights may be excluded at the trial, Therefore, by using wrongful tactics, police officials run the edditional risk of ellowing criminals to walk free, because the evidence obtained in this menner might not be admissible in court, 4.3. Right to just administrative action ‘Just administrative action’ implies administrative action that is lawful, reasonable and procedurally fair. =» The Promotion of Administrative Justice Act (PAJA) =.) was promulgated to give effect to this right. =) As the SAPS is an organ of state, =) the actions, of police officials are regarded as administrative acts that are subject to the cules of administrative law. Administrative law regulates the organisation, powers and actiors of the state administration (executive organs of state). =) Since everyone has the right to just administrative action, > itis important for police officals to note the possible implications of this additional right, especially in the case of discretionary police action. 1 Administrative action Administrative action is defined in PAJA and includes any decision taken, or any failure to take a decision, by an organ of state, when exercising a public power or performing a public function in terms of any legislation, which adversely affects the rights of any person and which has a direct, external legal effect. = There can thus be no doubt that exercising statutory policing powers, such as the decision to search, seize or arrest, will be regarded ac administrative action. .2. Procedurally fair administrative action According to © 3(1) of PAIA administrative action that materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. A fundamental requirement for fair administrative action is that the person affected by it must be granted the opportunity to state his/her case. This requirement is aiso known as the audi alteram partem pnnciple, which is embodied in the comman- aw rules of natural justice. = Compliance with these rules of natural justice during the exercise of discretionary powers will ensure that @ police official properly applies his/her mind to the matter. = ‘The audi elteram partem princple briefiy means that 2 person whose riahts, privileges or freedoms are affected by the actions of 2 police official— ‘+ must be given the opportunity to state his/her side of the case; ‘= must be informed of possible prejudicial facts and considerations in order to defend him/herself against them; and ‘+ is entitled to be given reasons. =») .3 Judicial review Section 6(2) of PAIA provides for the judicial review of administrative action. This means that 2 court will consider whether the administrative acton taken by 2n organ of state was justified; if not, it may overturn the decision or set it aside and refer it back to the organ of state for reconsideration. However, a unique characteristic of most police actions, compared to administrative action by other \y organs of state, is the irreversibility thereof. The nature of many police actions is such that once it is taken, the damage has,Fie Edt View Book Window Hep [| Chapter2 Policing powers and responsibilities, -| 3[P] 1 J 4.3.3. Judicial review a Section 6(2) of PAIA provides for the judicial review of administrative action. This means that 2 court will consider whether the administrative action taken by an organ of state was justified; if not, it may overturn the decision or set it aside and refer it back to the organ of state for reconsideration. However, a unique characteristic of most police actions, compared to administrative action by other organs of state, is the irreversibility thereof. The nature of many police actions is such that once it is taken, the damage has been done. (= For example, when a person is searched, his/her right to privacy is immediately infringed. Therefore; it will not make much sense for a court to overturn that decision, whereas the refusal of a liquor licence by the Liquer Board may well be rectified by @ court. Although decisions by police officials cannot always be overturned, an unlawful decision may lead to criminal or civil liability; (<2) consequently, s 6(2) of PAJA contains valuable guidelines for police officials to ensure that they exercise their discretion in a lawful manner. When lecislation grants a discretion to 2 pclice official to act, he/she must apply his/her mind to the matter. Failure to apply his/her mind will be evident where it can be proved that in exercising the discretion the police official, for example, acted in bad faith (male fice), acted in order to achieve an improper purpose, or acted as e result of unwarrented adherence to @ fixed principle. (= Principles that existed under the common law have now been included in PAJA: (=) a court may review administrative action if the action was teken— ‘© for reason not authorised by the empowering provision; ‘+ for an ulterior purpose or motive; + because irrelevant considerations were taken into account or relevant considerations were not considered; + because of the unauthorised or unwarranted dictates of another parson or body: Page 26 + in bad faith; or + arbitrary or capriciously (ie, without proper reasons). Furthermore, administrative action may also be judicially reviewed if the action itself contravenes a law, or is not authorised by the empowering provision, =) or is nat ratonally connected to— the purpose for which it was taken; the purpose of the empowering provision; + the information before the offccial; or © the reasons given for it by the official. =) ‘The requirement that the action must be raticnally connected to the above-mentioned factors entails that police officials must always be able to justify their actions. 4 Practical application In order to ensure the lawful exercise of discretion, a police official who suspects a person of having committed, #3, fraud, must take the following steps: ‘first analyse the evidence to ensure that the suspicion is reasonable; = then inform such persen of this cuspicion, warn him/her of the right to remain cilent and give him/her the opportunity to exculpate (excuse) him/herself; = carefully consider the suspect's explanation before deciding upon the appropriate course of action. (~ ‘This approach will enable the police official nct only to test his/her suspicion, but aiso to determine whether there is justfication for an arrest without a warrant. If the suspect is indeed arrested, the police official must inform him/her of the reason fer the arrest. (=) 5 Liability for wrongful police action Police officials are not above the law. They may act only within the powers conferred on them by legislation ard common law. ‘wrongful police action’ refers to acts performed by police officials that may be penalised by the law or disciplined by the ‘SAPS. The nature ofthe sanction (oeralty) that may be incurred depends on whether the act constitutes a crime, a delict =» or misconduct. Ifa crime has been committed, the punishment may corsist of mprisanment of a fine. If delict has been committed, the guilty party may be ordered to pay compensation to thePPI File Edit View Sock Window Help [| Chapter2 Policing powers and responsibilities ~ 26|>] 5 Liability for wrongful police action Police officials are not above the law. They may act only within the powers conferred on them by legislation ard common law. "wrongful police action’ refers to acts performed by police officials that may be penalised by the law or disciplined by the SAPS. The nature of the sanction (oeralty) that may be incurred depends on whether the act constitutes a crime, a delict = or misconduct. Ifa crime has been committed, the punishmert may corsist of mprisonment or a fine. Ifa delict has been committed, the guilty party may be ordered to pay compensation to the Page 27 prejudiced person. Misconduct may lead to discharge from the SAPS. The state or the police offi Tiable for any loss or damage arising from wrongful police action. Is themselves may be held 5.1 State liability =) ‘The liability of the state is based on the provisions of s 1 of the State Liability Act. >) The state is vicariously) responsible for the wrongful conduct (delicts) ofits offcials. Before the state incurs liabilty, it must be established whether the delict was committed by = servant (employee) of the state and whether that servant was acting within the scope of his/her employment. =) ‘The courte view ~ of the first requirement ie that police officials are servants of the state and that the atste ic therefore liable for all the delicts committed by police officials within the scope of their employment. ‘According to the second requirement, the state can be held liable only ifthe delict was committed while the police official acted within the scope of his/her employmert. The state can therefore avoid being held liable if it can be proved that the police official performed duties of 2 personal nature in the sense that no control could be exercised over him/her. ~ In the Minister van Polisie v Gamble “case the Appellate Division (as it was then called) found that a police offical is always under the command, supervision and control of his/her superiars, and thus under the control of the state, when performing police work. It should also be noteé that wrongful pelice action may consist of 2 failure to act reasonably when there is 2 legal duty to act positively. =) In Minizter van Polisio v Ewelz \~) the atate was held delictually liable for the falure of police officals to assist a person who was assaulted by a colleague (who was off duty) in their presence. The Supreme Court cf Appeal also held in Minister of Safety & Security v Van Duivenboden |= that there is @ positive duty on the police to take reasonable steps to act on information in order to avoid harm occurring to an individual. ‘The state may even be held liable where a police official acts wrongful while he/she is off-duty, provided that a sufficiently close link is established between the misconduct and the perpetrator’s employment as police offcial. In F v Minister of Safety and Security and ‘the Constitutional Court held that state liability must ultimately depend on the cumulative weight of the factors pointing to Page 28 required link and not on distinctions between omission/commission and on duty/off duty. ity 5.2 Personal Ii Police officials may be held personally liable for wrongful action in three ways: ‘© members will be criminally lable if their action constitutes a crime; + fa delict ic committed fer which the state is held liable, the SAPS may, in certain circumstances, recover al relevant ‘expenses incurred from the member concerned: ‘+ the SAPS may institute disciolinary proceedings against the member. ‘The nature of the wrongful police action will determine the way(s) in which the member is held lable. Note, however, that the three ways are not mutually exclusive, and they may be connected, eg, a police official that has committed a crime may also b= subjected to disciplinary proceedings as well as recovery of expenses by the SAPS in the case of a claim against the state based on delictual liability. »© although an accused's guilt in @ criminal case must be proved beyond a reasonable doubt, the burden of proof in vil cases and departmental hearings ic based merely on a balance of probabilities. This means that a police official who, for instance, is acquitted in the criminal case may be found guilty of misconduct in a departmental hearing. 5.2.1. Criminal liability Police officials may be convicted for the commission of all cimes, regardiess of whether they were on or off duty at the time. Ifthe crime has no relaton at all to police work, the member cannot rely on protection from the state, ie defence at state's expense. Police