INTRODUCTIO TO

SOUTH AFRICAN LAW

Arrest

Learning Unit 1:Unit 1.4

• As indicated previously the two main branches of law are; substantive law and procedural adjective law,
we will be looking at the rules of criminal procedure which forms part of the adjective law or puts
substantive law into action.

• The Criminal Procedure Act 51 of 1977 intends: to make provision for procedures and related matters
in criminal proceedings

• Joubert,2019:7 states that “the criminal procedure regulates inter alia,

• the duties and powers of the criminal courts and prosecutorial powers,
• the duties and powers of the police during investigation of crime,
• rights of arrested and detained people;
• pre trial,
• trial
• post trial matters
What is arrest?
• Arrest is the physical confinement of the accused body
• A seizure or forcible restraint; an exercise of the power to deprive a p
erson of his or her liberty; the taking or keeping of a
person in custody by legal authority, especially, in response to a crimin
al charge.
• Section 39(1) of the Criminal Procedure Act, provides that arrests may
be conducted with or without warrant;
• if the arrest is in terms of a warrant the person arrested must be
informed of the conditions of the arrest given a copy if he/she
requests.
Five requirements for a lawful arrest

• the arrest must be authorised;

• the freedom of movement of the person arrested must be restricted,
this includes physically touching of the body and use of force
• during the arrest or immediately afterwards, the person being
arrested must be informed of the cause of the arrest. Detaining a
person without providing reasons is unlawful
• the arrested person must be taken to a police station as soon as
possible and be brought to appear in court within 48 hours
• the arrested person’s rights must be explained in a language she/he
understands
Arrest without a warrant
A peace officer may without a warrant arrest any person-
• who commits an offence
• who attempts to commit any offence in his presence;
• whom he reasonably suspects of having committed an offence referred to in
Schedule 1, (relates to a number of offences, murder rape, theft, robbery,
kidnapping and etc
• who has escaped or who attempts to escape from lawful custody;
• who is in possession of any object of housebreaking or car breaking as
contemplated in section 82 of the General Law Third Amendment Act, 1993, and
• unable to account for such possession to the satisfaction of the peace officer;
For more reasons read page 26-27 of the CPA
Reasons for arrest
• A peace officer may call upon any person-
• whom he has power to arrest;
• who is reasonably suspected of having committed or of having attempted to commit an
offence;
• who, in the opinion of the peace officer, may be able to give evidence in regard to the
commission or suspected commission of any offence,
• Failure to provide the peace officer with full names and address; or provides false name
• Providing the peace officer with a name suspected to be false; such person may be
arrested and detained for not more than 12 hours until such name and address has
been verified.
• Any person who act contrary to the above; maybe be arrested without a warrant and
sentenced
• furnishes a false or incorrect name and address, shall be guilty of an offence and liable on
conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three
months.
• who wilfully obstructs him in the execution of his duty;
• who is reasonably suspected of having failed to observe any condition imposed in postponing the
passing of sentence or in suspending the operation of any sentence under this Act
• who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by
order of court under this Act
• who fails to surrender himself in order that he may undergo periodical imprisonment when and
where he is required to do so under an order of court or any law relating to prisons;
Warrant of arrest
Who has the authority to issue a warrant of arrest

• Any magistrate or justice may issue a warrant for the arrest of any person upon the written
application of an attorney-general, a public prosecutor or a commissioned officer of police-
• There must reasonable suspicion that the person in respect of whom the warrant is applied
has committed the alleged offence
• State the offence alleged to have been committed;
• alleging that such offence was committed within the area of jurisdiction of such magistrate or,
• within the area of jurisdiction of the magistrate within whose district or area the application is
made, or where such offence was not committed within such area of jurisdiction,
• which alleges that the person in respect of whom the application is made, is known or is on
reasonable grounds suspected to be within such area of jurisdiction; and
Rights of arrested suspects
• In terms of section 49 of the CPA, any person arrested is entitled to the
following:-
• Informed of the charge against him
• Appear in court within 48 hours after arrest; if not possible to be released
• After appearance in court to be released on warning; or
• Bail
• If not possible to be informed of his rights to apply for bail; if after bail
application the court is satisfied that there are compelling circumstances for the
offender to be released; the offender will be released and required to pay a
specific amount only or required to pay the specific amount and adhere to
specific conditions if deemed fit by the state.
Learning Activity
1. What is an arrest?
2. What does CPA stands for?
3. Mention at least two requirements for lawful arrest.
4. Mention at least two reasons a person can be arrested for.
5. State whether the following statement is true or false
• In terms of section 49 of the CPA, any person arrested is not entitled to the
right to be informed of the charge against him.
• Choose the correct answer in the parenthesis
• The rules of criminal procedure forms part of the (adjective law/ substantive
law)