I don’t usually get involved in criminal law matters. It’s not that I cannot do it or do not like it. It’s about tolerance…. Or rather my lack thereof, in that:

  1. The first rule in dealing with the state is “Hurry up and wait”;
  2. You deal with overworked and undertrained police officials;
  3. You deal with potential criminals.

Now, I have in the past assisted, and will no doubt assist again, when one of my clients or their employees get caught up in a criminal matter, which I do not mind at all. Thing is, I don’t want to work for people who habitually get tied up in criminal matters. There it is again- tolerance…

I suppose what tests my tolerance the most is that someone who is not properly trained is given a badge, uniform and a gun and is given the impression that he has control over someone else’s freedom…

The following instances are examples of true events that tested my tolerance and serves to illustrate my point:

  •  when one of my clients was arrested for pointing a firearm (a paintball gun…);
  • the time when my client was charged with attempted murder, when the complainant brought a gun into my client’s home;
  • when my client, a grandmother and primary school teacher and her son were arrested for her grandson’s (her son’s son) kidnapping when they took the child from his drug dependent mother;
  • when my client was arrested for the assault with the intent to do grievous bodily harm of his sister, after she laid charges against him when she sobered up two days later, following an event that occurred when she was drunk and fighting with everyone, including her boyfriend. She and the boyfriend beat each other with sticks and my client took her to the police station on the night of the incident so that she could lay charges as she had threatened. The police refused to take a statement then because she was clearly inebriated and swore at them. Who got charged?

I have sympathy with the police, as any brain dead, vindictive, emotionally unstable and/or malicious person (and there are many) may lay a charge, and they must open a dossier, take a statement and investigate, which in turn drives the police to desperation.

Now, the desperate policeman’s problem is:

a) after his time was thoroughly wasted, he has to do something with this       docket and;
b) his success is measured by his arrest rate;
c) the police do not have enough trained members and vehicles to go out         and chase leads on criminals.

The desperate policeman’s solution to turn into the Defective Detective and:

a) Call those people who have been accused and are of the view that they have been unreasonably accused to come in, and;
b) Arrest them, because the more serious the charge the better he looks for making the arrest of a dangerous criminal.

In order to make this solution work, the Defective Detective must:

a) Thoroughly frighten the civilian (or “mvundla”, which translates to rabbit, or “haas” in the old security policeman’s speak, which potentially means you.);
b) Charge the rabbit with something so serious that police bail or bail at the police station by a prosecutor cannot be given;
c) Delay processing this rabbit (by for instance leaving the police station for three hours) so that he needs to spend the night, or preferably the weekend in the cells, which will make his eyes grow so big as those of a real rabbit in a car’s spotlights and forget that he actually has rights to exercise.

  • This also makes the rabbit very compliant under questioning, and gives him the satisfaction that although the state maintains a dismal conviction rate, the rabbit would at least spend a night or weekend in the cells.
  • It also gives him the satisfaction that the rabbit’s attorney is charging him for all the time the desperate policeman wastes, which is akin to imposing a fine without due process.
  • The police also use this technique to scare first offenders off from starting a career in crime.

Now let us for a moment consider the law in order to appreciate what problems the Defective Detective’s solution caused:

1 First of all, we need to look at the Constitution of the Republic of South Africa, and we can start with Section 12, which reads as follows:

12. (1) Everyone has the right to freedom and security of the person, which includes the right—

(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.

2 The Right to freedom is then further developed in terms of Section 35 of the Constitution as far as it relates to the rights of accused, detained and arrested person, which reads as follows:

35. (1) Everyone who is arrested for allegedly committing an offence has the right—

(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
(e) 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; and
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
(c) to have a legal practitioner assigned 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;
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.

3 So, from the above, it is clear that we have the right to freedom, but that we may be arrested under certain circumstances, in which case we have the rights in terms of S35 of the Constitution, such as to be released from detention if the interest of justice permits, which is what we refer to as
bail.

4 Then we need to take a look at the right of the police to make an arrest as set out in the Criminal Procedure Act, Act 51 of 1977 (the Act).

5 Chapter 4 of the act deals with ways to secure the attendance of an accused in court, which is set out as follows in section 38:

“securing the attendance of an accused who is eighteen years or older in
court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act”

6 Accordingly it is clear that arrest is by no means the only way in which the police can ensure the attendance of an accused in court.

7 In terms of Section 40 (1):
(1) A peace officer may without warrant arrest any person-
(a) who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

8 The crimes listed in Schedule 1 are the following:
a. Treason.
b. Sedition.
c. Public violence.
d. Murder.
e. Culpable homicide.
f. Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law
g. Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
h. Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
i. Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
j. Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
k. Robbery.
l. Kidnapping.
m. Childstealing.
n. Assault, when a dangerous wound is inflicted.
o. Arson.
p. Malicious injury to property.
q. Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.
r. Theft, whether under the common law or a statutory provision.
s. Receiving stolen property knowing it to have been stolen.
t. Fraud.
u. Forgery or uttering a forged document knowing it to have been forged.
v. Offences relating to the coinage.
w. Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefore may be a period of imprisonment exceeding six months without the option of a fine.
x. Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody.
y. Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.
z. Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

9 The scope for the police to arrest and detain a person is accordingly very wide, but there must be a reasonable suspicion that a person committed a crime. Some stories complainants tell the police under oath is clearly so farfetched that no reasonable policeman can believe that such a complaint constitutes a reasonable suspicion, and an arrest that follows from any complaint other than one that casts a reasonable suspicion must accordingly be unlawful.

10 An unlawful arrest is a cause of action for a civil claim against the police and the officer that committed the unlawful arrest.

11 The complainant also opens himself up for a civil claim based on unlawful prosecution.

12 As mentioned before, the police themselves cannot grant bail in terms of Section 59(1)(a) of the Act, if the accused is accused of committing a crime as set out in Part II or Part III of Schedule 2 of the act, which are:

a. PART I
i. Any offence under any law relating to the illicit possession, conveyance or supply of dependence-producing drugs or intoxicating liquor.
ii. Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones.
iii. Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.
iv. Theft, whether under the common law or a statutory provision.

b. PART II
i. Treason.
ii. Sedition.
iii. Murder.
iv. Rape or compelled rape as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
v. Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
vi. Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,2007.
vii. Robbery.
viii. Assault, when a dangerous wound is inflicted.
ix. Arson.
x. Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.
xi. Theft, whether under the common law or a statutory provision, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to have been forged, in each case if the amount or value involved in the offence exceeds R2 500. metals or precious stones.
xii. Any offence under any law relating to the illicit possession of-
(i) dagga exceeding 115 grams; or
(ii) any other dependence-producing drugs; or
(b) conveyance or supply of dependence-producing drugs.
xiii. Any offence relating to the coinage.
xiv. Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.
xv. Any conspiracy, incitement or attempt to commit any offence referred to in this Part.

13 So, if you are charged with any of the aforesaid crimes on a Friday, chances are that you will only appear in court on the following Monday for a bail application, unless a prosecutor on standby can be found to grant you bail in terms of Section 59A, which will only work if you are charged with a crime listed in Schedule 7 of the Act, which are:

a. Public violence.
b. Culpable homicide.
c. Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
d. Assault, involving the infliction of grievous bodily harm.
e. Arson.
f. Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
g. Malicious injury to property.
h. Robbery, other than a robbery with aggravating circumstances, if the amount involved in the offence does not exceed R20 000,00.
i. Theft and any offence referred to in section 264 (1) (a), (b) and (c), if the amount involved in the offence does not exceed R20 000,00.
j. Any offence in terms of any law relating to the illicit possession of dependence producing drugs.
k. Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000,00.
l. Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

14 Therefore, if the arrest was unlawful and on a Friday, you will likely spend the whole weekend as guest of the state, which raises the amount you would be able to claim in the civil action referred to above.

The question is now, how does the Defective Detective become the Effective Detective and avoid being sued?

  1. He has to act as a reasonable policeman and thoroughly investigate the charge and only arrest the accused once he has a reasonable suspicion that the accused committed a crime.
  2. He must not fall into the traps of thinking and methods employed by the police before the advent of the constitutional era and abuse his power to bully citizens into making confessions.
  3. His performance must not be rated on arrests, but on convictions.

In the interim, before the South African Police Service truly become a service to the community, my advice is not to make any appointments with the police on Fridays.

Kind regards

Gerhard van der Merwe

Flashbacks of a Family Lawyer- The “Mercy” of the State
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