Other than outright crooks, every person prefers to live in a society in which they can feel safe and secure. But a safe society comes at a healthy price.
It means that some rights will be limited. So, the right to be free could be violated from time to time. The question each time will be: is the violation reasonable and justifiable in the circumstances?
So, when we get stopped at road blocks or pass through security checks before boarding an aircraft we should accept that our rights are limited for the greater and our good. But what if we get arrested? Two examples close to home come to mind.
Recently, a mother shopping with her small baby was stopped and arrested at an up market supermarket as she triggered the alarm for shop lifters. Some baby food had somehow ended up in the baby’s pram. The baby food hadn’t been paid for, and as the mom left the super market she was arrested for shop lifting.
And how many friends do we know who have been arrested (and handcuffed) for unpaid traffic fines, and failure to appear in traffic court? Quite a number. And the husband and wives who, in going through the trauma of a divorce accuse each other (often unfairly) of unimaginable criminal conduct, and sometimes seek protection orders against the other spouse. Immigration and health laws all over the world allow for the arrest and detention of individuals who are deemed undesirable and/or mentally a danger to themselves or others.
So, if you get arrested what are you to do?
The Constitutional Court has loftily held that every arrest and detention is presumed to be unlawful. The onus is then on the arresting party, usually the police, to justify the lawfulness of the arrest and detention. The Constitutional Court stated: “The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken.”
Now an arrest can take place with or without a warrant (a warrantless arrest). Under apartheid legislation warrantless arrests were permitted in many instances.
But the Constitution’s guarantee of the right to freedom has effectively meant that only in special limited cases may an arrest occur in the absence of a warrant. Those special rare warrantless cases are when it would defeat the very objects of the arrest to require the arresting person/officer to first have to obtain a warrant of arrest.
So, if a policeman sees a serious crime, say robbery, being committed, he should be able to arrest the perpetrator immediately. For the officer to leave the scene, approach a magistrate to obtain a warrant in order to make an arrest would be absurd and indeed counter-productive. The robber would have long fled by the time the warrant has been obtained. So, the law allows for warrantless arrests in those limited circumstances. If the arrested person thereafter challenges the validity of the warrantless arrest the police would have to demonstrate that it would not been appropriate in the particular circumstances to have first obtained a warrant. Perhaps like the shop lifting case, but not the traffic fine violator.
And when the police do apply for an arrest warrant they must satisfy the magistrate that it is necessary for the person to be arrested. What happens in practice, I suppose, busy magistrates, like all of us tired of crime and particularly serious crime, merely glance at a policeman’s application for an arrest warrant and simply grant it (issue the warrant of arrest) without properly applying his or her mind to the application.
Most of the time no harm will come of such an approach. But history teaches us that no one, including the police, can always be trusted. Police may receive false/fake information, rely on it to arrest a target. Or the policeman may be corrupt and for ulterior purposes, such as a bribe of money or political rivalry, apply for a warrant.
Once arrested the person must be brought before a court within 24 hours. At that first appearance he or she may apply for bail. And if it later turns out that the arrest warrant was, for whatever reason, issued and obtained unlawfully the person could sue the Minister of Police for damages. Damages that may be obtained for unlawful arrest in South Africa are not high. But in any event I suppose it is cold comfort to be unfairly locked up and be deprived of freedom and then obtain compensation for the wrong done. Prison conditions and police cell facilities are notoriously horrible in South Africa. Rape, robbery and assaults are common place.
So, what advice would I give?
First, make sure that in your speed dial contacts are a couple of experienced attorneys who specialise in the world of arrests and the magistrates’ courts. It is stressful enough being arrested, and it is only made worse if family and friends have to then run around searching for an appropriate lawyer to assist.
It is of little use to know that a cousin is a lawyer, when the cousin is a top tax or shipping lawyer who has never been to a police station or police cell. Secondly, it must be worth knowing exactly what one’s rights are.
For example, on being arrested may one insist on receipt of an arrest warrant? In looking at and analysing the arrest warrant there are many items that can be of significance. A simple example is that the issuing magistrate may have limited time for permission to arrest to between say 9am to 5pm. And if the arresting officer arrives after 5pm in the evening, it may be that the target of the arrest could insist the police come back the following morning, or come back with a different warrant. But these are all issues that must be considered on case by case basis. It should always be remembered how important freedom is.
A founding value of the Constitution is freedom; it is something to be cherished and protected. Perhaps it is understandable that only after being arrested and detained is the value of freedom appreciated. But the trauma and post traumatic effects of an arrest and detention should never be underestimated.
The right to freedom really deserves its place as a founding value, and a guiding principle under the Constitution and the law.
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I have been a practicing attorney for the past 13 years focusing exclusively on criminal litigation in the Magistrates courts.
After having read the article by Advocate Anton Katz I felt that it was necessary for me to add some input regarding the arrest and detention procedure in South Africa.
An arrested person must be brought before Court withing 48 hours of being arrested, unless he or she was arrested on the authority of a warrant then only does the 24 hour rule apply.
The general rule is that an arrest must be done on the strength of a warrant, with exceptions. In my experience however I have noted with concern that almost invariably most arrests occur in the absence of a warrant.
Despite the findings by the Constitutional Court as pointed out by Adv Katz, it is seems to me that either the judgment has not been provided to members of the SAPS or it may be that they simply do not care about its findings.
I have also noted that when arrested persons attempt to assert their rights as enshrined in the Constitution, that this leads to certain members of the SAPS becoming aggressive and heavy handed towards them, often with adverse consequences for the arrested person, such as their right to contact an attorney being refused or delayed for a couple of hours.
My advice would be that if members of the SAPS attempt to arrest you for an offence which has allegedly been committed some time prior to the date of the intended arrest, that you insist on them producing a warrant for your arrest, alternatively that they either issue you with a summons to appear at court or give you a formal written notice to appear.
In certain instances an arrest can be affected without a warrant especially in situations which are referred to by members of the SAPS as a direct arrest. For example if upon being searched by the SAPS, you are found to be in possession of drugs, then you may be arrested immediately without the need to obtain a warrant.
You may be released on after hour bail for the following offences referred to in Schedule 7 of the Criminal Procedures Act:
Culpabable homicide
Possession of drugs
Theft or Fraud not exceeding the value of R20000
Assault to cause grievous bodily harm
Malicious damage to property
Housebreaking
R Isaacs Attorneys Inc