Criminal Trial and advocacy, Theme 1 Flashcards
1
Q
📜 Which section of the Criminal Procedure Act (CPA) confirms the right to legal representation?
A
🔍 Section 73 of the CPA confirms this fundamental right, aligning with Section 35(3)(f) of the Constitution.
2
Q
⚖️ Who has the right to legal representation under the Constitution?
A
🏛️ Detained persons, accused persons, and sentenced prisoners all have the right to legal representation, including State-appointed lawyers if substantial injustice would result.
3
Q
🔔 When must a person be informed of their right to legal representation?
A
📢 They must be informed on the first occasion after detention, as per Section 35(2)(c) and 35(3)(g) of the Constitution.
4
Q
👶 Why is legal representation particularly important for youth offenders?
A
🛡️ Because it aligns with the “best interests of the child” principle under Section 28 of the Constitution.
5
Q
🚨 What are the consequences of denying an accused the opportunity to obtain legal representation?
A
⚠️ The conviction and sentence may be quashed, depending on whether the court exercised its discretion properly (📖 Zackey 1945 AD 505; Yelani 1986 (3) SA 802 (E)).
6
Q
⚖️ What did the court rule in S v Solomons 2004 (1) SACR 137 (C) regarding legal representation?
A
⚠️ It is dangerous to assume that an accused does not want legal representation; courts must ensure the accused makes an informed decision.
7
Q
🔄 Can an accused person delay the trial indefinitely to obtain legal representation?
A
⏳ No, while courts should be tolerant, this right cannot be abused. Unreasonable delays will not be allowed if they prejudice the State (S v Mathikinca 2016 (1) SACR 240 (WCC)).
8
Q
🔗 When does an accused person become entitled to the assistance of a legal adviser?
A
📅 An accused person is entitled to the assistance of a legal adviser from the time of their arrest, whether with or without a warrant, subject to prison management laws.
9
Q
⚖️ Under what conditions is an accused entitled to legal representation during criminal proceedings?
A
👨⚖️ An accused has the right to be represented by a legal adviser unless a specific law prohibits that legal adviser from appearing at the proceedings.
10
Q
📢 At what specific stages must an accused be informed of their right to legal representation?
A
📝 An accused must be informed of this right at the following stages:
(a) At the time of arrest 🚔
(b) When served with a summons (Section 54) 📜
(c) When receiving a written notice (Section 56) ✉️
(d) When an indictment is served (Section 144(4)(a)) ⚖️
(e) At their first court appearance 👨⚖️
They must also be informed that they may apply for legal aid if they cannot afford a lawyer.
11
Q
⏳ Does the accused have a right to time to obtain legal assistance?
A
✅ Yes! Every accused must be given a reasonable opportunity to obtain legal assistance.
12
Q
⚠️ What happens if an accused refuses or fails to appoint a legal adviser within a reasonable time?
A
⏳ If the delay is due to their own fault, the court may:
1️⃣ Order the trial to proceed without legal representation, unless it would cause substantial injustice.
2️⃣ Assign a State-funded legal adviser under the Legal Aid South Africa Act, 2014.
3️⃣ Order that the costs of legal representation be recovered from the accused.
4️⃣ Allow the accused to conduct their own defense if they prefer.
13
Q
👶 How does the law protect accused persons under 18 during criminal proceedings?
A
🧒 Under the Child Justice Act, 2008, an accused under 18 may receive assistance from:
✅ A parent,
✅ An appropriate adult, or
✅ A guardian.
The court may also allow any other person to assist an accused if it deems it necessary.
14
Q
Section 35(3)(f) of the CONSTITUTION
A
Every accused has the right to a fair trial, which includes the right to choose, and to be represented, by a legal practitioner, and to be informed of this right promptly
15
Q
Section 35(3)(g) of the CONSTITUTION
A
Every accused has the right to a fair trial, which includes the right to have a legal practitioner assigned to the accused person by the state and at the state expense, if substantial injustice would result, and to be informed of this right promptly
16
Q
Mahlongwana v Kwatinidubu Town Committee 1991
A
In the case of Mahlongwana v Kwatinidubu Town Committee 1991 (1) SACR 669 (E), the court addressed the issue of unlawful detention by municipal authorities. The plaintiff was arrested and, due to a lack of available police cells, was detained overnight in a municipal police van. The court held that such detention was unlawful, emphasizing that municipal officials do not possess the authority to detain individuals merely because the South African Police Service cannot or will not exercise its powers of detention. This case underscores the principle that only designated law enforcement agencies have the legal authority to detain individuals, and any deviation from this protocol can lead to a violation of personal liberties.
17
Q
Minister of Safety and Security v Sekhoto and Another 2010
A
- Facts (F) 📝
The case involved the arrest and detention of the respondent, Sekhoto, by police officers without a warrant. He was arrested under section 40(1)(b) of the Criminal Procedure Act (CPA), which allows an officer to arrest someone without a warrant if they have a reasonable suspicion that the person has committed a Schedule 1 offense. Sekhoto challenged the lawfulness of his arrest, arguing that the police did not properly exercise their discretion. - Legal Question (L) ⚖️
Was Sekhoto’s arrest and detention lawful, or did the police act unreasonably and arbitrarily in exercising their discretion under section 40(1)(b) of the CPA? - Applicable Law (A) 📜
Section 40(1)(b) of the CPA: Police officers may arrest a person without a warrant if they have a reasonable suspicion that the person committed a Schedule 1 offense.
The Constitution of South Africa: Protects individuals from arbitrary deprivation of liberty (Section 12).
Case Law: The court considered previous rulings on the discretionary powers of police officers when making arrests. - Application (A) 🏛️
The Supreme Court of Appeal (SCA) ruled that:
Reasonable suspicion is enough for a lawful arrest under section 40(1)(b). Police do not need additional justification beyond this.
However, the officer must still exercise discretion on whether arrest is necessary or whether less restrictive means (such as a summons) could be used.
The mere fact that an arrest is lawful does not mean it is always justified—police officers must use their discretion fairly and in line with constitutional principles.
- Conclusion (C) ✅
The SCA held that Sekhoto’s arrest was lawful, as the police had a reasonable suspicion that he committed a Schedule 1 offense. However, the court emphasized that arrest should not be automatic—police must always consider whether detention is truly necessary.
Key Takeaway 🚔
While police have the power to arrest without a warrant, they must still exercise discretion in deciding whether arrest is the best course of action. Courts will scrutinize whether an arrest was necessary in each case.
18
Q
When should arrests normally take place?
A
✅ Arrests should normally take place in terms of a warrant. However, in exceptional cases, an arrest may be made without a warrant under circumstances mentioned in sections 40 and 42 of the Criminal Procedure Act. ⚖️🚔
19
Q
Does the Constitution prohibit police officers from arresting suspects?
A
✅ No, the Constitution does not prevent police officers from arresting suspects. However, police should consider less invasive options to bring a suspect to court when possible. 📜⚖️
20
Q
Which case emphasized the need for discretion in arrests?
A
✅ The case of Minister of Safety and Security v Sekhoto & Another 2011 (1) SACR 315 (SCA) emphasized that while arrests can be made, police should use discretion and consider whether a less restrictive method (such as a summons) could be used instead. 🚔⚖️
21
Q
Under which Act can arrests also take place apart from the Criminal Procedure Act?
A
✅ Arrests can also take place under the Immigration Act 13 of 2002, which allows for the detention and deportation of illegal foreigners. 🌍🚨
22
Q
❓ What did the Constitutional Court decide in Lawyers for Human Rights v Minister of Home Affairs & Others (2017)?
A
✅ The Constitutional Court ruled that sections 34(1)(b) and (d) of the Immigration Act were unconstitutional. Now, a detainee must be brought before a court within 48 hours, and detention must be procedurally and substantively fair. ⚖️👨⚖️
23
Q
❓ Can a private person obtain a warrant for arrest?
A
✅ No, warrants for arrest are not issued to private persons. Therefore, all private arrests are without a warrant. 🚫📜
24
Q
❓ What is the difference between an arrest in flagrante delicto and an arrest based on reasonable suspicion?
A
In flagrante delicto (caught in the act) 🏃♂️💨: The powers of peace officers are wider, allowing for immediate arrest.
Reasonable suspicion 🤔: Requires the officer to have a valid basis for believing an offense was committed before making an arrest.
25
❓ What must an arrest comply with to be lawful?
✅ Both arrests with and without a warrant must comply with the requirements of section 39 to be considered lawful. 📜✔️
26
❓ How is the lawfulness of an arrest determined?
✅ The lawfulness of an arrest is determined by the facts of each situation (Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56 (CC)). ⚖️📌
27
❓ What happens if an arrest is unlawful?
✅ If an arrest is unlawful, the arrested person may institute an action for damages against the arresting officer. 💰⚖️
28
❓ Does an improper motive affect the lawfulness of an arrest?
✅ No. The case Minister van SA Polisie v Kraatz 1973 (3) SA 490 (A) held that an improper motive does not affect the lawfulness of an arrest. 🚔🤷♂️
29
❓ Who has the burden of proof to show that an arrest was lawful?
✅ The onus is on the arresting officer to prove that the arrest was lawful. (Minister of Safety and Security & Another v Swart 2012 (2) SACR 226 (SCA) at [19]). 🚓📜
30
❓ What is the first requirement for a lawful arrest?
✅ The arrested person must be informed of the reason for the arrest in accordance with section 35 of the Constitution. 📜⚖️
31
❓ What does "physical control" mean in the context of an arrest?
✅ "Physical control" means that the person executing the arrest must either:
Physically touch the arrested person, or
Use force if the suspect resists or tries to flee. 🏃♂️💥🚔
32
❓ Can a police officer use force to arrest a suspect?
✅ Yes, but only if the force used complies with sections 49(1) and 49(2) of the Criminal Procedure Act. In extreme cases, this force may extend to killing the suspect if legally justified. ⚠️🔫⚖️
33
❓ When and how must the arrested person be informed of their rights?
✅ The arrested person must be informed:
During or immediately after the arrest,
In a language they understand,
Of their right to consult a legal representative,
Of their right to remain silent and the consequences of making a statement. 🗣️🚫⚖️
📌 Failure to do so can have consequences (Yawa 1994 (2) SACR 709 (E)).
34
❓ What happens in an arrest with a warrant?
✅ A copy of the warrant must be given to the arrested person immediately after the arrest is executed. 📜🖋️
35
❓ What if the arrested person is not informed immediately of their rights?
✅ If circumstances prevent immediate notification, the arrested person must be informed as soon as possible afterward. (📌 Nqumba v State President 1987 (1) SA 456 (E)). ⏳⚖️
36
❓ When is a more subjective approach followed in informing the arrested person of their rights?
✅ When the accused ought to know why they are being arrested, such as when they are caught red-handed. 🕵️♂️💡
📌 Case law: Macu v Du Toit 1982 (1) SA 272 (C)
37
❓ Where must the arrested person be taken "as soon as possible"?
✅ The arrested person must be taken to:
A police official (if arrested without a warrant), or
The place of custody mentioned in the warrant. 🚔🏢
📜 Section 50(1) of the Criminal Procedure Act applies here.
38
❓ What happens if the arrested person is held in custody unlawfully?
✅ If the arrested person is held in another place or for a longer period than necessary, it is unlawful, and they may claim damages. 💰⚖️
39
❓ What must happen if no charges are brought against the arrested person?
✅ If no charges are brought, the arrested person must be released. 🚪🔓
40
❓ What is the maximum time an arrested person can be held before appearing in court?
✅ The arrested person must be brought before a court within 48 hours. 🕒⚖️
📌 Exceptions apply under section 50, which may extend the period in certain circumstances.
41
❓ Does the lower court need jurisdiction to try the case when an arrested person is first brought before it?
✅ No, the lower court does not need jurisdiction at this stage. The purpose is to:
1️⃣ Bring the arrested person under judicial control, and
2️⃣ Allow them to apply for bail. 🏛️⚖️💰
42
❓ Who can issue a warrant of arrest?
✅ A magistrate or justice of the peace can issue a warrant upon a written application from:
A Director of Public Prosecutions (DPP),
A prosecutor, or
A police official. 🏛️📝👮♂️
43
❓ What must an application for an arrest warrant include?
✅ The application must:
1️⃣ Mention the alleged offence. ⚖️
2️⃣ State that a reasonable suspicion exists, based on information given under oath, that the person committed the offence. 🤔✋
3️⃣ Allege that the offence was committed within the magistrate’s jurisdiction. 📍
44
❓ What if the offence was not committed in the magistrate’s jurisdiction?
✅ The application must state that:
It is known or reasonably suspected that the accused is within that jurisdiction. 🚔📍
45
❓ What is a J50 warrant?
✅ A J50 warrant is a commonly used arrest warrant that complies with the above legal requirements. 📝⚖️
46
❓ Can an arrest warrant issued in one district be executed in another district?
✅ Yes! Warrants are valid throughout the Republic and can be executed anywhere in South Africa. 🇿🇦🚔
📌 See section 328 of the CPA.
47
❓ For how long is an arrest warrant valid?
✅ Warrants do not expire and remain valid until they are executed or withdrawn. 📅⏳
📌 See section 43(3) of the CPA.
48
❓ Who can execute an arrest warrant?
✅ A warrant can be executed by:
Peace officers (e.g., magistrates, justices of the peace, police officials), 👮♂️⚖️
Persons mentioned in a section 334 notice, 📜
Members of the Department of Correctional Services. ⛓️🚔
49
❓ What happens if a peace officer arrests the wrong person?
✅ They are indemnified (protected from liability) if the arrest was made on reasonable grounds. ✅⚖️
📌 See sections 46 & 331 of the CPA.
📌 Case law: Minister van Wet en Orde v Van der Heever 1982 (4) SA 16 (C).
50
❓ What if the warrant has a defect in its contents or form?
✅ If the defect is obvious and the peace officer still acts in good faith, they are protected from liability. 📜🛡️
📌 Test: An objective test applies to determine if the officer acted reasonably. ⚖️👀
51
❓ Can an arrested person sue for unlawful arrest?
✅ Yes! The Criminal Procedure Act does not prevent an aggrieved person from filing a civil claim for damages. 💰⚖️
📌 See section 53 of the CPA.
52
❓ Which section of the CPA regulates arrest without a warrant?
✅ Section 40 of the Criminal Procedure Act (CPA) regulates the powers of a peace officer to take persons into custody without a warrant. 👮♂️⚖️
53
❓ Does “reasonable suspicion” require certainty?
✅ No, reasonable suspicion does not require certainty or a prima facie case. 🤔❌
However, a vague suspicion is not sufficient—it must be based on an objective reasonable person’s standard. ⚖️
📌 Case: Minister of Safety and Security & Another v Swart 2012 (2) SACR 226 (SCA)
54
❓ Does a peace officer need to intend to prosecute an arrested person?
✅ No, a peace officer does not need to intend to prosecute the arrested person immediately. 🚔📝
Instead, reasonable suspicion combined with an intention to investigate further is sufficient. 🔍
📌 Cases: Duncan v Minister of Law and Order 1984 (3) SA 460 (T)
📌 Mabona v Minister of Law and Order
55
Can a police officer arrest someone based on another person’s report?
✅ Not necessarily. If the officer did not personally witness the alleged crime and relies only on another’s report, the arrest may not be justified under section 40(1)(a) of the CPA. 🚔❌👀
📌 Case: Minister of Safety and Security v Glisson 2007 (1) SACR 131 (E)
56
What did the court rule in Gellman v Minister of Safety and Security (2008)?
✅ Even if a police officer reasonably suspects a Schedule 1 offence was committed, they must use discretion in choosing whether to:
1️⃣ Arrest the suspect immediately,
2️⃣ Obtain a warrant, or
3️⃣ Issue a summons. ⚖️🚔📜
📌 If exigent circumstances exist (e.g., the suspect might flee), an immediate arrest without a warrant may be justified. 🏃♂️💨🚔
57
❓ What special considerations apply when arresting a child?
✅ The best interests of the child must always be considered, as per the Constitution. 📜👶⚖️
Arresting a child should be a last resort due to its serious impact.
📌 Case: MR v Minister of Safety and Security 2016 (2) SACR 540 (CC)
58
❓ Who is required to assist a police official in making an arrest?
✅ Male inhabitants of South Africa between the ages of 16 and 60 must assist a police officer when called upon to do so. 👮♂️👨⚖️
📌 Section 47(1) of the CPA
59
❓ What happens if a person refuses to assist a police officer in an arrest?
✅ They may be found guilty of an offence and sentenced to a fine or imprisonment for up to 3 months. 🚔⚖️
📌 Section 47(1) of the CPA
60
❓ Who can be required to provide their name and address to a peace officer?
✅ Any person who:
1️⃣ Is authorized to be arrested,
2️⃣ Is reasonably suspected of an offence, or
3️⃣ May be able to testify about a crime.
📌 Section 41(2) of the CPA
61
❓ What happens if a person refuses to provide their name or gives a false name?
✅ This is an offence and is punishable under Section 41(2). 🚔⚖️
62
❓ What governs the use of force in making an arrest?
✅ Section 49(1) of the CPA governs the use of force in overcoming resistance or stopping a fleeing suspect. 🚔💪
63
🛑 What fundamental right do suspects and accused persons have under Section 35(1)(a) and 35(3)(h) of the Constitution?
🗣️ They have the right to remain silent, meaning they are not required to testify or assist in proving their own guilt
64
⚖️ On what legal principle is the right to remain silent based?
🏛️ It is based on the presumption of innocence and the fact that the burden of proof rests on the State.
65
🤔 What is the difference between the right to remain silent and the right not to be questioned?
❌ An accused has the right to remain silent but does not have the right to refuse questioning. See S v Thebus & Another (2003).
66
🚔 Can a person be arrested solely for questioning?
❌ No, an accused cannot be taken into custody for the sole purpose of questioning.
67
📢 What must an arrested person be informed of immediately?
🏛️ Their right to remain silent and the consequences of waiving this right (Section 35(1)(b) of the Constitution).
68
🗣️ In what language should the right to remain silent be explained to the accused?
🌍 In a language they understand, as required by Section 35(4) of the Constitution.
69
⚠️ What happens if an accused is not properly advised of their right to remain silent?
❌ It is a constitutional breach, and any statements they make may be deemed inadmissible under Section 35(5).
70
🚔 What must happen immediately after a person is arrested?
🏛️ They must be taken to a police station or the place mentioned in the warrant as soon as possible.
71
⏳ How long can an arrested person be held if no charge is laid?
🕒 No more than 48 hours, unless they are brought before a court for further detention (Section 50 of the CPA).
72
📅 What happens if a person is arrested on a Wednesday at 16:00?
🚔 They may be held until Monday at 16:00 if the 48-hour period extends over a weekend (per Section 50(1)(a)-(d) of the CPA).
73
⚖️ What is the principle of legality in the context of an arrest?
🏛️ Law enforcement must act within the legal framework and respect procedural norms.
74
⚡ What is the difference between "speedy production" and "speedy trial"?
⏳ Speedy production (Section 35(3)(d) of the Constitution) means the accused must be brought to court quickly. It does not guarantee a speedy trial.
75
Section 14 of the Constitution
Privacy
14. Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
76
Section 35(1)(d)
35. (1) Everyone who is arrested for allegedly committing an offence has the right—(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;
77
Section 35(2)(a) of the Constitution
2) Everyone who is detained, including every sentenced prisoner, has the right— (a) to be informed promptly of the reason for being detained;
78
Section 35 (4) of the Constitution
(4) Whenever this section requires information to be given to a person, that information
must be given in a language that the person understands
79
Section 39 of the CPA
39 Manner and effect of arrest
(1) An arrest shall be effected with or without a warrant and, unless the person to
be arrested submits to custody, by actually touching his body or, if the circumstances
so require, by forcibly confining his body.
(2) The person effecting an arrest shall, at the time of effecting the arrest or
immediately after effecting the arrest, inform the arrested person of the cause of the
arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the
person arrested hand him a copy of the warrant.
(3) The effect of an arrest shall be that the person arrested shall be in lawful
custody and that he shall be detained in custody until he is lawfully discharged or
released from custody
80
Section 40
40 Arrest by peace officer without warrant
(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;
(c) who has escaped or who attempts to escape from lawful custody;
(d) who has in his possession any implement of housebreaking or carbreaking
as contemplated in section 82 of the General Law Third Amendment Act,
1993, and who is unable to account for such possession to the satisfaction
of the peace officer; (e) who is found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly obtained, and whom
the peace officer reasonably suspects of having committed an offence with
respect to such thing;
(f) who is found at any place by night in circumstances which afford reasonable
grounds for believing that such person has committed or is about to commit
an offence;
(g) who is reasonably suspected of being or having been in unlawful possession
of stock or produce as defined in any law relating to the theft of stock or
produce;
(h) who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession or
conveyance of intoxicating liquor or of dependence-producing drugs or the
possession or disposal of arms or ammunition;
(i) who is found in any gambling house or at any gambling table in
contravention of any law relating to the prevention or suppression of
gambling or games of chance;
(j) who wilfully obstructs him in the execution of his duty;
(k) who has been concerned in or against whom a reasonable complaint has
been made or credible information has been received or a reasonable
suspicion exists that he has been concerned in any act committed outside
the Republic which, if committed in the Republic, would have been
punishable as an offence, and for which he is, under any law relating to
extradition or fugitive offenders, liable to be arrested or detained in custody
in the Republic;
(l) who is reasonably suspected of being a prohibited immigrant in the Republic
in contravention of any law regulating entry into or residence in the
Republic;
(m) who is reasonably suspected of being a deserter from the South African
National Defence Force; (n) 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;
(o) 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;
(p) 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;
(q) who is reasonably suspected of having committed an act of domestic
violence as contemplated in section 1 of the Domestic Violence Act, 1998,
which constitutes an offence in respect of which violence is an element.
[Para. (q) added by s. 20 of Act 116 of 1998.]
(2) If a person may be arrested under any law without warrant and subject to
conditions or the existence of circumstances set out in that law, any peace officer may
without warrant arrest such person subject to such conditions or circumstances.
81
Section 41 of the CPA
41 Name and address of certain persons and power of arrest by peace officer
without warrant
(1) A peace officer may call upon any person-
(a) whom he has power to arrest;
(b) who is reasonably suspected of having committed or of having attempted to
commit an offence;
(c) 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,
to furnish such peace officer with his full name and address, and if such person fails to
furnish his full name and address, the peace officer may forthwith and without warrant
arrest him, or, if such person furnishes to the peace officer a name or address which
the peace officer reasonably suspects to be false, the peace officer may arrest him
without warrant and detain him for a period not exceeding twelve hours until such
name or address has been verified.
(2) Any person who, when called upon under the provisions of subsection (1) to
furnish his name and address, fails to do so or 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.
82
Section 42 of the CPA
42 Arrest by private person without warrant
(1) Any private person may without warrant arrest any person-
(a) who commits or attempts to commit in his presence or whom he reasonably
suspects of having committed an offence referred to in Schedule 1;
(b) whom he reasonably believes to have committed any offence and to be
escaping from and to be freshly pursued by a person whom such private
person reasonably believes to have authority to arrest that person for that
offence;
(c) whom he is by any law authorized to arrest without warrant in respect of
any offence specified in that law;
(d) whom he sees engaged in an affray.
(2) Any private person who may without warrant arrest any person under
subsection (1) (a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist
therein.
(3) The owner, lawful occupier or person in charge of property on or in respect of
which any person is found committing any offence, and any person authorized thereto
by such owner, occupier or person in charge, may without warrant arrest the person so
found.
83
Section 43 of the CPA
43 Warrant of arrest may be issued by magistrate or justice
(1) 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-
(a) which sets out the offence alleged to have been committed;
(b) which alleges that such offence was committed within the area of
jurisdiction of such magistrate or, in the case of a justice, within the area of
jurisdiction of the magistrate within whose district or area application is
made to the justice for such warrant, 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
(c) which states that from information taken upon oath there is a reasonable
suspicion that the person in respect of whom the warrant is applied for has
committed the alleged offence.
(2) A warrant of arrest issued under this section shall direct that the person
described in the warrant shall be arrested by a peace officer in respect of the offence
set out in the warrant and that he be brought before a lower court in accordance with
the provisions of section 50.
(3) A warrant of arrest may be issued on any day and shall remain in force until it is
cancelled by the person who issued it or, if such person is not available, by any person
with like authority, or until it is executed.
84
Section 44 of the CPA
44 Execution of warrants
A warrant of arrest issued under any provision of this Act may be executed by a
peace officer, and the peace officer executing such warrant shall do so in accordance
with the terms thereof.
85
Section 45 of the CPA
45 Arrest on telegraphic authority
(1) A telegraphic or similar written or printed communication from any magistrate,
justice or peace officer stating that a warrant has been issued for the arrest of any
person, shall be sufficient authority to any peace officer for the arrest and detention of
that person.
(2) The provisions of section 50 shall apply with reference to an arrest effected in
accordance with subsection (1).
86
Section 46 of the CPA
46 Non-liability for wrongful arrest
(1) Any person who is authorized to arrest another under a warrant of arrest or a
communication under section 45 and who in the reasonable belief that he is arresting
such person arrests another, shall be exempt from liability in respect of such wrongful
arrest.
(2) Any person who is called upon to assist in making an arrest as contemplated in
subsection (1) or who is required to detain a person so arrested, and who reasonable
believes that the said person is the person whose arrest has been authorized by the
warrant of arrest or the communication, shall likewise be exempt from liability in
respect of such assistance or detention.
87
Section 47 of the CPA
47 Private persons to assist in arrest when called upon
(1) Every male inhabitant of the Republic of an age not below sixteen and not
exceeding sixty years shall, when called upon by any police official to do so, assist
such police official-
(a) in arresting any person;
(b) in detaining any person so arrested.
(2) Any person who, without sufficient cause, fails to assist a police official as
provided in subsection (1), 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
88
Section 48 of the CPA
48 Breaking open premises for purpose of arrest
Any person who may lawfully arrest another in respect of any offence and who
knows or reasonably suspects such other person to be on any premises, may, if he first
audibly demands entry into such premises and notifies the purpose for which he seeks
entry and fails to gain entry, break open, enter and search such premises for the
purpose of effecting the arrest.
89
Section 49 of the CPA
49 Use of force in effecting arrest
(1) For the purposes of this section-
(a) 'arrestor' means any person authorised under this Act to arrest or to assist
in arresting a suspect;
(b) 'suspect' means any person in respect of whom an arrestor has a
reasonable suspicion that such person is committing or has committed an
offence; and
(c) 'deadly force' means force that is likely to cause serious bodily harm or
death and includes, but is not limited to, shooting at a suspect with a
firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt,
or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him
or her is being made, and the suspect cannot be arrested without the use of force, the
arrestor may, in order to effect the arrest, use such force as may be reasonably
necessary and proportional in the circumstances to overcome the resistance or to
prevent the suspect from fleeing, but, in addition to the requirement that the force
must be reasonably necessary and proportional in the circumstances, the arrestor may
use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor or any other
person; or
(b) the suspect is suspected on reasonable grounds of having committed a
crime involving the infliction or threatened infliction of serious bodily harm
and there are no other reasonable means of effecting the arrest, whether at
that time or later
90
Section 50 of CPA
50 Procedure after arrest
(1) (a) Any person who is arrested with or without warrant for allegedly committing
an offence, or for any other reason, shall as soon as possible be brought to a police
station or, in the case of an arrest by warrant, to any other place which is expressly
mentioned in the warrant.
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon
as reasonably possible, be informed of his or her right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person is not released by reason
that (i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower court as soon as reasonably possible, but not
later than 48 hours after the arrest.
(d) If the period of 48 hours expires-
(i) outside ordinary court hours or on a day which is not an ordinary court day,
the accused shall be brought before a lower court not later than the end of
the first court day;
(ii) or will expire at, or if the time at which such period is deemed to expire
under subparagraph (i) or (iii) is or will be, a time when the arrested person
cannot, because of his or her physical illness or other physical condition, be
brought before a lower court, the court before which he or she would, but
for the illness or other condition, have been brought, may on the
application of the prosecutor, which, if not made before the expiration of
the period of 48 hours, may be made at any time before, or on, the next
succeeding court day, and in which the circumstances relating to the illness
or other condition are set out, supported by a certificate of a medical
practitioner, authorise that the arrested person be detained at a place
specified by the court and for such period as the court may deem necessary
so that he or she may recuperate and be brought before the court:
Provided that the court may, on an application as aforesaid, authorise that
the arrested person be further detained at a place specified by the court
and for such period as the court may deem necessary; or (iii) at a time when the arrested person is outside the area of jurisdiction of the
lower court to which he or she is being brought for the purposes of further
detention and he or she is at such time in transit from a police station or
other place of detention to such court, the said period shall be deemed to
expire at the end of the court day next succeeding the day on which such
arrested person is brought within the area of jurisdiction of such court.
[Sub-s. (1) amended by s. 1 of Act 56 of 1979 and substituted by s. 1 (a) of Act 85 of 1997.]
(2) For purposes of this section-
(a) 'a court day' means a day on which the court in question normally sits as
a court and 'ordinary court day' has a corresponding meaning; and
(b) 'ordinary court hours' means the hours from 9:00 until 16:00 on a court
day.
[Sub-s. (2) substituted by s. 1 (a) of Act 85 of 1997.]
(3) Subject to the provisions of subsection (6), nothing in this section shall be
construed as modifying the provisions of this Act or any other law whereby a person
under detention may be released on bail or on warning or on a written notice to appear
in court. (6) (a) At his or her first appearance in court a person contemplated in subsection
(1) (a) who-
(i) was arrested for allegedly committing an offence shall, subject to this
subsection and section 60-
(aa) be informed by the court of the reason for his or her further
detention; or
[Item (aa) substituted by s. 3 (b) of Act 34 of 1998.]
(bb) be charged and be entitled to apply to be released on bail,
and if the accused is not so charged or informed of the reason for his or her
further detention, he or she shall be released; or (ii) was not arrested in respect of an offence, shall be entitled to adjudication
upon the cause for his or her arrest.
(b) An arrested person contemplated in paragraph (a) (i) is not entitled to be
brought to court outside ordinary court hours.
(c) The bail application of a person who is charged with an offence referred to in
Schedule 6 must be considered by a magistrate's court: Provided that the Director of
Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or
her may, if he or she deems it expedient or necessary for the administration of justice
in a particular case, direct in writing that the application must be considered by a
regional court. (d) The lower court before which a person is brought in terms of this subsection,
may postpone any bail proceedings or bail application to any date or court, for a period
not exceeding seven days at a time, on the terms which the court may deem proper
and which are not inconsistent with any provision of this Act, if-
(i) the court is of the opinion that it has insufficient information or evidence at
its disposal to reach a decision on the bail application;
(ii) the prosecutor informs the court that the matter has been or is going to be
referred to an attorney-general for the issuing of a written confirmation
referred to in section 60 (11A);
(iii) ......
[Sub-para. (iii) deleted by s. 8 (1) (c) of Act 62 of 2000.]
(iv) it appears to the court that it is necessary to provide the State with a
reasonable opportunity to-
(aa) procure material evidence that may be lost if bail is granted; or
(bb) perform the functions referred to in section 37; or
(v) it appears to the court that it is necessary in the interests of justice to do
so.
91
Section 51 of the CPA
51 Escaping and aiding escaping before incarceration, and penalties therefor
(1) Any person who escapes or attempts to escape from custody after he or she has
been lawfully arrested and before he or she has been lodged in any correctional
facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to
the penalties prescribed in section 117 of the Correctional Services Act, 1998 (Act 111
of 1998).
[Sub-s. (1) substituted by s. 4 of Act 66 of 2008.]
(2) Any person who rescues or attempts to rescue from custody any person after he
or she has been lawfully arrested and before he or she has been lodged in any
correctional facility, police-cell or lock-up, or who aids the person to escape or to
attempt to escape from custody, or who harbours or conceals or assists in harbouring
or concealing any person who escapes from custody after he or she has been lawfully
arrested and before he or she has been lodged in any correctional facility, police-cell or
lock-up, shall be guilty of an offence and liable on conviction to the penalties
prescribed in section 117 of the said Correctional Services Act, 1998.
[Sub-s. (2) substituted by s. 4 of Act 66 of 2008.]
(3) Notwithstanding anything to the contrary in any law contained, a lower court
shall have jurisdiction to try any offence under this section and to impose any penalty
prescribed in respect thereof
92
Section 52 of the CPA
52 Saving of other powers of arrest
No provision of this Chapter relating to arrest shall be construed as removing or
diminishing any authority expressly conferred by any other law to arrest, detain or put any restraint upon any person
93
