Subject 4 Part 2 Flashcards
Securing the accuseds attendence in court
Arrest with a warrant
Who can execute a warrant of arrest?
= peace officer In terms of s 1 definition in CPA:
peace officer includes –
- Magistrate
- Justice of peace
- Police official
- Correctional official as defined in s 1 of Correctional Services Act
- Any person who is granted this power in terms of s 334(1) notice
Arrest with a warrant
What type of exemption from liability does s46 +s331 of the CPA provide for?
1.make provision for exemption from liability of person who is authorized to execute/assist in execution of warrant of arrest & who in reasonable belief that they are arresting person mentioned in warrant arrests another
2.who acts under warrant which is invalid due to defect in substance or form (provided that there is no knowledge of defect)
(Show a warrant of arrest upon demand)
Arrests without a warrant
When can a PO make an arrest without a warrant ito sec 40+41?
ONLY PEACE OFFICERS+PRIVATE PERSONS CAN DO THIS
A.peace officer can make arrest where person -* Commits/attempts to commit offence in their presence
= if peace officer sees crime taking place they have wider power to make arrest
B.* Is reasonably suspected of having committed offence referred to in schedule
1 .Schedule 1 offences in CPA = serious offences
= if peace officer makes arrest based on reasonable suspicion they have narrower
power to make arrest
Arrest without a warrant
What did the Fubesi+Duncan case state regarding PO’s making arrests without warrants?
F= peace officer cannot arrive @ reasonable suspicion based on 2 conflicting versions of events
D== test for reasonable suspicion is whether on objective grounds peace officer has reasonable grounds for suspicion
Arrest without a warrant
What information does s41 provide that a PO must take when affecting an arrest?
- If peace officer has power of arrest can ask name + address of person being
arrested - Person suspected of having committed/having attempted to commit offence
-If not schedule 1 offence → peace officer cannot make address but can still obtain
name + address of Witness
Arrest without a warrant
What if a suspect refuses to provide their name to the PO ito s41?
deemed offence
= can then be arrested on basis of this refusal
- Reasonable suspicion that person gives peace officer false name/address/both → peace officer may arrest without warrant & detain for period of not exceeding 12 hours until their name/address/both has been verified
Arrest by private persons without a warant
Under which circumstances can a private person make an arrest ito s42?
A.* Schedule 1 offence committed in their presence OR on reasonable suspicion
that person committed schedule 1 offence
Private person can only make arrest in terms of schedule 1
B.* Assisting POwho has authority to effect arrest
* Statute provides authority for private persons to make arrest
* See person engaged in fight
* Owner of property can make arrest where
person is committing an offence on their property
Duty to arrest
What is the duty to arrest ito s47(1)?
→ every male inhabitant of SA between ages of 16-60 when called upon by police official to do so = is required to assist such police official in arresting + detaining person
- s 47(2) of CPA = failure to render assistance is offence punishable by
fine/imprisonment for period not exceeding 3 months
- s 47(2) of CPA = failure to render assistance is offence punishable by
Mgwenya case
= lameness may exempt accused from criminal liability in terms of s 47(2)
What did the Mathebe case state regarding the non-compliance with the 4 pillars of a lawful arrest?
= where 4 pillars for lawful arrest are not present then is no lawful arrest → so
resisting arrest/escaping is not considered unlawful
= if person is subsequently rearrested after escape → this amounts to assault +
person will have civil claim against arrester
Proceedure after arrest
What is the procedure after effecting an arrest?
Ensure arrested person is in custody of SAPS as soon as possible & then can be detained by police for period not exceeding 48 hours
-48hrs runs after the person arrives at the police station
How does s35(1)(d) of the constitution determine the 48hr window?
Everyone who is arrested for allegedly committing offence has right –
1.broght before a court ASAP,not later than
2.48hrs after the arrest
-end of the first court day after the expiry of 48hrs , if 48hrs expires outside ordinary court hours on a day that isn’t an ordinary court day
What did the Tyokwana case state regarding unlawful detention?
General rule = where person is unlawfully arrested → their detention after arrest will
so be deemed unlawful
Exception = if magistrate decides that person unlawfully arrested must stay in
custody → then detention is deemed lawful & will be entitled to remedy in terms of s
35(2)(d) of Constitution
How can the 48hr period be extended according to s501(1) of the CPA?
- If 48 hour period expires on day which is not court day OR on any court day
after 4pm = 48 hour period is deemed to expire on next court day before 4pm
– If 48 hour period expires when arrestee is outside jurisdiction of court & @ time of expiry is in transit from place of detention to court = 48 hour period expires @ 4pm on next court day after day on which arrestee was brought into court’s area of jurisdiction
What did the Hoco case provide for regarding the expiry of the 48hr period?
= court held that 48 hour period must expire while arrestee is in transit (not before are transported) in order for 48 hour period to be extended
Who is an awaiting trial prisoner?
= person who is arrested + in detention while awaiting trial - Such person has not been convicted by court of law & must therefore be presumed to be innocent
- Awaiting trial prisoners in detention of DCS are detained separately from
prisoners who have been convicted + sentenced
