The law says that the police can only arrest you if:
- They want to charge you and take you to court or
- If you are a suspect in a police investigation
An arrest for any other reason is unlawful. For example, if the police arrest you just to scare you, this is unlawful. An arrest is also unlawful if the police do not obey the rules about arrest.
If the police arrest you, you can usually pay bail money to the police or the court, and go home until the date of your court case. (See Bail)
ARREST: GENERAL RULES
(See Section 35 of the Bill of Rights: Arrested, detained and accused persons)
There are two ways in which the police can arrest you:
- With a warrant of arrest
- Without a warrant of arrest
ARREST WITH A WARRANT
The police get legal permission, usually signed by a magistrate, to arrest you. A police officer of the rank of lieutenant or higher can also sign an arrest warrant. The police must show you the warrant if you ask to see it and they must give you a copy of the warrant if you ask for a copy.
ARREST WITHOUT A WARRANT
Sometimes the police can arrest you without a warrant. Here are some examples of when this can happen:
- If you escape, or try to escape, after the police arrested you earlier
- If the police catch you while you are committing a crime
- If the police think you committed a serious crime like murder, rape, serious assault, housebreaking
- If the police think you committed a drug or liquor offence
- If the police find you at night, doing something that makes them think that you are about to commit a crime or have already committed a crime
- If the police think you have not paid a fine which a court ordered you to pay
- If you try to stop the police from doing their duty
- If the police think you have guns or ammunition without a licence
- If you are carrying any other dangerous weapon and you can’t give a good reason to the police
- If the court said you must go to prison for certain periods, for example, every weekend, and you do not go
- If the police think you broke the conditions of a suspended sentence
MAKING A LAWFUL ARREST
There are three things the police must do to make an arrest lawful:
The police must tell you that you are under arrest – Sometimes the police ask you to go with them to the police station without saying that they are arresting you. If you go with them voluntarily, then they do not have to arrest you. It is your right not to go with them unless they arrest you.
The police must have physical control over you when they arrest you – This means the police must make sure you can’t get away. If you do not try to run away, the police do not have to use force to control you. But if you do try to run away, the police can use reasonable force to keep control of you, in other words, only as much force as is necessary.
The police officer must tell you why you are under arrest – This means the police must tell you what offence they think you have committed.
UNLAWFUL ARREST
Here are some examples of unlawful arrest:
If there was no good reason to suspect that you committed an offence
If the purpose of the arrest was not to charge you but just to scare you
If the police officer did not tell you that you were under arrest, and you were not caught while committing an offence
(See Problem 10: Police misconduct)
USING FORCE TO MAKE AN ARREST OR TO STOP YOU ESCAPING FROM ARREST
The law says that when the police make a lawful arrest, they can use force if you try to fight or run away. The law says that the amount of force must be just enough to stop you from fighting or running away. The Criminal Procedure Act, Section 49, deals with the right of police (or someone entitled to make an arrest) to use deadly force in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest. Section 49(2) says that ‘deadly force’ may be used in certain circumstances to carry out an arrest. The clause was challenged in the Constitutional Court because it was held to go against a person’s right to life [Section 11 of the Bill of Rights] as well as their right to human dignity [Section 10 of the Bill of Rights] and bodily integrity [Section 12 of the Bill of Rights]. These rights had to be balanced with the interests of a just criminal system.
(See Problem 8: Police shoot and injure while making an arrest)
In the case of S v Walters (May 2002) Walters and his son had been charged with murder after they shot a suspect running away from their bakery one night. The state (the prosecution) said Walters had no right to kill a suspect in the process of carrying out the arrest. The Court found that section 49 must be interpreted to exclude the use of a firearm unless:
- The suspect is threatening to harm the person arresting him or her or someone else, or
- The suspect is suspected of having committed a serious crime involving or threatening harm to a person.
Section 49 of the Criminal Procedure Act has subsequently been amended. The Court found that the provisions in Section 49(2) allowing the use of ‘deadly force’ for arrests were too wide and were therefore unconstitutional. For example, using ‘deadly force’ in the case of a person caught shoplifting would not be justifiable.
The court summarised the main points regarding the use of force to make arrests under this section:
- Force can only be used where it is necessary to carry out the arrest
- Where force is necessary, then the least amount of force to carry out the arrest must be used
- When deciding what degree of force is reasonable and necessary, all the circumstances must be taken into account including:
- the threat of violence from the suspect to the arrestor or someone else, and
- the nature and circumstances of the offence committed by the suspect (the force must be proportional to the offence)
- Shooting a suspect for the sole purpose of making an arrest is only possible in limited circumstances, for example when:
- there is a threat of violence from the suspect to the arrestor (person arresting them) or someone else
- the suspect is suspected of having caused someone serious harm
- there is no other reasonable way of carrying out the arrest, at that time or later
- the arrestor is acting in self-defence or in defence of any other person
EXAMPLE
The case of Andries Tatane, an unarmed protester shot dead by police in Ficksburg, as well as the shooting of 34 strikers in Marikana, are examples of cases where the use of force may have been excessive.
UNLAWFUL USE OF FORCE
Here are some examples of unlawful use of force:
- If the arrest itself is unlawful, any force that the police use is unlawful
- If you did not try to fight or run away, and the police used force in making the arrest
- If the police used more force than necessary
ARREST BY AN ORDINARY PERSON
This is also called a citizen’s arrest. Any ordinary person can arrest you, without a warrant of arrest, in these cases:
- If you committed a serious offence, or the person suspects that you committed a serious offence
- If the person is reasonably sure that you committed an offence and you try to run away when he or she tries to arrest you
- If you are fighting and someone may be seriously injured
- If the person thinks you went into any fenced land, or a kraal shed or stable, intending to steal crops or animals
- If the person finds you with some animals or crops which he or she suspects that you stole, and you can’t explain why you have them
- If the person is in charge of premises, or is the owner, he or she can arrest anyone who commits an offence on the premises
You are also an ‘ordinary person’. You can arrest other people in the above cases too. For example, someone snatches your bag in the street. You chase after them and catch them. You can lawfully arrest the person.
RIGHTS OF ARRESTED PEOPLE
If you are arrested, Section 35 of the Constitution lists your rights as follows:
- From the time of arrest (even before you have been charged, you have a right to see your attorney.
- The police officer must take you to a police station as soon as possible unless the warrant of arrest says they must take you to some other place.
- You do not have to answer questions, but you must give your name and address. It is best not to say anything else to the police until you speak to your attorney.
- While you are locked up in a cell, you have the rights to:
- have family visits
- see a minister of religion (usually this is a minister working for the government)
- see a doctor (usually this is a government doctor, the district surgeon or a prison doctor)
- wear your own clothes
- exercise for at least one hour a day in the open air
- write and receive letters
- get enough properly prepared food and drink
- The police must take you to court within 48 hours after your arrest.
If the 48 hours ends after 4 pm on a weekday, then they must take you to court on the next day, before 4 pm. If the 48 hours ends on a weekend or a public holiday, then they must take you to court on the first court day, before 4 pm. This is usually the next Monday unless the Monday is a public holiday. If this does not happen, then it is unlawful for the police to keep you in prison. You can sue the police.
(See Problem 9: Your right to appear in Court within 48 hours of arrest)
If the police get evidence against you by going against any of your rights, this evidence will not be allowed in court.
(See Section 35 of the Bill of Rights: Arrested, Detained and Accused persons)
WHAT TO DO IF YOU ARE ARRESTED
- Do not struggle with, or swear at, the police – even if the police made a mistake
- Give the police your name and address – otherwise, keep quiet. You must also show your identity book if they ask for it. Do not discuss your case with anyone and do not sign any statements about your case. If the police officers insist that you sign a statement, ask them to let you read it, if it is written in a different language, ask them to interpret it for you. Ask them for a copy of the statement.
- As soon as possible after you arrive at the police station, say that you would like to see an attorney. If you do not know an attorney, then ask to see your family. Ask them to get you an attorney. If you cannot afford an attorney, ask your family to apply for legal aid for you. (See page 159 Applying for legal aid)
- If you are released on police bail, ask for your bail receipt and find out when you are due in court. Never be late for, or miss, a court hearing. If you do not arrive in time, a warrant for your arrest may be issued. You may also lose your bail money if you do not go to court on the day of the court hearing.
- Do not talk about your case to anyone except your attorney – if you have one. Ask for your attorney to be present if you are questioned or told to attend an identity parade. An identity parade is when you and some other people are called to parade in front of a witness, who is asked to identify the person who committed the crime against them.