PROCEDURE ON ARREST
• MUST INFORM THE PERSON OF THE REASON FOR
THE ARREST AS SOON AS POSSIBLE – SECTION
32(5)
• SEARCH OF PERSON – SECTION 41 (4)
• NAME AND ADDRESS
• ACCESS TO FAMILY, FRIENDS AND LAWYER –
SECTION 13(3) OF THE CONSTITUTION, SECTION
108 OF CODE.
• INTERDICTUM DE LIBERO HOMINE EXHIBENDO
• POLICE MUST TAKE THE SUSPECT TO THE POLICE
STATION AS SOON AS POSSIBLE(I.S.N.A.I.P)
INFORMING OF THE REASON
FOR ARREST
• 32 (5) When an arrest is made without
warrant, the person arrested shall be
informed forthwith by the person arresting
him of the cause of the arrest.
NAME & ADDRESS
• 26 Power of peace officer to call for name and
address of certain persons
• (1) A peace officer may call upon—
• (a) any person whom he has power to arrest;
and
• (b) any person reasonably suspected of having
committed any offence; and
• (c) any person who may in his opinion 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.
NAME & ADDRESS CONT.
• (2) If a person on demand in terms of subsection (1)—
• (a) fails to furnish his full name and address, the peace
officer making the demand may forthwith arrest him; or
• (b) furnishes to the peace officer a name or address
which the peace officer, upon reasonable grounds, suspects to be
false, such person may be arrested and detained for a period not
exceeding twelve hours until the name and address so furnished
have been verified.
• (3) Any person who, when called upon under this section 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
to a fine not exceeding level four or to imprisonment for a period not
exceeding three months or to both such fine and such
imprisonment.
SECTION 32
• 32 Procedure after arrest without warrant
• (1) For the purposes of this section—
• “court day” means any day except a Sunday or a public
holiday.
• (2) Subject to subsections (3a), (3b) and (3c), a person
arrested without warrant shall as soon as possible be
brought to a police station or charge office and, if not
released by reason that no charge is to be brought
against him, may be detained for a period not exceeding
forty-eight hours unless he is brought before a judge or
magistrate upon a charge of any offence and his further
detention is ordered by that judge or magistrate or a
warrant for his further detention is obtained in terms of
section thirty-three.
•
SECTION 33 CONTINUED
• (3) If the period referred to in subsection (2) expires—
• (a) on a day which is not a court day or on any
court day after four o’clock in the afternoon, the said
period shall be deemed to expire at four o’clock in the
afternoon of the court day next succeeding that day; or
• (b) on any court day before four o’clock in the
afternoon, the said period shall be deemed to expire at
four o’clock in the afternoon of that court day:
• Provided that this subsection shall not in any case be
construed as extending the period referred to in
subsection (1) beyond a period of ninety-six hours.
USE OF FORCE IN EFFECTING
ARREST
• HOW MUCH FORCE CAN BE USED?
• GOVERNED BY SECTION 42
SECTION 42
• 42 Resisting arrest
• (1) If any person who is authorized or required under
this Act or any other enactment to arrest or assist in
arresting another person attempts to make the arrest
and the person whose arrest is attempted—
• (a) resists the attempt and cannot be arrested
without the use of force; or
• (b) flees when it is clear that an attempt to
arrest him is being made or resists the attempt and flees;
• the person attempting the arrest may, in order to effect
the arrest, use such force as is reasonably justifiable in
the circumstances of the case to overcome the
resistance or to prevent the person concerned from
escaping.
SECTION 42 CONTINUED
• (2) Where a person whose arrest is attempted is
killed as a result of the use of reasonably
justifiable force in terms of subsection (1) the
killing shall be lawful if the person was to have
been arrested on the ground that he was
committing or had committed, or was suspected
on reasonable grounds of committing or having
committed an offence referred to in the First
Schedule (Chabuda case ,Hatfield armed
robbers)
REASONABLE IN THE
CIRCUMSTANCES?
• WHAT CONSTITUTES REASONABLY
JUSTIFIABLE FORCE?
• WHEN SHOULD THE POLICE BE
ALLOWED TO KILL?
SOME CASE LAW
• Kware v the State S.C. 85/93
• Kearns v the State S.C. 167/92
• S v Chipere S-201-92
ARTICLES ON THE USE OF
FORCE
• The Use of Force - Legal Forum Vol. 5
No. 4 John Reid Rowland, December
1993.
•
Basic Principles of the Use of Force -
Legal Forum 1995 Vol. 7 No. 1
BASIC PRINCIPLES
• SHOUT AND ORDER TO STOP
• FIRE A WARNING SHOT IF OFFENCE
SERIOUS ENOUGH TO WARRANT USE
OF FIREARMS
• SHOOT AT LEGS NOT TORSO OR IF
VEHICLE WHEELS OF VEHICLE
MISCELLANEOUS OFFENCES
ACT
ASSAULTING OR RESISTING A
PEACE OFFICER
• 176
• Any person who assaults or by violent means
resists a peace officer acting in the course of his
or her duty, knowing that he or she is a peace
officer or realising that there is a risk or possibility
that he or she is a peace officer, shall be guilty of
assaulting or resisting a peace officer and liable
to a fine not exceeding level twelve or
imprisonment for a period not exceeding ten
years or both. Kearns v The State
MORE CASE LAW
• R v Bailey 1920 CPD 193-
• section 176 Criminal Law (Codification
and Reform )Act
SUMMONSES
• 140 Summons in magistrates court
• (1) The clerk of the magistrates court
shall, upon or after the lodging of any
charge, at the request of the prosecutor,
issue and deliver to the messenger of the
court a summons to the person charged to
appear to answer the charge, together
with so many copies of the said summons
as there are persons to be summoned.
SUMMONSES 2
• (2) Except where otherwise specially provided
by any enactment, the service upon an accused
person of any summons or other process in a
criminal case in a magistrates court shall be
made by the prescribed officer, either by
delivering it to the accused personally or, if he
cannot conveniently be found, by leaving it for
him at his place of business or most usual or last
known place of abode with some inmate thereof.
SUMMONSES 3
• (3) The service of a summons may be
proved by the testimony on oath of the
person effecting the service or by his
affidavit or by due return of service under
his hand.
SUMMONSES 4
• (4) If, upon the day appointed for the
appearance of any person to answer any
charge, he fails to appear and the court is
satisfied upon the return of the person required
to serve the summons that he was duly
summoned, the court may, on the request of the
prosecutor, issue a warrant for the apprehension
of the said person, and may also impose on him
for his default a fine not exceeding level three or
to imprisonment for a period not exceeding one
month or to both such fine and such
imprisonment
WRITTEN NOTICE TO APPEAR
• 141 Written notice to secure attendance of
accused in magistrates court
• (1) If a person is alleged to have committed an
offence and a peace officer, on reasonable
grounds, believes that a magistrates court, on
convicting such accused of that offence, will
impose a fine not exceeding level three, the
peace officer may, whether or not the accused is
in custody, hand to the accused a written notice
in the form prescribed which shall—
•
WRITTEN NOTICE -PROCEDURE
• (a) give such particulars as are necessary for giving
reasonable information of the allegation:
• Provided that it shall not be necessary to
cite the provision of the enactment under which he is
charged; and
• (b) specify the full name and address of the
accused; and
• (c) call upon the accused to appear at a place
and on a date and at a time specified in the written
notice to answer a charge of having committed the
offence in question; and
•
WRITTEN NOTICE –PROCEDURE
CONT.
• (d) contain an endorsement to the effect that
the accused may, in terms of section three
hundred and fifty-six, on or before such date as
may be specified, admit his guilt in respect of the
offence in question and pay a fine fixed in
respect thereof without appearing in court; and
• (e) contain a certificate under the hand of
the peace officer that he has handed the original
of such written notice to the accused and that he
has explained to the accused the import thereof.
SECTION 356
• 356 Payment by accused persons of fines which may be imposed
for minor offences in lieu of appearance in court
• (1) When any person has been summoned or warned to
appear in a magistrates court or has been arrested or
has been informed by a peace officer, by written notice
referred to in subsection (1) of section one hundred and
forty-one or otherwise, that it is intended to institute
criminal proceedings against him for any offence, and a
prescribed officer has reasonable grounds for believing
that the court which will try the said person for such
offence will, on convicting such person of such offence,
not impose a sentence of imprisonment or a fine
exceeding level three, such person may sign and deliver
to such prescribed officer a document admitting that he
is guilty of the said offence and—
SECTION 356 CONT
• (a) deposit with such prescribed officer
such sum of money as the latter may fix; or
• (b) furnish to such prescribed officer
such security as the latter thinks sufficient for the
payment of any fine which the court trying the
case in question may lawfully impose therefor;
• not exceeding level three or the maximum of the
fine with which such offence is punishable,
whichever is the lesser, and such person shall
thereupon not be required to appear in court to
answer a charge of having committed the said
offence.
MAGISTRATES POWERS
• CONVICT AND LEVY FINE
• INCREASE FINE, REDUCE FINE
• REFUSE TO CONVICT, REFUND FINE.
STATEMENTS UNDER 141
• (9) For the purpose of deciding whether to
convict the person concerned in
accordance with this section or
determining the amount of the fine to be
imposed, the court may have regard to
any statements relevant to the offence
charged which have been given to the
police by any person having knowledge
thereof.
