The do’s and don’ts of citizen’s arrest in South Africa
This topic relates directly to every member of the community, but especially to Street or Neighbourhood Watches. It is a serious topic so take my warnings as they are read.
The first thing I have to talk about is American television. NOTHING you see on TV relates to real life here, now in South Africa. Not the laws, not the criminal procedure and especially, the South African Police Services do not have “badge numbers”, so don’t ask for one.
You must understand that if arrested here, a suspect can shout, “My lawyer will have me out of here in five minutes!” as much as he likes. It won’t happen. If he thought he would walk the case because he hasn’t been read his “Miranda Rights”, he needs to know that the concept of “Miranda rights” was enshrined in US law following the 1966 Miranda v. Arizona Supreme Court decision. It doesn’t apply here. What does apply, I will explain later.
There are a few essentials that must be understood and taken heed of. If you don’t, and do the wrong thing, you can find yourself in hot water.
“Arrest” is defined under the Criminal Procedure Act (51 of 1977) section 39 and 40 as a method of securing a person, reasonably suspected of having committed a crime, appearance in a court. It is not punishment; it is not means for you to kick someone’s head in.
When a person is arrested, their Constitutional rights are limited. The person’s rights to freedom of movement and communication are severely restricted. (I don’t know how “they” have more rights than “us”.) If you care to look, Sections 35 (1) and (2) set out the rights of an arrested and detained person. While an arrest is being effected, a Police official does not need to have to try and remember this list, nor have to repeat it. In the Community Service Centre is a register called the SAP14(A) which is completed and the original goes to the arrested person. This is a full list of his or her rights and under what circumstances they may use them. (To consult with a priest or minister, for example.) You and I also have this right naturally without being arrested, but because the person is confined and his rights limited, he must be reminded when and how he can exercise what right. (And not one Miranda in sight.)
So a Police official, by the oath of office taken, has powers of arrest and there are a host of occasions (17 in all) when a person can be arrested without a warrant. Remembering that arrest (a form of lawful assault) is a serious limitation of someone’s rights, here briefly are some of those occasions. Concentrate now:
A peace officer (including Security Officials) may arrest a person without a warrant who:
- Commits or attempts to commit an offence in his presence. (You need to be sure a crime has indeed been committed. Go back and read my definitions!)
- Who escapes or attempts to escape lawful custody. (If a crook is escaping a policeman and you are an able bodied male over 18 years old and you help him escape or do nothing, you can be charged for defeating.)
- Has in his possession any implement of housebreaking or carbreaking.
- Is found in possession of property reasonably suspected of being stolen.
- Wilfully obstructs him in the course of his duties.
- Is reasonably suspected of committing an act of Domestic Violence.
Right, so these are the ones you will face most often. It gets more complicated because in and among these few points exist the Dangerous Weapons Act, Domestic Violence Act, very possibly the Child Care/Children’s Act and other elements of the CPA referring to search and seizure. Sections 20-27 of the CPA prescribe when, how and under what circumstances a Police Official my enter a property (if you tell a Policeman he is trespassing he will ignore you, if not treat you with contempt) search a premises, a vehicle or a person. Once again, forget TV. I do not need a warrant or a person’s permission if I believe and can justify my suspicion that a crime has been committed at that place or by that person. It gets more complicated than that but this is the basics, not so?
The main trick is, if you believe you may one day have to arrest someone, to educate yourself around a few things. Google the SA Dangerous Weapons Act. Don’t believe what your drunken friends said after the rugby last week. Look it up. Google the Domenstic Violence Act and see how complicated and detailed it is. I have to go into those situations with all that on my mind.
Ok, so you are now a bit more familiar with the powers and details surrounding Arrest? No you are not. Grabbing the bad guy is a small part. There is a host of legal paperwork that has to be completed in a docket to ensure its legality and lawfulness. Let’s talk use of force.
Section 49 of the Criminal Procedure Act is the (in)famous section regarding the use of force in effecting arrest. The entire subsection regarding using lethal force (shooting) to effect arrest has been repealed. As discussed in earlier articles, you should now be familiar with under what circumstances you may shoot at a person. DRAWING and POINTING a firearm is different. Here we start discussing levels of force and the topic everyone is an expert in, “minimum force”. So let’s get that over with first. The rule of minimum force in the realm of arrest is: the minimum NECESSARY force to overcome resistance to lawful arrest or an unlawful attack. Note you may not resist arrest. Remember I said arrest is “lawful” assault and is enshrined under the CPA and the occasions under which it may be effected? If I am arresting someone, the absolute minimum force I can lawfully use is my words, “you are under arrest” and me touching your body. If there is no resistance, no further force is necessary nor may be used. If there is the threat of resistance I may then grapple the person, if that doesn’t work I may up it to use of baton, dog, etc. (Don’t sweat, we do know what we are doing, but so do you!) If there is risk of the suspect fleeing I may confine his body by use of handcuffs, leg irons, lock him temporarily in a vehicle etc. Remember that once under arrest, a person’s rights are limited. So they must be effectively limited.
Every time an arrest is made, the arresting officer, whether a police official or a security official, must write a detailed statement as to the circumstances and reasons for arrest. They must describe how they came about the suspect, what the suspect was alleged to have done, witnessed by whom (they also write a statement) and why they were arrested. Also how they were transported to the SAPS cells and if they had injuries. If you as an arresting officer injure a suspect you have to take him to a Gov hospital and get him fixed up before he is detained. More paperwork. A criminal docket is thus opened for the crime alleged, with a complainant or victim statement included. (Don’t stress, the Police do all of this.)
If there are exhibits such as weapons or property involved, they must be treated as such and not handled inappropriately. They also now fall under the CPA. If found by a person other than a Police official, the exhibits should be pointed out immediately to a police official and not just picked up or handled carelessly. Think firearms. There is ballistic and biological evidence on that item. You pick it up and shove it in your pocket you could be destroying factual links between the suspect and the crime. We rather put a bowl or draw over it or circle it with a marker until it is photographed. Contaminating evidence is not a joking matter. Imagine a serious crime being committed against you and the case getting thrown and the suspect walking because some twit messed up the evidence on the scene.
So how does this all relate to you, a private citizen, if you believe you must make an arrest?
Well the first answer is as I suggested earlier, educate yourself. If you wish to take on the responsibility, you need to know what you are getting in to. I can’t decide I am going to assist paramedics unless I have at least a good knowledge of first aid and basic ambulance care. If I am untrained and place my hands on an injured person and conduct some procedure, I can be held liable for the outcome. Ignorance is not an excuse.
Second, be sure you are doing the right thing. Go back to the list of circumstances of arrest, especially the first one. You have to have seen the crime being committed or have REASONABLE and JUSTIFIABLE belief that the suspect committed the crime. You are just as liable as me for a charge of unlawful arrest.
Be careful! If you confront a suspect, firstly be safe, you do not know what that suspect has done in his life. He may have killed several people and may be willing to kill you to escape. Inform the suspect that he (or she) is under arrest. They must lie down and keep still. Get the Police or a Security official to the scene as quickly as possible. Criminals seldom work on their own. If you are alone, you may be outnumbered and get into danger.
Third, go back to the use of force. As angry as you are you will find yourself in deep trouble if you bust up a suspect. If you cannot justify his injuries, you will join him in the cells. Beware of “mob justice”. Catching a housebreaker is exciting, but not the reason for everyone in the street to come kick him. Go back to “minimum force”. Once the resistance or threat has been overcome, the use of force must stop immediately. You may confine the suspect in any reasonable and justifiable manner. If you have handcuffs, cable ties or a piece of string, you may use them. BUT not to cut off his blood supply! If I find a suspect with swollen blue hands, again, you will join him in the cells after he comes back from hospital. Trust me, there are plenty of lawyers out there who would love to open a civil case and sue you because he has suffered nerve damage or whatever. Not funny!
Fourth, preserve exhibits. If you grab a legit suspect and search him (for weapons) keep everything together and make a note of what came out of which pocket. DO NOT BE TEMPTED TO PLACE EXHIBITS ON THE SCENE. The fastest way to prison is to manipulate the crime scene. I have seen thousands, you maybe five. I can see one that has been messed with and have no qualms with reporting so in the docket. You will go to jail if you place a gun or knife in the hand of a dead or injured suspect if it is later established that he happened to be the one person in 83 who is left handed!
Under search, a male may only search a male and female a female. Any search must be consummate with human dignity and privacy. I don’t care what the suspect is alleged to have done, you may not have all the women in the neighborhood leer over him while you tear his pants off. (Human rights, rights of an arrested person, innocent until proven guilty)
Fifth, hand the suspect and exhibits over to the SAPS or Metro Police as soon as possible. You are not empowered to handle suspects or especially the evidence. There is a very important thing called “chain of evidence” and it refers directly to what I discussed earlier. If you have a firearm, put it away in your holster when the Police arrive. We know you will be wound up and excited but we don’t need guns pointed in all directions. Serious caveat: if you pose a threat and do not respond to instructions, you will be dealt with accordingly.
Last, remember please you are supposed to be one of the “good guys”. I plead to you to act like it. Behave within the law. The sure way to get the Police irritated with you is to act like a vigilante. Don’t tell the Police what to do. The moment they arrive it is the Police’s crime scene. They are in control. No negotiations. If you are mindful of your responsibilities and behave in a respectful, lawful and mature manner, you will receive all the cooperation and support you desire, I assure you.