WESTVILLE COMMUNITY POLICING FORUM
Police Laws and Powers are unique to South Africa. Quite different to the stuff on TV.
SAPS - Police Laws and Powers
In the course of our duties as Police, we very often encounter various questions or verbal and physical challenges from people who are either ignorant of, misread the law or simply watch too much television.
To begin, and to allow yourself to be open to education, clear your mind completely of every single episode of every American TV program where Police are featured. American law, (if you are a sane, educated reasonable person) does not apply in this country. The louder an arrested person shouts at me about his lawyer that will “have me out of here in five minutes” the bigger idiot both of us know he is.
So what is it that makes me a Policeman and what gives me power to arrest or detain a person or to search a person or place with or without a warrant.
Act 108 of 1996, The Constitution of South Africa (Hereafter written “C”)
We talk about the Supremacy of the Constitution. This means that the “C” is the highest law in the land. ALL laws, bills, acts, by laws, contracts or any other legal entity in the country is subject to supported by and must conform to the “C”.
Section 205 of the “C” empowers and mandates the South African Police Service. It also outlines the objectives of the SAPS:
| Prevent, combat and investigate crime. ||Maintain public order||Protect and serve the inhabitants of South Africa and their property||Uphold and enforce the Law|
Act 68 of 1995, The South African Police Services Act (Hereafter written SAPSA)
Section 13 (1) of this act gives a nice clear statement of law:
-“Subject to the Constitution and with due regard to the fundamental rights of every person, a member (of the SAPS) may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.”
(Emphasis and brackets added)
We can therefore see that the SAPSA, for use of a better word, entails police power and action.
So what makes me and my powers different to that of say a security guard or your armed response guard? It’s the same as what makes a doctor a doctor and not a nurse? It is the level of training, the governing laws and the oath taken. Firstly, they do not fall under the SAPSA or the Criminal Procedure Act (CPA) but another act which does not confer the same powers. Further, just the same as any oath of office, the day of my appointment, I take an oath of office swearing to the objectives in section 205 of the “C”.
Act 51 of 1977, The Criminal Procedure Act (Hereafter written CPA)
Although written into law in 1977, this act remains enforced in our current law and is in line with the “C”.
Sections 20 to 72 deal with police procedure and the application of Police powers in various circumstances.
To explain them all fully would be both time consuming to me and tedious for you to wade through. I will list the section number and what it relates to. If there are specific questions or scenarios concerning these powers that need attention in the future, I will be glad to address them.
I am certainly not hiding the sections missing; they are merely of no relevance to this forum.
20. Seizure of articles that are concerned with an offence or crime.
21. Seizure of articles under a search warrant.
22. Circumstances of seizure without a search warrant.
23. Search of an arrested person and seizure of articles.
25. Power of Police to enter premises in connection with State security or any offence.
26. Entering of premises for purposes of obtaining evidence.
27. Resistance against entry or search.
29. Search conducted in decent and orderly manner.
30. Disposal by police official of article after seizure.
37. Powers in respect of prints and bodily appearance of accused.
39. Manner and effect of arrest.
40. Arrest by peace officer without a warrant.
41. Name and address of certain persons and power of arrest by peace officer without warrant.
43. Warrant of arrest issued by a magistrate or justice.
44. Execution of warrants.
48. Breaking open premises for purpose of arrest.
49. Use of force in effecting arrest.
50. Procedure after arrest.
56. Written notice as a method of securing attendance in court.
57. Admission of guilt and payment of fines without appearing in court.
59. Bail before first appearance in lower court.
71. Juveniles in custody.
72. Release on warning in lieu of bail.
As you can see, there is quite a lot of legal framework for the Policeman on patrol, detectives or members in the office to work with. Every one of these sections describes how and under what circumstances he or she may conduct their duties.
We can look at a couple of interesting examples, where I will quote exactly what the section of the CPA says. Remember, all of these powers are effected with the full authority and sanction of the bill of rights in section 35 and limitations in section 36 of the “C”.
Section 39, Manner and effect of arrest.
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.
The person affecting an arrest shall, at the time of 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 by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.
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 form custody.
Emphasis added by me.
So in number 1, I may arrest a person without a warrant and I may use force to do so. However, I have to take into consideration that the level of force used be reasonable and justifiable and in proportion to resistance to the arrest. When you have heard the term “minimum force”, what it actually means is the minimum force necessary to overcome the resistance. That is, no overkill please.
In 2, I can make the arrest and then tell they guy why I am arresting him. Think of a logical scenario where the suspect is violent, dangerous or may flee. I can get him into handcuffs (forcibly confining his body) and when the situation is safe, inform him of his arrest and then of his rights.
3 deals with keeping you in a cell. An arrested person will be detained until lawful release or discharge. Again, I remind you to forget TV. No lawyers walk into my station and say “I’m taking my client out of here.” The suspect will only be discharged by court, released on bail or warning or by the detective who is handling the case. Any attempt at another manner of release will be considered escape form lawful custody and will be dealt with accordingly.
Section 27, Resistance against entry or search.
(1) A police official who may lawfully search any person or any premises or who may enter any premises under section 26(obtaining evidence), may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purposes for which he seeks to enter such premises.
Emphasis and brackets added.
Part 2 notes the pro viso of verbal demand, in (1), does not apply if on reasonable grounds, an article sought is believed may be destroyed. (Drugs flushed down the toilet)
Then, if I wish to search a suspect on the side of the road, I may do so without a warrant and may overcome resistance to that search. If a suspect is in a house, and I have the building surrounded, I will first shout into the house my intent to search and or arrest him and that he opens up, and then, if he does not comply, I may force entry to the house.
It is now clear that there are many legal guidelines and structures that empower and permit Policemen to act in a certain manner. These laws are in place to help us do our job. This may then dispel belief that we are a bunch of half mad mercenaries just locking people up or harassing them for fun. What you see on the side of the road, no matter how chaotic, has to be done in line with all these things for an arrest to be legal and for the case to stand in court.
Defence attorneys are as aware of these laws as we are. The easiest way to get a suspect off is to prove that we did not do things by the book. If you have been in the situation where policemen are doing things and you don’t understand why or think “they can’t do that!” you may now understand better why we don’t stop and explain at length why or how, we just work. We will carry out our duty and can always explain later. There are many things in private business I don’t understand but because I don’t deal with them I can’t be expected to fully understand. The same applies with the Police. We can’t expect you to know how and why and by what power we do things. As with me and other companies, I have to have faith that things are done correctly and according to prescribed principles, no matter my opinion or what I think is right or wrong.
Cst Stephen Clark