INVESTIGATION AND PROSECUTION OF CRIME - LEAD-IN PAPER (FROM CRIME, LAW AND THE COMMUNITY, 1976 - SEE NCJ-51708)

• NCJ Number: 51713
• Author(s): J H VAN ROOYEN
• Date Published: 1976
• Length: 17 pages
• Corporate Author: Juta and Co, Ltd
• Publication Format: Document
• Language: English
• Country: South Africa

Annotation

JUDICIAL CONTROL OF ARREST AND DETENTION, PROCEDURES DURING AND IMMEDIATELY AFTER ARREST, POLICE DISCRETION AND METHODS, AND THE DIMINISHMENT OF COURT POWERS THROUGH LEGISLATION ARE DISCUSSED FOR SOUTH AFRICA.

Abstract

IN SOUTH AFRICA, THERE ARE TWO METHODS OF OBTAINING AN ARREST WARRANT: FROM A JUDGE BEFORE AN ARREST (WITHOUT GIVING SUBSTANTIVE CAUSE FOR THE ARREST); OR FROM A JUDGE AFTER AN ARREST AND DETENTION, BASED ON STATED REASONABLE GROUNDS OF SUSPICION THAT AN OFFENSE HAS BEEN COMMITTED. IT IS ARGUED THAT JUDICIAL CONTROL OF ARREST IS NOT SUFFICIENT TO PROTECT CITIZENS FROM UNREASONABLE ARREST AND DETENTION. IT IS NOTED THAT WHEN AN ACCUSED PERSON IS ARRESTED WITHOUT A WARRANT, SHE OR HE MUST BE INSTRUCTED AT THE TIME OF ARREST OF THE CHARGES AGAINST; OTHERWISE, THE SUBSEQUENT DETENTION IS ILLEGAL. A RECENT COURT DECISION IS DEEMED TO HAVE CIRCUMVENTED THIS LAW IN HOLDING THAT WHERE PERSONS ARE ARRESTED UNDER CIRCUMSTANCES WHERE IT MUST BE QUITE CLEAR AS TO THE REASON FOR THE ARREST, INFORMING THEM OF THE CHARGES IS NOT REQUIRED. ARREST WITHOUT WARRANT REQUIRES THAT THE ACCUSED BE DETAINED NO LONGER THAN 48 HOURS WITHOUT A WARRANT HAVING BEEN SECURED. THIS PERIOD IS CONSIDERED TOO LONG, AND IS BELIEVED TO BE FREQUENTLY USED BY POLICE TO PRESSURE INFORMATION FROM THE ACCUSED. IT IS ARGUED THAT THERE SHOULD ALSO BE CLEARER GUIDELINES AS TO WHEN POLICE SHOULD ARREST OR SIMPLY ISSUE A SUMMONS TO APPEAR IN COURT. IN DISCUSSING POLICE METHODS FOR PREVENTING CRIME, THE 'GENERAL CLEAN-UP' WHICH INVOLVES ARRESTING LARGE NUMBERS OF PERSONS FOR PETTY CRIMES WITH THE INTENT OF QUESTIONING THEM OVER THE 48-HOUR PERIOD TO DETERMINE IF THEY HAVE COMMITTED MORE SERIOUS CRIMES, IS CONDEMNED AS DESTRUCTIVE OF POLICE-COMMUNITY RELATIONS. A VARIETY OF ILLEGAL POLICE METHODS ARE DISCUSSED, AND THE EXCLUSIONARY RULE, WHICH IS NOT PRESENTLY OPERATIVE IN SOUTH AFRICA, IS ADVOCATED. A POLICY OF NONENFORCEMENT OF CERTAIN LAWS, PARTICULARLY TO VISITING BLACK DIGNITARIES, IS CRITICIZED. GENERAL CONCERN IS EXPRESSED OVER THE TENDENCY IN RECENT LEGISLATION TO INCREASE POLICE POWERS WITHOUT PERMITTING THE SPEEDY INVOLVEMENT OF THE COURTS TO PROTECT THE RIGHTS OF THE ACCUSED IN THE CRIMINAL JUSTICE PROCESS. (RCB)