Arrest and Search and Seizure of Private Property

What Must Police Officials Consider in Order for Their Conduct to Be Lawful?

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. S38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. arrest
  2. summons
  3. written notice
  4. indictment

Police officers cannot arrest someone just because he/she feels like it or has a vague hunch that someone might be a criminal. Police officers have to be able to justify their arrest usually by showing some tangible evidence that led them to reasonable cause. These considerations before effecting an arrest are guidelines and will be determined objectively based on each set of facts.

Considerations for arrest

The considerations include, but are not limited, to the following:

  1. The policeman should consider whether there are reasonable grounds to suspect that the person to be arrested has committed an offence referred to in Schedule 1.
  2. In determining whether such reasonable grounds exist, the policeman should analyse the evidence at his disposal critically.
  3. While there may be circumstances in which a policeman can form a reasonable suspicion based only on a witness statement, those circumstances will be rare. It would be preferable for a policeman to find corroborative evidence before making an arrest.
  4. Where the policeman himself witnesses events which give rise to a reasonable suspicion that a Schedule 1 offence has been committed, it may be that no corroborative evidence is necessary.
  5. After the policeman has determined that there are reasonable grounds for suspecting the commission of a Schedule 1 offence, he must exercise his discretion to determine whether there are circumstances which militate in favour of effecting a warrantless arrest. Usually the risk of the suspect absconding or committing further crimes if the policeman delays in obtaining a warrant, would militate in favour of a warrantless arrest.
  6. A policeman should always consider whether the accused’s attendance can be procured through a summons as this is the preferable method of summoning a suspect’s attendance at trial. If the policeman concludes that there is a risk of flight if a summons is served on the suspect, the policeman should consider whether the ends of justice may be defeated if he approaches a Magistrate or Justice of the Peace to obtain a warrant.
  7. In determining whether or not to effect an arrest, the arresting officer should carefully consider his/her standing orders. Where a police officer exercises a discretion in violation of standing orders, that may in itself be an indication that the discretion was not properly exercised and that the warrantless arrest was unlawful.

As a general rule, the object of an arrest is to secure the attendance of such person at his or her trial. A police officer may not arrest a person in order to punish, scare, or harass such person. It is a severe infringement of a person’s fundamental Constitutional, rights such as Freedom and Human Dignity. As set out above, police officers are to ensure they consider a wide range factors before effecting an arrest. They are not merely the completing a ‘job’ but ensuring that a suspect is brought to justice, not harm or, even worse, their death.

The Criminal Procedure Act further allocates the power to the police to search any person, container or premise of that person without a search warrant. The power granted to them further allows them to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed.

Search and seizure can only occur in the following circumstances

  1. The owner gives consent to the police official; or
  2. if the owner refuses to give his/her consent and the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

Police officers are clearly given a wide scope of power in effecting an arrest or even during the search and seizure of a person’s property. It is for him/her to make a value judgment on the spot and determine whether the required reasonable grounds do in fact exist in the scenario they are presented with.

It is, accordingly, debatable whether the South African Police Service provides sufficient guidelines and training allowing officers to make the appropriate decision given each circumstance. The purpose remains to ensure Justice, not retribution and destruction.

Article written by Lourens van der Walt

Andrew Phillips
Partner | Litigation Attorney