POWER OF FPOs TO ARREST AND THE RIGHTS OF ARRESTED PERSONS

Purpose of an arrest
  • 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:
    • arrest
    • summons
    • written notice
    • indictment.

Summons
  • Only a prosecutor has authority to issue a summons.
  • Summonses are used only if the accused is not in custody and no warrant of arrest has been issued.
  • Summons is used when there is no danger of flight or interference with witnesses.
  • Summonses are less intrusive than arrests.

Written notice to appear
  • As Peace Officers, FPOs may issue Notices to Appear in terms of s56 of the Criminal Procedure Act.
  • This requires an accused to appear at a specified place on a specified date and time to answer a charge or offence.
  • It includes an endorsement in terms of s57 wherein an accused can admit guilt and pay a fine without appearing in court.
  • The fine is limited by law.

Admission of guilt fine
  • When prosecutor issues a summons, it can include an endorsement that the accused may admit guilt with respect to the offence.
  • Similarly, when an FPO issues a Notice to Appear, the accused can sign an endorsement and admit guilt.
  • By paying a fine, the accused can avoid having to go to court.
  • Payment of fine will occur at the offices of the clerk of the court with jurisdiction in the area, at the police station in the jurisdiction, or at a specified local authority.
  • Fines must not exceed the amount prescribed by law for an offence.

Powers of arrest
  • Section 29 of the NVFFA states that an FPO may arrest any person whom he or she reasonably suspects to have committed:
  • In making an arrest, an FPO must:
    • not use more force than is reasonably necessary if the arrest is resisted
    • respect the constitutional rights of the person arrested.
  • An FPO may not delegate the power to arrest.

How to arrest a person – Guidelines on proper exercise of powers
  • An accused may be arrested with or without a warrant.
  • It is always better to obtain a warrant if possible, but the in which FPOs work may make this difficult.
  • The advantage of obtaining a warrant are that it can safeguard an FPO against civil claims of unlawful arrest.
  • If a warrant is used, a copy must be provided upon request.

Making an arrest
  • "I am ________, an appointed Fire Protection Officer. Here is my ID as proof.
  • You are under arrest for____________________
  • You have the right to remain silent. Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney. If you cannot afford one, the State will provide you with one under certain circumstances.
  • You have the right to make one telephone call."

Use of force during arrest
  • If a person submits to arrest there is no need to use force.
  • Arrest is not punishment but is a means to secure the attendance of the alleged offender in court.
  • If the person does not submit, use only such force as is necessary to effect the arrest.
  • Use minimum force – only as much as is necessary to overcome resistance to arrest.
  • Your use of force must be proportionate in the circumstances – this may be determined by the type of offence.
  • Any use of force must be justified as necessary to affect the arrest or justified by self-defence.

Court assessment of unjustified force
  • Was the use of force justified under the circumstances?
  • Was there a balance between the need to use force and the amount of force used?
  • What was the extent of the arrested person’s injuries (if any)?

Arrest and detention
  • Although FPOs have the power of arrest, they do not have the power of detention, other than for the initial period prior to handing over custody of an arrested person to the SA Police Service.

Right to remain silent s35 (1)(a)
  • Although arrested persons have the right to remain silent, they are required to provide their names and addresses.
  • The arresting officer must inform the arrested person of the consequences of not remaining silent – that is, that any statement made by the accused may be used as evidence against the accused in a court of law.

Right to be brought before court within 48 hours
  • Section 48 of the Criminal Procedure Act provides for bringing an arrested person before a court of law within 48 hours.
  • Section 35(1)(d) of the Bill of Rights states accused have the right to be brought before court as soon as reasonably possible, but no later than:
    • 48 hours after the arrest; or
    • the end of the first court day after expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day.
    • The 48 hour period applies only to ordinary court hours and days and as such excludes weekends and public holidays from the calculation.

Right not to be compelled to make confession
  • Section 35(1)(c) guarantees arrested persons of the right not to be compelled to make a confession or admission that could be used as evidence against them.
  • If persons are forced to make a statement against their will, such statement will not be admissible in a court of law.

Other rights of arrested and detained and accused persons
  • Section 35(4) of Constitution requires that when giving information to a person, the information must be given in a language the person understands.
  • Section 35(5) of Constitution states that evidence obtained in a manner violating rights must be excluded from trial if it would render the trial unfair or defeat the administration of justice.

Arresting juveniles
  • Juveniles are defined as persons under 18 years.
  • The arresting officer must notify a juvenile’s parents or guardians of the arrest.
  • Juveniles may only be detained in houses of safety.
  • Juveniles are commonly released on warning into parents’ custody.
  • The Constitution requires juveniles not be detained with persons above the age of 18.

Related resources

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Acknowledgements