Criminal Procedure

• Citation: 2021/2022 YSAL 389
• Published date: 14 April 2023
• Pages: 389-442
• Author: le Roux-Kemp, A.
• Date: 14 April 2023

389

1. INTRODUCTION

For the year under review, there were no major legal developments or

noteworthy cases presenting new or alter native avenues for the development

of crimina l procedure in South Africa. I n selecting cas e law for discussion

here, a pragmatic approach was therefore applied: an effort was made to

cover a wide range of topics in crimina l procedure, including arrest, bai l,

provisions of the Prevention of Organis ed Crime Act,1 various pleas in

terms of s 106 of the Criminal Procedure Act,2 and also a d iscussion of a

Constitutional Court deci sion on the constitutional i nvalidity of s 13(7) of

the South African Police Ser vice Act.3 The cases selecte d for discussion

present either unique or interest ing factual scena rios to which the law of

crimina l procedure was applied, or important clari fications on matters

of import for crimin al procedure, including the i nterpretation of various

legislative provisions. In two of these cas es important diss enting opinions

are also highlighted.

2. LEGISLATION

2.1 CHILD JUSTICE ACT

The Minister of So cial Development, in terms of s 56(3)(a) of the Child Justice

Act,4 published the part iculars of each accredited diversion service provider

and diversion programme in GN 1909, GG 46059 on 18 March 2022.

* BA LLB LLD (Stell) CML BMus Hons BMus (SA); Associate Professor, University of

Lincoln (UK). ORCID: https://orcid.org/0000-0001-7186-7662.

1 121 of 1998.

2 51 of 1977.

3 68 of 1995.

4 75 of 2008.

Criminal ProcedureCriminal Procedure

Andra le Roux-Kemp*

2021/2022 YSAL 389

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YeArbooK oF south AFrICAN LAW

390

2.2 CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT ACT

The President proclaimed the com ing into operation of s 2 of the Criminal

Law (Forensic Procedures) Amendment Act5 in GG 45739 on 31 January

2022. Section 2 of the Crim inal Law (Forensic Procedures) Amendment Act

inserts ss 36D and 36E into the Cri minal Procedure Act, which respectively

provide for police powers with regard to buccal samples, bodily samples

and crime scene samples, and sa mples for investigation purposes.

3. CASES

3.1 ARREST WITHOUT A WARRANT IN TERMS OF SECTION 40(1)(b)

OR SECTION 42(1)(a) OF THE CRIMINAL PROCEDURE ACT

In R aduvha v Minister of Safety and Security,6 the Const itutiona l Court

summarise d police powers as follows:

Section 205(3) of the Constitution [of the Republ ic of South Africa,

1996] mandates the police to ‘prevent, combat and investigate cri me,

to maintain publ ic order, to protect and secu re the inhabitants of the

Republic and their proper ty, and to uphold and enforce the law’. In

short, the police are ther e to ensure that we can l ive, go about our

daily business a nd sleep peaceful ly in our homes at night. Th is is

a constitutional m andate. To assist them to carry out t hese onerous

constitutional r esponsibilit ies for the safety a nd security of ou r

people, the law grants them a var iety of powers, including the powers

to arrest and deta in suspects, and e nter and search prem ises and

people under certai n circumscribed ci rcumstances.7

In the first four cas es discusse d in this chapter, the focu s is on the police

power to arrest, and specifical ly to arrest a suspect wit hout a warrant.

These cases are i mportant as arrest con stitutes one of the most drastic

infringement s on the rights of an individual, ie the right not to be deprived

of freedom arbitrarily or without just cause, and t he right not to be restricted

in one’s freedom of movement.8

5 37 of 2013.

6 2016 (2) SACR 540 (CC).

7 Para 3.

8 A le Roux-Kemp ‘Criminal procedure’ 2017 Annual Survey of South African Law 360–361.

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CrImINAL proCedure 391

3.1.1 A contravention of se ction 55 of the Criminal L aw (Sexual

Offences and Related Ma tters) Amendment Act properly falls

under Schedule 1 of the Cri minal Procedure Act for the pu rpose

of affectin g an arrest without a warrant a s contemplated in section

40(1)( b) of the Crimi nal Procedure Act

The deceased in Kami v Minister of Police9 c laimed damages from t he

Minister of Police and the National Di rector of Public Prosecutions (NDPP)

for unlawful arre st and detention, and malicious pros ecution, arising f rom

a rape incident in respect of which t he deceased was allegedly involved.

The complainant in the rape ca se testified th at she was approached by four

males, one of whom was the deceased, and that th ree of the males raped her.

When it was the turn of t he deceased, he indicated that he would not rape

her as he knew her and they were cousin s. The deceased also persuaded the

other three men to apologise to t he complainant for having assa iled her.10

Following a pointing out by the complaina nt, the deceased was arrested

at his house on 23 September 2015, by a police officer without an arrest

warrant, and charged with havi ng contravened the provisions of s 3 of the

Criminal Law (Sexua l Offences and Related Matters) Amendment Act.11 The

deceased was brought before a magistrate on 28 Septem ber 2015, on which

day the matter was postponed to 2 October 2015. The deceased i nformed the

court that he wished to apply for bail and the prose cutor indicated that the

bail application would be opposed.12 The matter was further p ostponed to

5 October 2015, at which time bail was refused and t he deceased, who had

remained in cu stody since his arrest, was rema nded to 27 November 2017.

On 5 November 2015, the charges against the deceased were withdrawn.13

The deceased’s case against the fi rst and second defendants was essentially

that there was no prima facie ca se against him ju stifying t he arrest, his

continued detention, or the opposing of hi s bail application.14 Only the claim

for damages against the al leged unlawful arrest will be di scussed here.

The first defendant denied t hat the deceased had been un lawfully arrested

and submitted that the decea sed had been arrested by a police officer in the

presence of his parents on a reas onable suspicion (on the basis contemplated

in s 40(1)(b) of the Criminal Proce dure Act) that he had committed a Schedule 1

offence, namely rape; that he had been informed of hi s constitutional rights;

that he was detained in accorda nce with s 50 of the Act; that he had been

charged withi n 48 hours of his arrest; th at the decision to oppose bail was

taken by the relevant prosecutor af ter an assessment of the cas e docket;

9 [2022] ZAECELLC 6.

10 Para 3.

11 32 of 2007. See para 10.

12 Para 10.

13 Para 12.

14 Para 24.

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