Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 16 August 2019
• Pages: 406-421
• Citation: (2012) 25 SACJ 406
• Author: Petro Swanepoel
• Published date: 16 August 2019

Criminal Procedure

PETRO SWANEPOEL

University of South Africa

1. Detention before charge

1.1 Introduction

Section 35(1)(d) of the Constitution of the Republic of South A frica is

the one unambiguous constitutional provision th at is most routinely

ignored. The same applies to the provisions of s 50(1)(d) of the

Criminal Pro cedure Act 51 of 1977.

Se ct io n 1 2(1) (a) of the Constitution guar antees everyone the right

to freedom and security of the p erson which includes the right not to

be deprived of freedom arbitrari ly or without just cause. The right of

a person not to be arbitrarily depr ived of his or her freedom by arrest

or detention is also found in article 9 of the Universal Decla ration of

Human Rights, in art icle 9(1) of the Internationa l Covenant on Civil

and Political Rights and article 6 of the A frican Char ter on Human

and Peoples’ Rights, to name but a few. ‘Arbitrari ness’ is a broader

concept than ‘unlawfu lness’ and has been dened in Womah Mukong

v Cameroon (United Nations Human Rights Committee UN document

CCPR/C/51/D/458/1991, 10 August 1994) at para [9.8], available at

www.usip.org/les/MC2/MC2-15-ch9.pdf, accessed on 10 November

2012) to include elements of ‘inappropriateness’, ‘injustice’, ‘lack of

predictability’ a nd due process of law.

Section 35(1)(d)(i)–(ii) of the Constitution provides that ever yone

who is arrested for allegedly committ ing an offence has the right to

be brought before a court as soon as reasonably po ssible, but not later

than 48 hours after t he arrest; or the end of the rst cour t day after the

expiry of the 48 hours if t he 48 hours expire outside ordinar y court

hours, or on a day which is not an ordinary cou rt day.

Section 50 of the Crimi nal Procedure Act 51 of 1977 has a similar

provision, but allows for exigent circumstances and practical solutions

to the 48-hour period computations. T he relevant subsections of

section 50 provide as follows:

‘(1)(a) Any person who is arrested with or without warrant for allegedly

committing an offence, or for any other reason, shall as soon as possible be

brought to a police station or, in the case of an arrest by warrant, to any other

place which is expressly mentioned in the warrant.

406 SACJ . (2012) 3

(2012) 25 SACJ 406

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(b) A person who is in detention as contemplated in paragraph (a) shall,

as soon as reasonably possible, be informed of his or her right to institute

bail proceedings.

(c) Subject to paragraph (d), if such an arrested person is not released by

reason that–

(i) no charge is to be brought against him or her; or

(ii) bail is not granted to him or her in ter ms of section 59 or 59A, he or she

shall be brought before a lower court as soon as reasonably possible,

but not later than 48 hours after the arrest.

(d) If the period of 48 hours expires–

(i) outside ordinary court hours or on a day which is not an ordinary court

day, the accused shall be brought before a lower court not later than the

end of the rst court day;

(ii) or will expire at, or if the time at which such period is deemed to expire

under subparagraph (i) or (iii) is or will be, a time when the arrested

person cannot, because of his or her physical illness or other physical

condition, be brought before a lower court, the court before which he

or she would, but for the illness or other condition, have been brought,

may on the application of the prosecutor, which, if not made before the

expiration of the period of 48 hours, may be made at any time before,

or on, the next succeeding court day, and in which the circumstances

relating to the illness or other condition are set out, supported by a

certicate of a medical practitioner, authorise that the arrested person

be detained at a place specied by the court and for such period as the

court may deem necessary so that he or she may recuperate and be

brought before the court: Provided that the court may, on an application

as aforesaid, authorise that the arrested person be further detained at a

place specied by the court and for such period as the court may deem

necessary; or

(iii) at a time when the ar rested person is outside the area of jurisdiction of

the lower court to which he or she is being brought for the purposes of

further detention and he or she is at such time in transit from a police

station or other place of detention to such court, the said period shall be

deemed to expire at the end of the court day next succeeding the day

on which such arrested person is brought within the area of jurisdiction

of such court.

(6)(a) At his or her rst appearance in court a person contemplated in

subsection (1)(a) who–

(i) was arrested for allegedly committing an offence shall, subject to this

subsection and section 60–

(aa) be informed by the court of the reason for his or her further

detention; or

(bb) be charged and be entitled to apply to be released on bail,

and if the accused is not so charged or informed of the reason for his or

her further detention, he or she shall be released; or

(ii) was not arrested in respect of an offence, shall be entitled to adjudication

upon the cause for his or her arrest.

(b) An arrested person contemplated in paragraph (a)(i) is not entitled to

be brought to court outside ordinary court hours.’ (Emphasis added.)

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