Individual Rights & Rule of Law

The Exercise of Powers and the Vindication of Individual Rights

• Criminal procedure balances fundamental values and incorporates normative terms.

• Constitutional and normative guardrails limit state power, especially within the criminal justice system.

• Public or state power must be accountable and subject to scrutiny.

• In ancient Rome laws aimed to prevent abuse of power by magistrates.

• Common abuses included denying rights of appeal and an accused citizen's right to present their case.

• Magna Carta (1215) in England established procedural rights, including habeas corpus and due process.

• Clause 39 states that no free man should be seized/imprisoned or stripped of rights except by lawful judgment.

• Due process rights recognized by Magna Carta and Cortes de León were important milestones in the Rule of Law.

• Enlightenment ideas on liberty and reason led to Rule of Law principles, including due process.

• Hans Kelsen developed the 'pure theory of law' to shield legal rules from political or ideological influence.

• Kelsen's Rechtsstaat says officials can only act with legal authority; the legal order is based on legality.

• Kelsen recognized the need for controls over arbitrary power and his greatest contribution was from a procedural point of view.

• The English 'Rule of Law' is similar to Rechtsstaat, stating police act due to original discretionary authority under the law.

• Kelsen's formalism can be questioned as to whether it constituted the best defense against the worst abusers of the law.

• Norberto Bobbio wanted institutional law-making, not just formal validity of rules.

• John Dugard noted that the Terrorism Act of 1967 lacked justice, fairness, or morality.

• The post-apartheid legal order, per the 1996 Constitution, moved from a 'culture of authority' to justification.

• Pius Langa noted the importance of sticking to clear and good rules, but ensuring justice when upholding the law.

• Transformative working of the Bill of Rights provides the key to just application of legal rules in the post-apartheid South Africa.

• The post-apartheid legal order protects individual personality and property rights.

• Section 36 of the Constitution contains the general limitations clause.

• The law strives to balance society's demands in bringing offenders to justice, and upholding individual rights.

• Constitutionality is only determined by measuring against s 36 of the Constitution.

• Requirements of limitations to be regarded as constitutional:

  • Must be contained in a law of general application
  • Must be reasonable and justifiable in an open and democratic society

• Factors a court considers when determining compliance with the requirements.

  • The nature of the right
  • The importance of the purpose of the limitation
  • The nature and extent of the limitation
  • The relation between the limitation and its purpose
  • Less restrictive means to achieve the purpose

• The factors indicate whether the limitation can be considered proportional to the limitation.

• Criminal procedure aims to protect society by enabling effective investigation and bringing offenders to justice.

• The Child Justice Act 75 of 2008 gives further effect to South Africa's international and regional human rights obligations.

• The notion of justice is seen through holistic and normative terms.

• Criminal proceedings involving vulnerable accused persons must have judicial sensitivity and vigilance.

• Human dignity demands those in criminal cases are treated with respect, influencing the criminal process beyond formalism.

• Criminal procedure prevents arbitrary action by police or private persons, and those acting beyond those rules do so unlawfully.

• Consequences of unlawful conduct.

  • A person unlawfully arrested or searched may institute a civil claim
  • An unlawful search, seizure, or arrest may constitute an offense
  • Section 35(5) of the Constitution provides that evidence from rights violations must be excluded if it makes the trial unfair.

The Principle of Legality in the Context of Criminal Procedure

• Section 1 of the Constitution entrenches South Africa as a constitutional democracy, with respect for the rule of law.

• Legality is a safeguard against abuse of power, and one of the pillars of the rule of law.

• Three pillars of the rule of law include:

  • Organs of state must obey the law.
  • The state cannot exercise power unless the law permits it.
  • Laws must be clear and accessible.

• In Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, the government acted unlawfully in failing to arrest Omar Al-Bashir, undermining the first pillar of the rule of law.

• State power can only be exercised if the law permits it to do so.

• There are remedies available in law to enforce individual rights and take action against the state.

• In a constitutionalised criminal justice system, this involves a substantive analysis of the norms that should guide state action.

• In Highstead Entertainment t/a ‘The Club' v Minister of Law and Order, an interdict was granted to prevent unlawful arrests

• The principle of legality entails that 'no person should be subjected to punishment except for conduct defined as a crime'.

• Legality plays a role even in procedural criminal law.

• Requirements for lawful arrest (including use of force) should be clear to protect the public against unlawful power.

• In this sense legality enables lawfulness and respect for the rule of law.

The Requirement of Reasonableness in the Exercise of Powers

• Statutory provisions for searches, seizures, and arrests repeatedly refer to ‘reasonableness'. Section 20 of the Criminal Procedure Act provides that that certain articles may be seized if they are believed to be articles of a certain nature. Section 21(a) authorises the issuing that there are 'reasonable grounds for believing' certain articles will be found at a certain place.

• 22(b) authorizes police to conduct search if they believe that certain circumstances exist.

• Section 24 allows a person in charge of premises to search if they reasonably suspect certain circumstances.

• Sections 26 and 48 authorize entry where it is reasonably suspected that a state of affairs exists.

• Sections 42-43 empower persons to arrest people ‘reasonably suspected' of having committed certain offences.

• Section 41 authorizes peace officers to require that certain persons provide certain information if they are ‘reasonably suspected' of having committed offences.

• Statutes also empower those to use force as may be necessary to gain entry to premises, or to overcome resistance.

The requirements the the following guidelines may be followed:

• The requirement of reasonableness requires ‘reasonable grounds' from which to draw an inference. Force is 'reasonably necessary' to achieve a goal if there are ‘reasonable grounds' to believe it. A person only has ‘reasonable suspicion' if ‘reasonable grounds' exist to believe the state of affairs exists. LSD v Vachell

A person will only be said to have ‘reasonable grounds' to believe that an action is necessary if:

• he or she 'believes'
• his or her belief or suspicion is based on certain 'grounds'
• any reasonable person would have held the same belief or suspicion.
• Grounds refers to facts.
• There will only be grounds for a certain belief if the belief is reconcilable with the available facts. Van Heerden
• The existence or otherwise of a fact is objectively determined. Nell
• To determine what the facts truly are, a person makes use of their five senses.