Aspirant Prosecutor Programme Study Guide 2025 (Part 6) PDF

PART III THE CRIMINAL PROCEDURE ACT - 153 - Section 1 – Definitions Aggravating circumstances Aggravating circumstances in relation to robbery or attempted robbery means (a) The wielding of a fire-arm or any other dangerous weapon or (b) The infliction of gri...

PART III THE CRIMINAL PROCEDURE ACT - 153 - Section 1 – Definitions Aggravating circumstances Aggravating circumstances in relation to robbery or attempted robbery means (a) The wielding of a fire-arm or any other dangerous weapon or (b) The infliction of grievous bodily harm or (c) A threat to inflict grievous bodily harm by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence. At least one of the abovementioned situations must be present. The exact role of each robber (perpetrator, co-perpetrator or accomplice) need not be determined before he can be held guilty of robbery with aggravating circumstances according to S v Mofokeng 2014 (1) SACR 229 (GNP). A dangerous weapon is defined in section 1 of the Dangerous Weapons Act, 2013 as "means any object, other than a firearm, capable of causing death or inflicting serious bodily harm if it were used for an unlawful purpose. (a) The wielding of a fire-arm or dangerous weapon does not require the pointing of a fire- arm at the victim. In Hlongwane 2014 (2) SACR 397 (GP) the court said: “No proof beyond an action which amounts to “wielding” a dangerous weapon during the course of a robbery is required in order for aggravating circumstances to be present’ The mere carrying, holding or possession of a firearm or dangerous weapon will not amount to aggravating circumstances unless they constitute a threat to inflict grievous bodily harm. (b) The infliction of grievous bodily harm will depend on the facts of each case. This aspect must be determined objectively and the intention of the robber is irrelevant. (c) The threat could be uttered expressly or through conduct. In S v Anthony 2002 (2) SACR 453 (C) a toy firearm was used during the robbery. The court held that the threat requirement would be satisfied if the victim subjectively experienced the conduct of the robber as a threat to inflict grievous bodily harm. An implied threat could be present and can be inferred even when no fire-arm or dangerous weapon is wielded. In S v - 154 -  Hlongwane (supra) the court said that the holding of a rifle with its muzzle facing the ground comfortably fits within the definition of a threat to inflict grievous bodily harm. Section 6 (a) – Power to withdraw charge A DPP or any person conducting a prosecution at the instance of the State may withdraw a charge before an accused has pleaded to the charge. In terms of section 20(5) of the NPA Act 32 of 1998, DPPs have been designated by the National Director of Public Prosecutions (NDPP) to issue authorisations to prosecutors in their areas of jurisdiction to institute and conduct prosecutions and, where necessary, to prosecute appeals arising from these. This authority to prosecute refers to the day-to-day decisions which prosecutors are called upon to take in the execution of their function. There are exceptions to this general authority to prosecute and certain prosecutions that may not be instituted without the authorisation of a DPP or the National Director of Public Prosecutions. The offences mentioned in Part 8 of the Prosecution Policy Directives are examples of such cases. A charge may only be withdrawn before an accused has pleaded to a charge. When a charge is withdrawn before an accused has pleaded to the charge, the accused is not entitled to a verdict of acquittal in respect of that charge. The fact that there is no verdict on the merits of the case by the court when a case is withdrawn, allows the State to prosecute the accused for the same charge in the future, provided that there is sufficient admissible evidence for a reasonable prospect of a successful prosecution. The Prosecution Policy Directives directs that once enrolled, cases may only be withdrawn on compelling grounds, e.g. if it appears after thorough police investigation that there is no longer any reasonable prospect of a successful prosecution or the accused has successfully completed a diversion programme. Cases should not be withdrawn solely on the ground that the accused person has compensated or reimbursed the complainant, or on the ground that a complainant or victim requests a discontinuance of the prosecution. Prosecutors should exercise special care when approached by a victim who is in a close relationship with the accused person, for example, a victim of domestic violence or parents in a “child abuse” case. - 155 - No prosecutor may withdraw any charges without the prior authorisation of the National Director or the DPP concerned, where the prosecution was on instruction of either the National Director or DPP. The decision to withdraw a charge is at the discretion of the State (prosecutor). In S v Mashaba (unreported review decision by the South Gauteng Division of the High Court, review case number 27/2020) it was confirmed in paragraph 15 that the CPA does not make provision for the court to order the State to withdraw a case. Section 6 (b) – Stopping of prosecution A DPP or any person conducting a prosecution at the instance of the State may at any time after an accused has pleaded to a charge but before conviction, stop prosecution in respect of a charge. If the prosecution is stopped, the court must acquit the accused in respect of that charge. The stopping of a prosecution in terms of section 6(b) of the Criminal Procedure Act, 1977, effectively means that the prosecuting authority is abandoning the case. The accused person will be entitled to an acquittal and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution without a DPP’s authorisation. As a rule, criminal proceedings should only be stopped when it becomes clear during the course of the trial that it would be impossible to obtain a conviction on any of the charges or where the continuation thereof has become undesirable due to exceptional circumstances. Section 7 – Private Prosecution on certificate nolle prosequi (1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence- (a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; (b) a husband, if the said offence was committed in respect of his wife; (c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or (d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, may, subject to the provisions of section 9 and section 59 (2) of the Child Justice Act, 2008, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence. - 156 - (2) (a) No private prosecutor under this section shall obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the officer authorized by law to issue such process a certificate signed by the attorney-general that he has seen the statements or affidavits on which the charge is based and that he declines to prosecute at the instance of the State. (b) The attorney-general shall, in any case in which he declines to prosecute, at the request of the person intending to prosecute, grant the certificate referred to in paragraph (a). (c) A certificate issued under this subsection shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within three months of the date of the certificate. Section 8 - Private prosecution under statutory right (1) Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence. (2) A body which or a person who intends exercising a right of prosecution under subsection (1), shall exercise such right only after consultation with the attorney- general concerned and after the attorney-general has withdrawn his right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which such body or person may by law exercise such right of prosecution. (3) An attorney-general may, under subsection (2), withdraw his right of prosecution on such conditions as he may deem fit, including a condition that the appointment by such body or person of a prosecutor to conduct the prosecution in question shall be subject to the approval of the attorney-general, and that the attorney-general may at any time exercise with reference to any such prosecution any power which he might have exercised if he had not withdrawn his right of prosecution. Section 9 - Security by private prosecutor (1) No private prosecutor referred to in section 7 shall take out or issue any process commencing the private prosecution unless he deposits with the magistrate's court in whose area of jurisdiction the offence was committed- (a) the amount the Minister may from time to time determine by notice in the Gazette as security that he will prosecute the charge against the accused to a conclusion without undue delay; and (b) the amount such court may determine as security for the costs which may be incurred in respect of the accused's defence to the charge. (2) The accused may, when he is called upon to plead to the charge, apply to the court hearing the charge to review the amount determined under subsection (1) (b), whereupon the court may, before the accused pleads- (a) require the private prosecutor to deposit such additional amount as the court may determine with the magistrate's court in which the said amount was deposited; or (b) direct that the private prosecutor enter into a recognizance, with or without sureties, in such additional amount as the court may determine. - 157 - (3) Where a private prosecutor fails to prosecute a charge against an accused to a conclusion without undue delay or where a charge is dismissed under section 11, the amount referred to in subsection (1) (a) shall be forfeited to the State. R2 500 - GN R62 in GG 36111 of 30 January 2013 Section 10 - Private prosecution in name of private prosecutor (1) A private prosecution shall be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor. (2) The indictment, charge-sheet or summons, as the case may be, shall describe the private prosecutor with certainty and precision and shall, except in the case of a body referred to in section 8, be signed by such prosecutor or his legal representative. (3) Two or more persons shall not prosecute in the same charge except where two or more persons have been injured by the same offence. Section 11 - Failure of private prosecutor to appear (1) If the private prosecutor does not appear on the day set down for the appearance of the accused in the magistrate's court or for the trial of the accused, the charge against the accused shall be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his control, in which event the court may adjourn the case to a later date. (2) Where the charge is so dismissed, the accused shall forthwith be discharged from custody and may not in respect of that charge be prosecuted privately again but the attorney-general or a public prosecutor with the consent of the attorney-general may at the instance of the State prosecute the accused in respect of that charge. Section 12 - Mode of conducting private prosecution (1) A private prosecution shall, subject to the provisions of this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State: Provided that the person in respect of whom the private prosecution is instituted shall be brought before the court only by way of summons in the case of a lower court, or an indictment in the case of a superior court, except where he is under arrest in respect of an offence with regard to which a right of private prosecution is vested in any body or person under section 8. (2) Where the prosecution is instituted under section 7 (1) and the accused pleads guilty to the charge, the prosecution shall be continued at the instance of the State. Section 13 - Attorney-general may intervene in private prosecution An attorney-general or a local public prosecutor acting on the instructions of the attorney-general, may in respect of any private prosecution apply by motion to the court before which the private prosecution is pending to stop all - 158 - further proceedings in the case in order that a prosecution for the offence in question may be instituted or, as the case may be, continued at the instance of the State, and the court shall make such an order. Section 14 - Costs in respect of process A private prosecutor, other than a prosecutor contemplated in section 8, shall in respect of any process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar of the court in question, the fees prescribed under the rules of court for the service or execution of such process. Section 15 - Costs of private prosecution (1) The costs and expenses of a private prosecutor shall, subject to the provisions of subsection (2), be paid by the private prosecutor. (2) The court may order a person convicted upon a private prosecution to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence: Provided that the provisions of this subsection shall not apply with reference to any prosecution instituted and conducted under section 8: Provided further that where a private prosecution is instituted after the grant of a certificate by an attorney-general that he declines to prosecute and the accused is convicted, the court may order the costs and expenses of the private prosecution, including the costs of an appeal arising from such prosecution, to be paid by the State. Section 16 - Costs of accused in private prosecution (1) Where in a private prosecution, other than a prosecution contemplated in section 8, the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding in favour of the accused on appeal, may order the private prosecutor to pay to such accused the whole or any part of the costs and expenses incurred in connection with the prosecution or, as the case may be, the appeal. (2) Where the court is of the opinion that a private prosecution was unfounded and vexatious, it shall award to the accused at his request such costs and expenses incurred in connection with the prosecution, as it may deem fit. Section 17 - Taxation of costs (1) The provisions of section 300 (3) shall apply with reference to any order or award made under section 15 or 16 in connection with costs and expenses. (2) Costs awarded under section 15 or 16 shall be taxed according to the scale, in civil cases, of the court which makes the award or, if the award is made by a regional court, according to the scale, in civil cases, of a magistrate's court, or, where there is more than one such scale, according to the scale determined by the court making the award. - 159 - Section 18 – Prescription of right to institute prosecution The right to institute a prosecution for any offence, shall lapse after 20 years from the time the offence was committed. The CPA however provides that there is no prescription for certain offences and include: 1. Murder 2. Treason committed when the Republic is in a state of war 3. Robbery, if aggravating circumstances were present 4. Kidnapping 5. Child-stealing 6. Common law offence of bribery 7. Offences referred to in section of the Corruption Act 92 of 1994 8. Offences referred to in parts 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 9. Any sexual offence in terms of the common law or statute 10. Genocide, crimes against humanity and war crimes, as contemplated in section 4 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 11. Any contravention of section 4, 5 or 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2003 12. Torture, as contemplated in section 4(1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013 Section 19 - Saving as to certain powers conferred by other laws The provisions of this Chapter shall not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. Section 20 - State may seize certain articles The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)- (a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere; (b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or (c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence. - 160 - Literally anything may be seized in terms of this section provided that it qualifies to be included in one of the three groups provided for in this section. Whether the belief or suspicion was reasonable is an objective question and will be answered objectively on all the facts before the court. Section - 21 Article to be seized under search warrant (1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued- (a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings. (2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises. (3) (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night. (b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority. (4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant. In Minister of Safety and Security v Van der Merwe and others 2011 (2) SACR 301 (CC) the Constitutional Court gave the following summary: A valid warrant is one that, in a reasonable intelligible manner: a. states the statutory provision in terms of which it is used; b. identifies the searcher; c. clearly mentions the authority it confers upon the searcher; d. describes the person, container or premises to be searched; e. describes the article to be searched for and seized, with particularity; and f. specifies the offence which triggered the criminal investigation and names the suspected offender. - 161 - In the case of a statutory offence, it is important that the warrant should pertinently refer to the specific statute and the section or subsection thereof in order to enable the person in charge of the premises to be searched and also the police official authorised in terms of the search warrant to know precisely that for which the search has been authorised. Only police officials may be authorised to search. The police may however require the assistance of experts in some cases. In these cases, there is a greater need to “carve out and define the role to be played by such outside persons, both in seeking the authorisation for their presence as well as their role in the actual execution of the warrant.” – see Keating and others v Senior Magistrate and others 2019 (1) SACR 396 (GP) where private individuals were authorised to act purely in an advisory capacity. In Cine Films (Pty) Ltd v Commissioner of Police 1972 (2) SA 254 (A) it was held that it is not required that each and every article to seized must be described in detail, and types or classes of articles can also be identified, as long as reasonably clear descriptions are given for example where the warrant indicates computers, hard drives, discs and such materials. In Vorster Interior Products CC v Minister of Police and others (unreported, WCC case no 3580/2021, 31 August 2021) the court found that the reference to types of articles did not invalidate the search warrant because the warrant limited the search to specified illegal activities. It was further stated that the warrant is not required to specify precisely what information is sought to be seized when electronic devices are specified in the warrant since it might not be known in advance what information would be found so as to isolate information linked to the investigation from other confidential matters. The evidence yielded by an irregular search and seizure is not automatically inadmissible. Section 35(5) of the Constitution states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. The admissibility of evidence unconstitutionally obtained must, in general, be determined during a trial within a trial. In considering fairness of the trial, prejudice to the accused becomes relevant. If it becomes apparent that the accused will be prejudiced if the evidence is admitted, the degree and nature of that prejudice must still be ascertained in order to determine whether admission of that - 162 - evidence will render the trial unfair. [Nombevu 1996 (2) SACR 396 (E); Soci 1998 (2) SACR 275 (E)] Fairness is not a “one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment”. [Shaik 2008 (1) SACR 1 (CC) par 43] It must be fair to both the accused and the public as represented by the prosecution and not only be aimed at considerations of fairness or be to the advantage of the accused. With regard to the administration of justice, the presiding officer has to determine whether the reasonable person, impartial, unbiased and fully conversant with all the facts and circumstances of the particular case, is of the opinion that admission of the evidence in question will be detrimental to the administration of justice. While public opinion has some relevance, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. [Makwanyane 1995 (2) SACR 1 (CC)] If the court finds that admitting the evidence will render the trial unfair OR that it will be detrimental to administration of justice, the evidence must be excluded. Section 22 – Search and seizure without a search warrant A police official may without a search warrant search any person or container or premises for the purpose of seizing any article 1. which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, 2. which may afford evidence of the commission or suspected commission of an offence, 3. which is intended to be used in or is on reasonable grounds believed to be intended to be used in the commission of an offence. (as per section 20 of the CPA) IF (a) the person concerned consents to the search or the person who may consent to the search of the container or premises consents to the search and seizure OR (b) the police official on reasonable grounds believes that (i) a search warrant will be issued to him if he applies for such warrant AND (ii) the delay in obtaining the warrant would defeat the object of the search. - 163 - Reference is made in this section (and others such as sections 24, 25 26 and 40. Comments made here about what constitutes a reasonable suspicion are therefore also applicable to such other sections. In Minister of Safety and Security v Magagula (2017) ZASCA 103 (unreported SCA case no 991/2016, 6 September 2017 the court accepted that a suspicion is a state of conjecture or surmise where proof is lacking. “I suspect but I cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. A suspicion inherently involves an absence of certainty or adequate proof. A police officer is not expected to satisfy himself to the same extent as a court and a suspicion can be reasonable despite there being insufficient evidence for a prima facie case. The standard of a reasonable suspicion is, said the Supreme Court of Appeal in Biyela v Minister of Police (2022) ZASCA 36 (unreported, SCA case no 1017/2020, 1 April 2022, very low. ”It must be more than a hunch; it should not be an unparticularised suspicion but must be based on specific and articulable facts or information.” It must be based on credible and trustworthy information and is determined objectively, but the suspicion need not be based on information that would subsequently be admissible in a court of law. In Buthelezi v Minister of Police 2020 (2) SACR 21 (GJ) the court laid down the requirements for consent. 1. The consent must be of a particular quality. The person whose consent is required should be informed of the purpose of the search. A mere request to search is insufficient. It must be established that the person whose consent is required to search a container or premises has the capacity to consent to the search. 2. The consent must be freely given. In Maroko v Minister of Police and another (unreported, GJ case no 21697/2019, 2 November 2021) the court had difficulty in accepting that meaningful consent can be given in the coercive environment created by a police operation, the express purpose of which is to stop and search those whose culpability can (as one of the police officers described it to the court) be read “in their faces”. 3. The action taken has to be within the bounds of the consent given. - 164 - Whether reasonable grounds were present is an objective question answered on all the facts before the court. The state has to prove that at the time of the action (LSD Ltd and Others v Vachell and Others 1918 WLD 127) the police officer objectively had reasonable grounds for the belief, assessed on all the available facts (Ndabeni v Minister of Law and Order & Another 1984 (3) SA 500 (D)). The official will have to show that reasonable grounds existed at the time he acted without a warrant and that it was not just a fishing expedition. Where information is received by the officer it must contain sufficient detail to ensure that it is not based on gossip, but reliable. Factors that may contribute to the reliability of the information include that the information was received from a person who has in the past supplied reliable information, the information was received from more than one source, observation by the police and knowledge by the officer that the area is a crime hotspot. Section 23 – Search of arrested person and the seizure of article This section empowers a peace officer that arrested a suspect to search the arrested person and seize any article referred to in section 20 that is in possession or under the control of the arrested person. If the arresting person is not a peace officer, he may not search the arrested person, but still seize an article referred to in section 20 that is in his possession or under his control. If the arresting person is not a police official, the seized article must be delivered to a police official. Any arresting person may also take for safe keeping, any object found on the arrested person which may be used to cause bodily harm to himself or others. Section 24 – Search of premises Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he must take possession thereof and deliver it to a police official. Section 25 - Power of police to enter premises in connection with State security or any offence - 165 - Section 25 enables a magistrate or justice, where it appears from information on oath that there are reasonable grounds to believe that the internal security of the Republic is likely to be endangered by or as a result of a meeting which is being held or to be held in or upon premises within his jurisdiction area, to issue a warrant authorising a police official to enter the premises at a reasonable time with certain objects in mind. The same applies where it appears from information on oath that there are reasonable grounds to believe that an offence has been or is being or is likely to be committed or that preparations for such commission are being or are likely to be made on premises within his jurisdiction area. The police official may enter the premises for the purpose of carrying out such investigations or taking such steps as he may consider necessary for the preservation of the internal security or for the maintenance of law and order or the prevention of an offence. What is necessary will depend on the subjective decision of the police official and the objective standards will thus not apply. The police official may also enter the premises with the purpose of searching the premises or any person thereupon for an article referred to in section 20 which he reasonably suspects to be upon a person or on the premises. Here the test will be an objective one. The warrant in terms of section 25 may be issued on any day and will remain in force until it is executed or cancelled by the person who issued it or someone with like authority if he is not available. Where the delay in obtaining a warrant under this section would defeat the object thereof and the police official believes on reasonable grounds that a warrant would have been issued to him if he applied for one, he may also take the steps authorised under this section without such warrant. The test here will be objective. Section 26 – Entering of premises for purposes of obtaining evidence Provision is made for the entering of premises for the purposes of obtaining evidence in a criminal matter. The police official can enter a premises without a warrant to obtain evidence provided he reasonably suspects that a person who may furnish information with reference to an offence is on the premises. He may interrogate the person and obtain a statement from him. The official may not enter a private dwelling without the consent of the occupier thereof. The right to interrogate the person is clear and it is not necessary to obtain his consent before questions are put, although the person will clearly enjoy the right to remain silent. - 166 - Section 27 – Resistance against entry and search Reasonable violence may be applied or used by the official who is entitled to search a person or who may enter a premises under section 26 to overcome any resistance against such search or entry. He may break a door or window of such premises, provided that the official must first audibly demand admission to the premises and notify the purpose for which he seeks to enter the premises. This is also applicable where no warrant has been issued where the delay in obtaining a warrant would defeat the object thereof and the police official believes on reasonable grounds that a warrant would have been issued to him if he applied for one. If the official is on reasonable grounds of the opinion that an article which is the subject of the search may be destroyed or disposed of if he audibly demands admission and notifies the person on the premises of the purpose for which he seeks entry, he is not required to do so. Section28 - Wrongful search an offence, and award of damages (1) A police official- (a) who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25 (1); or (b) who, without being authorized thereto under this Chapter- (i) searches any person or container or premises or seizes or detains any article; or (ii) performs any act contemplated in subparagraph (i), (ii) or (iii) of section 25 (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R600 or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2). (2) Where any person falsely gives information on oath under section 21 (1) or 25 (1) and a search warrant or, as the case may be, a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 shall mutatis mutandis apply with reference to such award. 29 - Search to be conducted in decent and orderly manner A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official. - 167 - Section 30 - Disposal by police official of article after seizure This section makes provision for articles seized under section 20 to be dealt with in specific way. Perishable goods may be disposed of in a manner as the circumstances may require. Stolen property or property suspected to be stolen may be delivered to the person from whom it was stolen if the person it was seized from consents thereto. Where consent to return the goods is refused or it is uncertain from whom the article was stolen, the article must be given an identification mark and retain it in police custody. In practice this means that the police book it into the SAP 13. Section 31 - Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings (1) (a) If no criminal proceedings are instituted in connection with any article referred to in section 30 (c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it. (b) If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State. Section 32 - Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid (1) If criminal proceedings are instituted in connection with any article referred to in section 30 (c) and the accused admits his guilt in accordance with the provisions of section 57 (pays an admission of guilt fine), the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it. (2) If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State. Section 33 - Article to be transferred to court for purposes of trial The investigating officer must deliver a seized article to the clerk of the court where it is required as evidence or for a court order such as forfeiture. In cases where detention of the article by the clerk of the court is impracticable or undesirable, the investigating officer may be required to retain custody of the article. - 168 - Section 34 - Disposal of article after commencement of criminal proceedings At the conclusion of the criminal proceedings, the court must make an order disposing of articles which were not forfeited or disposed of under section 35. The following orders may be given: (a) be returned to the person from whom it was seized, if such person may lawfully possess such article; or (b) if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or (c) if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State. Section 35 - Forfeiture of article to State A court which convicts an accused of any offence may, without notice to any person, declare- (a) any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or (b) if the conviction is in respect of an offence referred to in Part 1 of Schedule 2, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property, and which was seized under the provisions of this Act. Section 36 - Disposal of article concerned in an offence committed outside Republic Where an article is seized in connection with which- (a) an offence was committed or is on reasonable grounds suspected to have been committed in a country outside the Republic; (b) there are reasonable grounds for believing that it will afford evidence as to the commission in a country outside the Republic of any offence or that it was used for the purpose of or in connection with such commission of any offence, the magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that such offence is punishable in such country by death or by imprisonment for a period of twelve months or more or by a fine of five hundred rand or more, order such article to be delivered to a member of a police force established in such country who may thereupon remove it from the Republic. (2) Whenever the article so removed from the Republic is returned to the magistrate, or whenever the magistrate refuses to order that the article be delivered as aforesaid, the article shall be returned to the person from whose possession it was taken, unless the magistrate is authorized or required by law to dispose of it otherwise. - 169 - ASCERTAINMENT OF BODILY FEATURES OF PERSONS (ss 36A-37) The meanings and definitions in section 36A(1) apply only for purposes of the interpretation of Chapter 3 of the Act that deals with the ascertainment of bodily features of persons, whereas all other meanings and definitions as provided in section 1 of the Act must be applied to the whole of the Act. It is important to distinguish between bodily sample, buccal sample and intimate sample because the nature of the sample to be taken determines the procedure to be followed and the requirements that must be met. An intimate sample, for example, may only be taken by a registered medical practitioner or registered nurse as per section 36D(7)(d)(i). 36A - Interpretation of Chapter 3 (1) For the purposes of this Chapter, unless the context indicates otherwise- (a) 'appropriate person' means any adult member of a child's family, or a care-giver of the child, which includes any person other than a parent or guardian who factually cares for a child, including- (i) a foster parent; (ii) a person who cares for a child with the implied or express consent of a parent or guardian of the child; (iii) a person who cares for a child whilst the child is in temporary safe care; (iv) the person at the head of a child and youth care centre where a child has been placed; (v) the person at the head of a shelter; (vi) a child and youth care worker, who cares for a child who is without appropriate family care in the community; and (vii) a child at the head of a child-headed household, if such a child is 16 years or older; (aA) 'authorised officer' means the police officer commanding the Division responsible for forensic services within the South African Police Service, or his or her delegate; (b) 'authorised person' means- (i) with reference to photographic images, fingerprints or body-prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties; and (ii) with reference to buccal samples, any police official or member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample; (c) 'body-prints' means prints other than fingerprints, taken from a person and which are related to a crime scene, but excludes prints of the genitalia, buttocks or breasts of a person; (cA) 'bodily sample' means intimate or buccal samples taken from a person; (cB) 'buccal sample' means a sample of cellular material taken from the inside of a person's mouth; - 170 - (d) 'child' means a person under the age of 18 years; (e) 'Child Justice Act' means the Child Justice Act, 2008 (Act 75 of 2008); (f) 'comparative search' means the comparing by the authorised officer of- (i) fingerprints, body-prints or photographic images, taken under any power conferred by this Chapter, against any database referred to in Chapter 5A of the South African Police Service Act; and (ii) forensic DNA profiles derived from bodily samples, taken under any power conferred by this Chapter, against forensic DNA profiles contained in the different indices of the NFDD referred to in Chapter 5B of the South African Police Service Act; (fA) 'crime scene sample' means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person; (fB) 'DNA' means deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique; (fC) 'forensic DNA analysis' means the analysis of sections of the DNA of a bodily sample or crime scene sample to determine the forensic DNA profile: Provided that this does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person; (fD) 'forensic DNA profile' means the results obtained from forensic DNA analysis of bodily samples taken from a person or samples taken from a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided this does not contain any information on the health or medical condition or mental characteristic of a person or the predisposition or physical information of the person other than the sex of that person; (fE) 'Independent Police Investigative Directorate Act' means the Independent Police Investigative Directorate Act, 2011 (Act 1 of 2011); (fF) 'intimate sample' means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample; (fG) 'National Health Act' means the National Health Act, 2003 (Act 61 of 2003); (fH) 'NFDD' means the National Forensic DNA Database of South Africa, established in terms of section 15G of the South African Police Service Act; (g) 'South African Police Service Act' means the South African Police Service Act, 1995 (Act 68 of 1995). (2) Any police official who, in terms of this Act or any other law takes the fingerprints, a body-print or buccal sample or ascertains any bodily feature of a child must- (a) have due regard to the personal rights relating to privacy, dignity and bodily integrity of the child; (b) do so in a private area, not in view of the public; (c) ensure the presence of a parent or guardian of the child, a social worker or an appropriate person; and (d) treat and address the child in a manner that takes into account his or her gender and age. (3) Buccal samples must be taken by an authorised person who is of the same gender as the person from whom such sample is required with strict regard to decency and order. (4) Notwithstanding any other law, an authorised person may take a buccal sample or cause the taking of any other bodily sample with the consent of the person whose sample is required or if authorised under- (a) section 36D; or - 171 - (b) section 36E. (5) Any authorised person who, in terms of this Chapter or in terms of any other law takes a buccal sample from any person, must do so- (a) in accordance with the requirements of any regulation made by the Minister of Police; and (b) in a designated area deemed suitable for such purposes by the Departmental Heads: Police, Justice and Constitutional Development or Correctional Services in their area of responsibility. Section 36B – Powers in respect of accused and convicted persons A police official MUST take the fingerprints or MUST cause such fingerprints to be taken of all persons: 1. arrested for an offence referred to in Schedule 1 2. a person who has been released on bail if the fingerprints were not taken upon arrest 3. a person who has been summoned to court for an offence referred to in Schedule 1 4. a convicted person who has been sentenced to imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest. This includes any person serving a sentence of imprisonment without the option of fine or has been released on parole in respect of such a sentence irrespective of the fact that such a person was convicted prior to the commencement of this section. 5. a person convicted of any offence which the Minister has declared to be an offence for the purposes of this section. A police officer MAY take fingerprints or MAY cause such fingerprints to be taken: 1. Upon the arrest of any charge 2. When admission of guilt has been paid for any offence that the Minister has declared to be an offence applicable to this section. The fingerprints must be stored on the fingerprint database of the South African Police Service. The retaking of fingerprints is allowed if 1. The previous fingerprints do not constitute a complete set 2. The previous fingerprints are not of sufficient quality to allow analysis, comparison or matching 3. The previous fingerprints cannot be found or not stored on the database. - 172 - The fingerprints may be the subject of a comparative search. This means that the fingerprints are compared against the fingerprints on the database. The fingerprints MUST upon conviction of an adult be retained on the database and may be used to establish previous convictions. The fingerprints of a child MUST be retained on the database, but the retention thereof is subject to the expungement of records of certain convictions and diversion orders. The fingerprints must as a general rule be destroyed if the prosecution declines to prosecute or a person has been acquitted. Fingerprints that are retained may only be used for the detection or investigation of crime, the identification of missing persons or human remains or the conducting of a prosecution. Section 36C – Fingerprints and body-prints for investigation purposes Any police official may without a warrant take fingerprints or body-prints if: 1. there are reasonable grounds to suspect that a person has committed an offence referred to in schedule 1 2. There are reasonable grounds to believe that the prints would be of value by excluding or including any person as a possible perpetrator. The fingerprints may be used for a comparative search and the retention of the fingerprints are basically the section 36C discussed above. Section 36D – Powers in respect of buccal samples, bodily samples and crime scene samples An authorized person MUST take a buccal sample or cause the taking of any other bodily sample by a registered medical practitioner or nurse of any person: 1. arrested for an offence referred to in schedule 8 2. released on bail for an offence referred to in schedule 8 if it was not done upon arrest 3. who has been summoned to court for a schedule 8 offence 4. whose name appears in the National Register for Sex Offenders 5. charged or convicted for any offence that the Minister declared to be an offence for the purposes of this section. An authorised person MAY take a buccal sample or cause the taking of any other bodily sample by a registered medical practitioner or nurse of any person: 1. upon the arrest for any offence 2. released on bail and such sample was not taken upon arrest 3. who has been summoned to court on any offence 4. whose name appears in the National Register for Sex Offenders - 173 -  5. charged or convicted for any offence that the Minister declared to be an offence for the purposes of this section. A person who is required to submit a buccal sample and who requests to take it himself, must do so under the supervision of an authorised person. This procedure is confined to buccal samples. Intimate samples may only be taken by a registered medical practitioner or nurse. A buccal sample or bodily sample may be retaken if the first sample was insufficient for DNA analysis. The sample may be used for a comparative search. A DNA profile derived from a sample may be used: 1. as an investigative tool 2. to identify persons involved in an offence irrespective of whether the crime was committed before or after the commencement of this section 3. to prove the innocence or guilt of a person 4. to exonerate a convicted person 5. to assist with the identification of missing persons or human remains. Section 36 E – samples for investigation purposes. (1) Subject to subsection (2) and section 36A(5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such sample and who requests to do so himself or herself if there are reasonable grounds to— (a) suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 8; and (b) believe that the buccal sample or the results of the forensic DNA analysis thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence. (2) If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that— (a) any person from whom a buccal sample is required has committed an offence listed in Schedule 8; and (b) the sample or the results of an examination thereof, will be of value in the investigation by excluding or including that person as a possible perpetrator of the offence. (3) The provisions of section 36D(4), (5)(a), (6) and (7) apply with the necessary changes, to a sample or forensic DNA profile derived therefrom as contemplated in subsection (1). - 174 - This section is wide enough to include the mass screening of a class of persons who are suspected of an offence where it is believed to be of value to include or exclude anybody who agrees to be sampled. This procedure is confined to the taking of buccal samples. If a person does not consent to the taking of the sample a warrant may be issued to obtain the samples. Section 37 - Powers in respect of body-prints and bodily appearance of accused and convicted persons (1) Any police official may— (a) take the body-prints or may cause any such prints to be taken— (i) of any person arrested upon any charge; (ii) of any such person released on bail; (iii) of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of section 40(1); (iv) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; (v) of any person convicted by a court; or (vi) of any person deemed under section 57(6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph; (b) make a person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine; (c) take such steps as he or she may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that a police official may not— (i) take a blood sample of any person; or (ii) examine the body of a person who is of a different gender to the police official; (d) take a photographic image or may cause a photographic image to be taken of a person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1). (2) (a) Any medical officer of any prison or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) of subsection (1) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance. (b) If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken. (3) Any court before which criminal proceedings are pending may— - 175 -  (a) in any case in which a police official is not empowered under subsection (1) or section 36B(1) to take fingerprints or body-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance; (b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings. (4) Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate, may order that the fingerprints, body-prints or a photographic image of the person concerned be taken. (5) Any fingerprints, body-prints or photographic images taken under any power conferred by this section, may be the subject of a comparative search. (6) (a) Subject to subsection (7), the body-prints or photographic images, taken under any power conferred by this section, and the record of steps taken under this section— (i) must upon the conviction of an adult person be retained on a database provided for in section 5A of the South African Police Service Act; (ii) must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and (iii) in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceeding with reference to such body-prints or photographic images was instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified. (b) Body-prints or photographic images which may be retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of a missing person, the identification of unidentified human remains or the conducting of a prosecution. (c) The body-prints or photographic images referred to in paragraph (a)(i) and (ii), must be stored on the database established by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act. (7) Subsection (6) does not prohibit the use of any body-prints or photographic image taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence. Any member of the SAPS may instruct that a person who is in custody on any charge: or who has been released on bail or warning in terms of Section 72 of the CPA be made available for an identification parade in such circumstances, position and clothing as the police official should decide. Evidence of the process which was followed during the holding of the parade is given by police witnesses. Although they are bound by certain rules and instructions, the only - 176 - requirement for the admissibility of such evidence is its relevance. The prescribed safety precautions for holding an identification parade have a profound effect on the evidential value of the evidence about the parade. Legal representatives will usually vigorously attack this evidence as it is very damaging. To eliminate possible irregularities at a parade, certain strict rules have been laid down by the police hierarchy. The court in Bailey 2007 (2) SACR 1 (C) confirmed that these are rules of practice. These rules have no statutory force. Non-compliance with these rules will not ipso facto deprive an identification parade of all evidential weight. In other words, it does not affect the admissibility of the evidence but will have an impact on the reliability of the identification. Rule 1 The proceedings at the parade should at the time of the parade be recorded (preferably on Form SAP 329) by the police official in charge of the parade. Rule 2 The police official in charge of the parade should not be the investigating officer of the case in respect of which the parade is held. Rule 3 Suspects should be informed of the purpose of the parade and the allegations them. In addition to this the suspects should be given an opportunity to obtain a legal representative to be present at the parade. The police official in charge of the parade may not refuse such a request. Sibanda 1969 (2) SA 345 (T). The suspect’s legal representative must be given reasonable notice of the parade and must be given a reasonable opportunity to attend it. An identification parade is not invalid simply because the legal representative was not present. If an accused had requested a legal representative to be present and said was not present during the parade, the state will however have to convince the court that there were very good reasons why legal representation was not available to the suspect and that the suspect’s right to a fair trial has not in any way been violated by this fact. - 177 - Rule 4 A suspect should be informed that his refusal to take part in a parade can at a possible later trial be adduced as evidence against him and that the court might draw an adverse inference from such refusal. In S v Maphumulo 1996 (2) SACR 84 (N) it was held that the privilege against self-incrimination cannot be successfully invoked with regard to the ascertainment of bodily features because evidence of the identity of the suspect is real evidence. Rule 5 The parade should in principle consist of at least eight to ten persons, but a greater number is desirable. Rule 6 It is generally undesirable that there should be more than one suspect on the parade. If a second suspect is placed on the same parade, the two suspects should be more or less similar in general appearance and the persons on the parade should be increased to at least to sixteen. Photographs taken during the parade constitutes real evidence and will be helpful in this regard. Rule 7 If the same identifying witnesses are involved in two parades, then the suspect should not be the only person appearing in both; nor should a suspect be added to a parade already inspected by the identifying witnesses for purposes of a second parade. Rule 8 The suspect and persons in the parade should be more or less of the build, height, age and appearance and should be more or less similarly dressed. General appearance includes standard of dress and grooming. This rule is of crucial importance. In S v T 2005 (2) SACR - 178 - 318 (E) it was said that it must be ensured that that the suspect does not stand out like a sore thumb, which would obviously attract attention to him and increase the likelihood of him being identified whilst at the same time increases the likelihood of him being identified. Rule 9 It is desirable that at least one photograph should be taken of all the persons, including the suspect, at the parade, depicting them as they appeared in the line-up and standing next to each other. These photographs may assist with regard to rules 6 and 8. Rule 10 The police official in charge of the parade should inform the suspect that he may initially take up any position and change his position before any other identifying witness is called. Rule 11 A suspect should be asked whether he is satisfied with the parade and if he has any further requests. Rule 12 The police official in charge of the parade should comply with reasonable requests made by the accused especially with regard to a request to change clothing. Rule 13 Identifying witnesses should be kept separately, not be allowed to discuss the case while waiting to be called to the parade and should not be able to see the parade being formed. The witnesses should be under the supervision of a police official who is neither the one in charge of the parade nor the investigating officer. Rule 14 - 179 - Identifying witnesses should not see anybody, particularly the suspect, on the parade before they are brought to the parade. Rule 15 A police official, other than the investigating officer of the case, the person in charge of the parade and the official supervising witnesses who are waiting to be called to the parade, should escort the witnesses to and from the parade. After the parade the said official must escort the witnesses to a place where the witness can have no contact with witnesses who are still waiting to inspect the parade. The mentioned escorting official may not discuss the case with any of the witnesses. Rule 16 The supervising official (before the witness is called to the parade) and the escorting official (to and from the parade) should not know who the suspect is and the parade must be formed in their absence. Rule 17 The official in charge of the parade should inform each identifying witness that the person whom the witness saw may or may not be on the parade. The witness must also be informed that if he cannot make a positive identification, he should say so. Rule 18 Identification may be done by touching the shoulder of the suspect and is desirable that a photo be taken of the actual act of identification. - 180 - Section 38 – Methods of Securing Attendance of Accused in Court (1) Subject to section 4(2) of the Child Justice Act, 2008 (Act 75 of 2008), the methods of securing the attendance of an accused who is eighteen years or older in court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act. [Sub-s (1) substituted by s 4 of Act 42 of 2013.] (2) The methods of securing the attendance of an accused who is under the age of eighteen years at a preliminary inquiry or child justice court are those contemplated in section 17 of the Child Justice Act, 2008. In S v Swart (unreported, WLD case number 5/3221/1994, 10 March 1995) the accused was not brought before court in any of the manners mentioned in section 38, but appeared by agreement between the prosecution, the accused and his legal representative. The question arose whether an accused`s voluntary appearance has the effect of vesting that court with full jurisdiction over the person or not. The court held that section 38 is neither peremptory nor does it reflect an exhaustive list of methods of obtaining attendance at court. The provisions of section 38 should be purely directory, leaving it to the discretion of the prosecuting authorities as to the manner in which the attendance of an accused person is to be procured. Where an accused voluntarily submits himself to the jurisdiction of the court, the court clearly has jurisdiction over his person. Section 39 - Manner and effect of arrest (1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body. (2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant. (3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody. An arrest (with or without a warrant) is effected, unless the person submits to custody, by the actual touching of the body of the person to be arrested or by forcibly confining his body if the circumstances require it. The arrested person must at the time of the arrest or immediately after the arrest be informed of the cause of the arrest. If a person is arrested by virtue of a warrant a copy of the warrant must be made available to the arrested person - 181 - if he so demands. The effect of an arrest is that the arrested person is in lawful custody and is detained in custody until he is lawfully released from custody. Section 40 - Arrest by peace officer without warrant A peace officer may without warrant arrest any person- (a) who commits or attempts to commit any offence in his presence; (b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody; (c) who has escaped or who attempts to escape from lawful custody; (d) who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer; (e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing; (f) who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence; (g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce; (h) who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition; (i) who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance; (j) who wilfully obstructs him in the execution of his duty; (k) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic; (l) who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic; (m) who is reasonably suspected of being a deserter from the South African National Defence Force; (n) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act; (o) who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act; (p) who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons; (q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element. - 182 - Section 41 – Name and address of certain persons and powers of arrest by peace officer without warrant (1) A peace officer may call upon any person— (a) whom he has power to arrest; (b) who is reasonably suspected of having committed or of having attempted to commit an offence; (c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified. (2) Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. A person would normally not be obliged to make statements to the police or to supply information to the police. This includes the provision of information in respect of the name and address. However, section 41 empowers peace officers to demand the names and addresses of person falling into certain categories: 1. All persons who might be arrested by a peace officer in terms of section 40 2. Persons reasonably suspected of having committed or of having attempted to commit an offence 3. Persons who may be able to give evidence in regard to the commission or expected commission of an offence A person who fails to supply his full name and address or supplies a name and address that the peace officer reasonably suspects to be false, may be arrested. Failure to supply the required information in terms of this section is also an offence. Section 42 - Arrest by private person without warrant (1) Any private person may without warrant arrest any person— (a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1; (b) whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence; (c) whom he is by any law authorized to arrest without warrant in respect of any offence specified in that law; - 183 -  (d) whom he sees engaged in an affray. (2) Any private person who may without warrant arrest any person under subsection (1)(a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. (3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant arrest the person so found. A private person may arrest without a warrant any person in the following situations: 1. Who commits or attempts to commit an offence in his presence or whom he reasonably suspects of having committed a schedule 1 offence 2. The private person may voluntarily assist a private person or a peace officer who is having difficulty arresting somebody 3. When he may arrest a person without a warrant in terms of any law for an offence specified in that law 4. Any person he sees engaged in an affray Owners, lawful occupiers or persons in charge of property or somebody authorised thereto by the aforementioned mat arrest a person who commits an offence on the property or in respect of such property. This authority is not restricted to schedule 1 offences. Section 43 – Warrant of arrest may be issued by magistrate of judge (1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police— (a) which sets out the offence alleged to have been committed; (b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and (c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence. (2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50. (3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed. - 184 - A prosecutor or a commissioned police officer may apply for a warrant to be issued. The application must be in writing and contain the following information: 1. The offence which has allegedly been committed by the person for whose arrest the warrant is intended 2. One of the following – (i) that the offence was committed within the jurisdiction of the magistrate to whom the application is made OR (ii) that it is known or is on reasonable grounds suspected that the suspect is within the jurisdiction of the magistrate (It is preferable to apply for the warrant in the jurisdiction where the offence was committed, before the alternative is used.) 3. A statement that a reasonable suspicion exists that the person in respect of whom the warrant is applied for has committed the offence and that the suspicion is based upon information taken under oath. It is preferable that the name of the person to be arrested is mentioned in the application, but if this is not possible, as accurate a description as possible of that person, will suffice. Section 44 – Execution of warrants A warrant of arrest issued under any provision of this Act may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof. A peace officer must execute a warrant issued under any provision of the Criminal Procedure Act and must do so in accordance with the terms thereof. Section 45 – Arrest on telegraphic authority (1) A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority for any peace officer to arrest and detain that person. (2) The provisions of section 50 shall apply in respect of an arrest effected in accordance with subsection (1). A peace officer who is advised telegraphically or by means of a similar written or printed communication that a warrant has been issued, is authorized in terms of such communication to arrest the person named in it. If the warrant itself is transmitted and a - 185 - copy is executed, it has the same effect as the execution of the warrant itself in terms of section 330 of the CPA. Section 46 – Non-liability for wrongful arrest (1) Any person who is authorized to arrest another under a warrant of arrest or a communication under section 45 and who, in the reasonable belief that he is arresting such person, arrests another, shall be exempt from liability in respect of such wrongful arrest. (2) Any person who is called upon to assist in making an arrest as contemplated in subsection (1) or who is required to detain a person so arrested, and who reasonably believes that the said person is the one whose arrest has been authorized by the warrant of arrest or the communication, shall likewise be exempt from liability in respect of such assistance or detention. Section 46 protects an arresting person and the person or authority who is vicariously liable for his actions, who is reasonably mistaken in regard to the identity of the person named in the warrant. If the arresting person believes that the person whom he takes into custody is one who, according to the warrant, he must arrest, he would not be held liable for an unlawful arrest. In determining the question of whether the arresting person acted reasonably, the question is asked whether a reasonable and careful man who was entrusted with the execution of the warrant would have believed that the person he had taken into custody was the person identified in the warrant. Section 47 – Private persons to assist in arrest when called upon (1) Every male inhabitant of the Republic of an age not below sixteen and not exceeding sixty years shall, when called upon by any police official to do so, assist such police official— (a) in arresting any person; (b) in detaining any person so arrested. (2) Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. - 186 - Males between 16 and 60 years of age are obliged to assist with the arrest or detention of a person if so requested by a police officer. The duty to aid a police official is seen in a serious light and non-compliance therewith amounts to an offence. Section 48 – Breaking open premises for purpose of arrest Any person who may lawfully arrest another in respect of any offence, and who knows or reasonably suspects such other person to be on any premises, if he first audibly demands entry into such premises and gives notification of the purpose for which he seeks entry and fails to gain entry, may break open, enter and search such premises for the purpose of effecting the arrest. Section 49 – Use of force in effecting arrest (1) For the purposes of this section— (a) 'arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect; (b) 'suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and (c) 'deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm. (2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if— (a) the suspect poses a threat of serious violence to the arrestor or any other person; or (b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later. - 187 - Section 50 – Procedure after arrest (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. (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 terms 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 first 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 certificate of a medical practitioner, authorise that the arrested person be detained at a place specified 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 specified by the court and for such period as the court may deem necessary; or (iii) at a time when the arrested 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. (2) For purposes of this section— (a) 'a court day’ means a day on which the court in question normally sits as a court and 'ordinary court day’ has a corresponding meaning; and (b) 'ordinary court hours’ means the hours from 9:00 until 16:00 on a court day. (3) Subject to the provisions of subsection (6), nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court. (4) and (5)... (6) (a) At his or her first 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, - 188 - 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. (c) The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate’s court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court. (d) The lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not inconsistent with any provision of this Act, if— (i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application; (ii) the prosecutor informs the court that the matter has been or is going to be referred to an attorney-general for the issuing of a written confirmation referred to in section 60(11A); (iii)... (iv) it appears to the court that it is necessary to provide the State with a reasonable opportunity to— (aa) procure material evidence that may be lost if bail is granted; or (bb) perform the functions referred to in section 37; or (v) it appears to the court that it is necessary in the interests of justice to do so. The detained person must be brought before a lower court within 48 hours. This does not mean that the detainee must be brought before a court that has jurisdiction to do the trial. If a detainee is brought before a court that does not have trial jurisdiction that court may still deal with the aspect of bail. The court is empowered at the arrested person`s first appearance or even at a postponed date to make an order in order to determine which court has jurisdiction. The outer limit of 48 hours envisaged in section 51(1)(c) does not entitle a policeman to detain someone for that entire period without bringing him to court if it could be done earlier. Once it is reasonably possible to bring a detainee before court before the expiry of the 48 hours period, it must be done. What is possible or reasonably possible must be judged in the light of the prevailing circumstances in any particular case. Factors such as the availability of a magistrate, police manpower, transport problems and distances are to be taken into account, but convenience is not such a factor. - 189 - Where the 48-period expires outside ordinary court hours or on a day which is not an ordinary court day, the arrested person shall be brought before a lower court not later than the end of the first court day after the expiry of the 48 hours following upon his arrest. Section 50(d)(i) was intended to extend the 48-hour outer limit during which an arrested person could be detained where the 48-hour period expired outside court hours or on a day that was not an ordinary court day. The legislative purpose in extending the 48 hours, if it is interrupted by a weekend, is to overcome the difficulty of coordinating police, prosecutorial and court administration over weekends. Section 1(d)(ii) in practice usually deals with matters where an arrested person is hospitalized and unable to physically appear in court. Please note that provision is made for a certificate of a medical practitioner in these circumstances and a hospital note from a nurse will not suffice. Although section 6(a)(ii) states that an arrested person is not entitled to be brought to court outside ordinary court hours, it does not prohibit such a person from having the issue of bail considered outside of ordinary court hours in terms of section 59 (bail before first appearance of accused in lower court) and 59A (Director of Public Prosecutions may authorize release on bail) of the Act. The right to bail in terms of these sections is however limited to certain offences as discussed later when dealing with the respective sections. Section 6(d) does not mean that all bail applications may not be postponed for longer than 7 days. This section is generally limited to matters where further investigation is required at the request of the prosecution. Where the State seeks a postponement of a bail hearing as provided for in terms of section 50, the prosecutor is not relieved of the duty to put all relevant information before the court. Bail applications or the continuance may otherwise be postponed for longer than 7 days at the discretion of the court. Section 51 – Escaping and aiding escaping before incarceration (1) Any person who escapes or attempts to escape from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the Correctional Services Act, 1998 (Act 111 of 1998). - 190 - (2) Any person who rescues or attempts to rescue from custody any person after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, or who aids the person to escape or to attempt to escape from custody, or who harbours or conceals or assists in harbouring or concealing any person who escapes from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the said Correctional Services Act, 1998. [Sub-s (2) substituted by s 4 of Act 66 of 2008.] (3) Notwithstanding anything to the contrary in any law contained, a lower court shall have jurisdiction to try any offence under this section and to impose any penalty prescribed in respect thereof. This section deals with escaping, attempting to escape and aiding escaping after a person has been lawfully arrested, but before the arrested person was lodged in a correctional facility, police-cell or lock-up. Once the person has been lodged in any of the mentioned facilities, any escape, attempted escape and aiding an escape is dealt with under the Correc