An arrest involves the apprehension of a person who is being prosecuted, with the aim of bringing that person before the court. Apprehension is not a form of punishment. You must be treated with respect and dignity when being arrested.
The police officer must give you the reasons why you are being arrested, after which you will be placed in a detention cell at the police station. The police must inform about your rights, including your right to be released on bail.
Any person who is arrested has the right to remain silent and not to implicate himself or herself in a crime. It is not recommended that you make a statement to the SAPS on your own; consult an attorney in this regard. After you have been apprehended, a document must be handed to you explaining your rights. You are free to sign this document, but you are advised not to sign any other documents.
If you have any personal effects with you, they remain your property unless they have a bearing on the crime. Your possessions can be left with the police and you must sign for them or you can ask a person you trust to take your possessions, but the person must identify himself or herself and also sign with the police for them.
i) Following your arrest the SAPS has the power to do the following:
• Take your hand-, palm- and footprints;
• hold an identity parade (your must always insist upon having your attorney present);
• examine you to determine whether your body has any marks or other identifying features;
• take a photo of you;
• take you to a doctor in order to draw your blood.
There are laws stating what the police may do if they search or arrest somebody. There are also internal regulations prescribing the action of the police. Police members disregarding these laws and regulations will be disciplined.
The police may only use as much violence as is required to prevent somebody who is resisting arrest from escaping escape. The police may not torture you.
The police are authorised to search people, property and even buildings while bearing your right to privacy in mind. Searches make it possible for the police to ensure a safe and protected environment for all of us.
They may search without a warrant:
– at a road block;
– if they suspect that you have illegal firearms, drugs or liquor; and
– it is a matter of the greatest urgency and they have reason to suspect that getting a warrant will give you time to hide the evidence.
A woman may not be body-searched by a man; equally, a man may not be body-searched by a woman.
ii) Your rights on being arrested:
You will be detained in the police cell for 48 hours at most. The moment you are arrested, you have the right to:
– talk to an attorney – the police officer must allow you to call your attorney and to talk to him;
– remain silent, unless you have to give your name and address to the police;
– be examined by a doctor;
– wear your own clothes; and
– receive the prescribed ration of food.
While you are being detained, you have the right to:
– receive visits by family in accordance with the instructions of the charge office; and
– have friends and family bring you clothes and food to the detention cells. The clothes and food may be examined by the police officer.
The police must take you to court within 48 hours of your being arrested, unless it is a weekend or a public holiday, and in such a case they must take you to court before 16:00 on the first day the court sits again.
b) Drunken driving
In South Africa the alcohol limit at present is as follows:
– An alcohol content in the breath not exceeding 0,24 mg per 1000 ml or
– An alcohol content in the blood not exceeding 0,05 g per 100 ml.
– For professional drivers, e.g. taxi drivers, bus drivers and truck drivers, it is 0,02 g per 100 ml blood.
Any person who exceeds the above limits during a breathalyser or blood test for alcohol at a road block can be arrested on a charge of driving under the influence of liquor. You are not entitled to refuse to take the test. If you refuse to take the test, you are committing a crime and the same punishment can be meted out to you as to someone driving with a blood alcohol level exceeding the prescribed limit.
The police officer is legally obliged to take the arrested person to a registered medical practitioner if blood tests have to be taken. The police officer may exercise the necessary violence that will force the person to provide a blood sample.
A breathalyser test or blood test for alcohol must be taken and have an incriminating outcome before a lawful arrest can be made. In terms of a recent finding in the Court of Appeal the police cannot lawfully arrest a motorist in the absence of such a test result. An arrest may not be made if the officer’s suspicion is based only on “the mere fact that he smells a bit of alcohol”.
When prosecuting the crime of driving with the blood alcohol level exceeding the prescribed limit, it must be proven that the concentration of alcohol in any blood sample of any part of the body of the person concerned exceeded 0,05 g per 100 ml at any time within two hours after the alleged offence was committed.
On prosecuting the crime of driving with the alcohol level of the blood exceeding the prescribed limit, it must be proven that the concentration of alcohol in any breath sample of the person concerned exceeded 0,24 mg per 1 000 ml at any time within two hours after the alleged offence was committed.
i) What are my rights if I am arrested for drunken driving?
1. To be treated with respect and dignity;
2. to know who is the medical practitioner;
3. to know what to expect during the examination – the process must be discussed with you;
4. the right to access my own medical practitioner, if he or she is available. I must bear these expenses myself;
5. the right to be examined in a place that is designed and equipped for this purpose – not a police cell, charge office or poorly equipped spot.
6. The physical welfare of the person is given priority. No blood or breathalyser sampling procedure may result in delaying urgent medical treatment for a life-threatening condition.
7. Persons who are severely under the influence of liquor must be referred to the hospital for observation.
8. Persons who are being detained and who are to a lesser extent under the influence of liquor must be observed every 15 minutes by an experienced police officer until they are sober.
9. Persons have the right to access their usual routine medication.
10. Every person has the right to be referred for rehabilitation, should it be an obvious case of alcoholism. A recommendation in writing should be made in this for the magistrate’s information.
Assault consists of any unlawful and intentional action –
a) resulting in somebody else’s bodily integrity being directly or indirectly negatively affected; or
b) making somebody else believe that such an attack on his or her bodily integrity is imminent.
This means that assault can be committed in two ways, namely by exercising violence, or by threatening imminent personal violence. Violence can be exercised directly or indirectly.
The direct exercise of violence is how the common man regards violence. It is when X uses a part of his or her body to apply physical strength on a part of Y’s body and thereby makes contact with or touches a part of Y’s body.
Violence is exercised indirectly when the person uses an instrument, e.g. by hitting somebody using a stick, throwing stones, setting a vicious dog on someone, causing a train to derail in order to injure the passengers, or by making use of a third party.
Assault must be unlawful and intentional.
i) Assault with intent to cause grievous bodily harm
If assault is of such a nature that it causes or can cause serious injuries, the crime of “assault with intent to cause grievous bodily harm” is committed.
Assault with intent to cause grievous bodily harm is an independent crime and not simply a more severe form of assault. The requirements for assault with intent to cause grievous bodily harm are exactly the same as those for common assault, but in addition X must also have the particular intent of causing severe injuries. It is not necessary for severe bodily injuries to have been inflicted; merely the intent of inflicting them is sufficient.
Factors to be considered when deciding whether there was intent to cause grievous bodily harm include the nature of the weapon or instrument used and the way in which it was used, the part of the body aimed at and the nature of the injuries, if any.
ii) What must I do if I have been assaulted?
You have two choices when you have been assaulted.
You can apply for a protection order, or you can lay a charge, or both.
A protection order is a document warning somebody to stop a particular course of action, or else to run the risk of being arrested. This gives the abuser an opportunity to turn over a new leaf. A crime record will not be disclosed against him/her. The restraining order gives you the power to get a warrant to detain that you can keep and use against the offender if he/she ignores the provisions of the protection order.
Laying a charge means that the police will conduct an investigation and arrest the alleged offender if his/her actions are considered to be a crime.
You can apply for an interim protection order for immediate protection, while the police are concluding the investigation.
d) How do you lay a charge at a police station?
If it is an emergency, call 10111 so that you can be assisted by the police immediately. If it is not an emergency, you should lay a charge at your nearest police station as soon as possible. Make a statement about the events that occurred. The police officer helping you must give you a CAS number for the case. Keep this CAS number and also write down the name and rank of the police officer who helped you. A complainant has the right to know how the case is progressing. You can therefore call the police station at any time and enquire about the case.
The complainant must inform the police officer if his address or telephone number has changed, if he is going to be away for quite a while, if he has obtained new information, when he is being intimidated by the accused or members of his or her family, or if he was offered money to withdraw the case.
The police have to investigate the case and prepare the docket for the public prosecutor. The case is then brought before the court and the presiding officer must decide whether or not the accused is guilty. If the person is found guilty and is sentenced, there are various kinds of sentences ranging from a fine, community supervision and a suspended sentence/delayed detention to imprisonment.
The complainant has the right to be informed of the date of release or parole date of the accused. The complainant also has the right to make submissions to the parole board.
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