It is neither a punishment in itself, nor an indication by itself of an effective criminal justice system. Arrest in itself limits the right to freedom and security of the person, the right to dignity, the rights to property and privacy (in cases where the police break open, enter and search premises for purposes of arrest and where a suspect’s possessions are confiscated during an arrest). The right to life and the right to freedom and security of the person – which includes the right to freedom from all forms of violence – are also limited in cases where force, including deadly force, is used to overcome resistance or prevent escape during arrest.
However, the power to arrest is indispensable to the fulfilment of the constitutional mandate of the police, which includes the prevention of crime and maintenance of public order. Nevertheless, a careful balance should be struck between the public interest in effective policing, and the rights of suspect, because arrest affects an arrested person’s enjoyment of several constitutional rights.
Recent incidents suggest that there is a growing tendency of unlawful arrests seemingly effected in the absence of strong evidence to sustain charges against arrested persons. Statistics provided by the Institute of Security Studies (ISS) show that during 2012/2013, the South African Police Service (SAPS) made 1 682 763 arrests while the National Prosecuting Authority (NPA) only finalised 323 390 cases during the same period. The ISS also found that between 2002/2003 and 2012/2013, arrests increased by 54%, while case finalisations dropped by 20%. Another staggering fact is that during this period, the number of arrests was over double the number of case finalisations in each year. The number of suspects who are released without charge – or whose charges are dropped – suggests that arrests are not always made with the intention of charging a suspect on the basis of strong evidence. The concern that arises is that the SAPS and other law enforcement agencies are not adhering to the law and principles relating to arrest.
In view of the limitation of rights that come with arrest, it is important that this power is used within the limits set out by the law. Section 13 of the Criminal Procedure Act states that arrest is one way of securing the attendance of an accused in court to stand trial. This is in line with section 35 of the Constitution which provides arrested and detained persons with the right, among others, to be brought before a court within 48 hours and the right, at the first court appearance, to be charged or to be informed of the reason for continued detention or to be released. Accordingly, arrest, with or without a warrant, may only be made if there is reasonable suspicion that the individual concerned has or is about to commit a crime and there must be strong evidence to support this. A suspicion will be reasonable if a reasonable person would have believed that there were sufficient grounds for suspecting that the suspect had committed an offence. Even where a reasonable suspicion is established, arrest must be justifiable under the Bill of Rights as was held in Gellman v Minister of Safety and Security. In principle, an arrest without a warrant is only allowed in exceptional circumstances and only when authorised by law.
Since the purpose of an arrest is to bring a suspect before a court, an arrest should only be made if other means such as summons would be inadequate and a warrant cannot be obtained in time. This is particularly important in view of the right not to be deprived of liberty without just cause. Apart from arrest, an accused can be brought before a court through other means such as summons, a written notice, and an indictment. Arrest drastically affects the enjoyment of constitutional rights; it should only be used as a last resort. In other words, arrest is only justifiable if other less restrictive means of bringing an offender before a court are deemed ineffective.
There are several problems with unwarranted arrests. They negatively affect the functioning of the criminal justice system, represent an unnecessary burden on police workload and distract police in their work by focussing on arrests. In 2012, 836 114 arrests (52% of the total number of arrests in that year) were for crimes less serious than shoplifting (such as loitering, urinating or drinking in public). According to the ISS, international research has established that arrest is not always a correct measure of effective policing and that arrests for petty crime do not necessarily deter individuals but may in fact increase the crime rate in the long run. This not only destroys the relationship between the community and the police but also undermines public confidence in the police who are regarded as using arrest to harass individuals.
An increase in arrests increases overcrowding in police cells and prisons, adding to the already high population of remand prisoners. This in turn exposes suspects to further human rights violations, such as health risks and violence in prison, such as rape and torture. In this regard, the Independent Police Investigative Directorate (IPID) reports that during 2013/2014, there were 19 cases of rape in police custody, 78 of torture, and 234 deaths in police custody (of which 158 died during arrest).
Moreover, wrongful arrests and detention also have financial implications because the police are at risk of civil damage claims. Many of these arrests are illegal as suspects are at times arrested, detained and then released without charge (for reasons such as lack of evidence or incomplete investigations), or released and told to attend trial – only for the charges to be dropped. For instance, in 2010, Perumal Pillay, a businessman from Port Shepstone,was wrongfully arrested and detained for over a year, only to be released without charge. He later died of tuberculosis, which he contracted while in prison. His family is now suing the Minister of Police for R30 million. Furthermore, most arrests are characterised by abuse of power and excessive use of force, as is evidenced by the amount of money spent on civil claims against the SAPS for wrongful arrests over the past few years. In 2011/2012 unlawful acts by police officials (including wrongful arrest, rape, attempted rape, grievous bodily harm, corruption and assault) cost the SAPS (and taxpayers) R209 million in civil claims. In 2012/2013, SAPS spent R204 million in civil claims. Incidentally, the Minister of Police has previously stated that a significant portion of the budget for civil claims is allocated to wrongful arrest.
The perception that arrest by itself is an indication of good policing is incorrect and must be discouraged (the 2007 ISS Victims of Crime Survey found that 37% of respondents stated that police were doing a “good job” because they arrest criminals). It seems that this perception is partly promoted by the media through the manner in which it reports on ongoing investigations – an arrest often being reported as the goal, rather than a means to an end. This puts pressure on the police to act quickly and often boldly to make an arrest at the expense of proper investigation, leading to charges being dropped before the case even goes to court. The SAPS also perpetuates this perception by promising quick arrests in cases of great public interest, like the Senzo Meyiwa murder. In the latter case, the SAPS detained 13 people for questioning; of whom 12 were released the next morning and one charged with murder and armed robbery – only for the charges to be dropped for lack of sufficient evidence.
In Ex Parte Minister of Safety and Security and Others: in re S v Walters, the Constitutional Court probably said it best when the Court held that arrest “is not an objective in itself” but “a means towards an end” in that it is “merely an optional” method of bringing an accused before a court. The objective is successful prosecution within the framework of our constitutional values and rights. It is about time that we shift the focus away from arrests, and rather focus on proper investigation and successful prosecution.
By Esther Gumboh, Intern: Centre for Constitutional Rights