GUARDIAN ANGELS NEIGHBOURHOOD WATCH PATROL TRAINING #1 Legal Considerations This document is the joint property of the International Alliance of Guardian Angels ‘, Cape Town Chapter and the City of Cape Town. It is issued only to those members requiring it in the execution of their official duties. Any person finding this document is requested to hand it in at the nearest Metro Police or Law Enforcement office for transmission to: The Directorate Safety and Security, Community Liaison Officer, tel 083 568 6760.
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This document is the joint property of the International Alliance of Guardian Angels‘, Cape Town Chapter and the Cityof Cape Town. It is issued only to those members requiring it in the execution of their official duties. Any person
finding this document is requested to hand it in at the nearest Metro Police or Law Enforcement office for transmission
to: The Directorate Safety and Security, Community Liaison Officer, tel 083 568 6760.
Definitions Of Terms Used In This Module................................................................................... 5
Neighbourhood Watch Registration and Operation ..................................................................... 6The South African Constitution and the Bill Of Rights ............................................................... 7
May Private Persons Perform Arrests? ......................................................................................... 8
Must Private Persons Always Assist Police In An Arrest?........................................................... 8
May Private Persons Search Someone Whom They Have Arrested? ......................................... 9
What Are The Items That A Private Person May Search For?................................................. 10
May The Owner Or Manager Of Private Property Search Such Property? ........................... 11
Must A Search Be Conducted In Decent And Orderly Manner?.............................................. 11
How Shall An Arrest Be Affected? ............................................................................................... 11
Can You Break Open Property For The Purpose Of An Arrest? ............................................. 11
What Are The Requirements For An Attack To Be Seen As Such? ......................................... 17What Are The Requirements For An Action To Be Seen As Defensive?.................................. 18
Further Factors That The Court Will Consider ......................................................................... 19
Am I Privately Liable If I Perform An Unlawful Arrest? .......................................................... 20
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Introduction
In terms of crime the situation in Cape Town is dire. The world average for murder is 5.5 people
murdered per 100 000. South Africa has an average of 47 per 100 000 and Cape Town stands at 86
per 100 000. This is to put it mildly, unacceptable. Some 43 children are raped every day and a
rape occurs every 24 seconds! A woman is murdered in this country every 6 days by a close male
companion and we have one of the highest rates of foetal alcohol syndrome in the world. The cityis under siege from crime lords and gangsters with +- 30 gangs operating in the CBD alone. There
are more than 1400 citizens for every police officer which reflects poorly with, for example, New
York with 1 police officer for every 129 citizens. With the City Police standing (at time of writing)
on a strength of less than 800 members the situation goes from bad to worse. The streets of the city
are infested with petty criminals and prostitutes, spreading diseases as well as drugs and helping to
finance large numbers of illegal immigrants. Containers enter the city at a rate of 530 000 per year,
yet less than maybe 200 are ever searched in a year and then only superficially. Children are
inducted into gangs at a young age (sometimes as young as 12 yrs old) and the violence in our
society is used as the yardstick by which they measure their conduct. Coupled to this is one of the
highest levels of unemployment in the country and some 6000 homeless people living on ourstreets in appalling conditions – often with very young children. The South African criminal
justice system can with the best will in the world not be described as other than dysfunctional.
Since about 1990 crime has rocketed to levels never previously experienced in this country. It is
an embarrassing fact that neither the introduction of the new constitution with its bill of rights nor
the abolition of the death sentence has succeeded in checking the staggering escalation of crime
and securing adequate personal safety for the citizens of this country. This is borne out by the
following alarming crime statistics:
In general in 1995 6,561 crimes per hundred thousand of the population were committed. The
world average was 2,662 were hundred thousand. In 1996 it was estimated that of every 1,000
crimes committed in South Africa only 450 were reported, 230 solved, 100 prosecuted, 77 accused
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Neighbourhood Watch Registration and Operation
Legal issues regarding registration and the operation of neighbourhood watches are as follows:
Presently there is no national/provincial legislation which prescribes formalities to be complied
with to form a neighbourhood watch.
In terms of the Western Cape Constitution for Neighbourhood Watches a neighbourhood watch, toenjoy recognition with SAPS, must register with either the local CPF or Provincial CPF or local
SAPS. (this is not an Act / Regulation or by-law).
This registration, in theory, gives access to training by DOCS, resources from DOCS and the above
recognition by SAPS and the CPF.
Since neighbourhood watches are not statutory bodies – they are voluntary associations - and since
they in any event do not acquire separate juristic persona (members remain liable in their personal
capacity) it is possible for a neighbourhood watch to be formed and to function without registration
with the CPF and SAPS. This option does however limit such a watch in terms of access to
resources and training.
Failure to register with either the CPF or SAPS does however not render the neighbourhood watch
illegal and members of such watch would still be able to execute citizen‘s arrests as well as pursue
perpetrators (subject to permission from owners of property). This is done in terms of the
provisions of the Criminal Procedures Act and does not differ from the rights of any other
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May Private Persons Perform Arrests?
The South African Criminal Procedure Act (Act 51 of 1977) says in section 42:
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 havingcommitted 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;
(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 anyperson 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.
Analysis
A private person can arrest anyone who commits or attempts to commit a Schedule 1 offence.
A private person can arrest anyone whom he/she reasonably suspects of having committed a
Schedule 1 offence.
A private person can arrest anyone who is trying to escape from some form of authority (such
as a security guard or police officer).
A private person can arrest anyone whom he sees fighting.
A private person can pursue anyone who committed a Schedule 1 offence and any other private
person may join in the pursuit.
Any person in charge of property may arrest ANY person for ANY offence on that property.
Such a person (owner) can also delegate this power to an agent (such as a security guard or
tenant).
Must Private Persons Always Assist Police In An Arrest?
The South African Criminal Procedure Act (Act 51 of 1977) says in section 47:
47. Private persons to assist in arrest when called upon. — (1) Every male inhabitant of the Republicof 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.
Analysis
A private person (or any other private male between 16 and 60) MUST assist a police officer
who requires aid during an arrest.It is a PUNISHABLE OFFENCE to refuse AND will lead to a tarnishing of the reputation and
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What Are The Items That A Private Person May Search For?
The South African Criminal Procedure Act (Act 51 of 1977) says in section 20:
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 commissionor 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.
Analysis
Section 23(1)b authorises Private persons (or any private persons) to secure the items mentioned in
section 20 FOR THE STATE.
These items are:
ANYTHING that is being used to commit a crime (such as a knife that is used in a robbery) or
that may be concerned in the commission of a crime (a baseball bat that someone is waiting in
a dark alley with) or that you may have reasonable suspicion of being used in a crime, even if
that crime was committed in another country.
ANYTHING that can be used as evidence of a crime ANYWHERE.
ANYTHING that is intended to be used to commit a crime.
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May The Owner Or Manager Of Private Property Search Such Property?
The South African Criminal Procedure Act (Act 51 of 1977) says in section 24:
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 ortherein 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 shall take possession thereof and forthwith deliver it to a police
official.
Analysis
Property owners or their agents (such as security guards) can search their property.
Must A Search Be Conducted In A Decent And Orderly Manner?
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.
Analysis
Any search must be done in a dignified manner.
A man may not search a woman‘s body, but he may search her handbag or ask her to empty her
pockets.
How Shall An Arrest Be Affected?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.
Analysis
If the suspect does not resist, it is not necessary to touch him/her. If he/she resists you can
confine him/her with minimum force.
You MUST inform the suspect of the reason for the arrest, either while performing it or
immediately afterwards.
Once arrested the suspect is in custody and may not try to escape.
Can You Break Open Property For The Purpose Of An Arrest?
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 anypremises, may, if he first audibly demands entry into such premises and notifies the purpose for
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Use of Force
In law there are 2 distinctions to using force. They are the level of force you use in executing an
arrest and the force you use in defending yourself. They are 2 separate entities, and should not be
confused.
Some instructors teach you to snap a guys neck because he grabbed you, or to bend a knifers‘ wristback (usually an unrealistic option in any case), then to sweep the feet, grab the knife and slice 3
times over the throat, before plunging it into the chest. You will go to jail for this!
Punishment is the job of the courts! It is not your task. The war on crime may be fought in the
streets, but it is won in the courts.
THE PURPOSE OF ARREST IS NOT TO PUNISH THE SUSPECT BUT TO BRING
HIM/HER BEFORE THE COURT.
Always consider the legal ramifications, both during training and on the streets.
Much has been written regarding the use of force and much legal debate has occurred around the
subject. Because the courts look at each case on its own merits, there are no ‗hard rules‘ regardingwhen force may be used. The law however, does give us clear guidelines to follow in deciding
whether or not to use force and at what level that force should be. These guidelines can be found
in Sec 49 of the Criminal Procedure Act 51 of 77 (in South Africa). Know your laws, and abide by
them!
Use of Force in Effecting Arrest
Legal definitions:
(1) For the purposes of this section (Sec 49 of the Criminal Procedure Act 51 of 77):
(a) ―arrestor‖ means any person authorised under this Act to arrest or to assist in arresting a
suspect; and(b) ―suspect‖ means any person in respect of whom an arrestor has or had a reasonable
suspicion that such person is committing or has committed an offence.
(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: Provided that the arrestor is
justified in terms of this section in using deadly force that is intended or is likely to cause death or
grievous bodily harm to a suspect, only if he or she believes on reasonable grounds —
(a) that the force is immediately necessary for the purposes of protecting the arrestor, anyperson lawfully assisting the arrestor or any other person from imminent or future death or
grievous bodily harm;
(b) that there is a substantial risk that the suspect will cause imminent or future death or
grievous bodily harm if the arrest is delayed; or
(c) that the offence for which the arrest is sought is in progress and is of a forcible and
serious nature and involves the use of life threatening violence or a strong likelihood that it
will cause grievous bodily harm.
[S. 49 substituted by s. 7 of Act No. 122 of 1998.]
In terms of this section, you may only use force during an arrest if:
You are authorised to execute the arrest (a Schedule 1 offence)
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The person being arrested is aware of the arrest (the suspect does not think you are trying to
rob him and has been told ―You are under arrest‖)
An attempt to execute the arrest is actually made (you are actually trying to arrest him, not
fight with him)
The suspect resists the attempt (the suspect does not comply with you and refuses to bearrested)
There is no other means of effecting that arrest other than by the use of force (the suspect
does not react favourably to verbal instructions)
Only such force as may be reasonably necessary and proportional in the circumstances to
overcome the resistance or to prevent the suspect from fleeing is used (you cannot use
blows and cannot keep on fighting once he has been detained)
Lethal force may only be used if the force is immediately necessary for the purposes of protecting
the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future
death or grievous bodily harm, if there is a substantial risk that the suspect will cause imminent or
future death or grievous bodily harm if the arrest is delayed or the offence for which the arrest issought is in progress and is of a forcible and serious nature and involves the use of life threatening
violence or a strong likelihood that it will cause grievous bodily harm. In other words, in South
Africa you may generally not use lethal force to affect an arrest, except to protect yourself or
someone else.
The fact that Private persons do not carry weapons tends to free them from many of the difficulties
faced by those who carry weapons, but members are urged to consider the deadly nature of some
martial arts techniques. You can kill someone with a strike to the temple or to the throat or vagus
nerve or through an over-zealous application of a sleeper-hold. This is also an application of
deadly force!
To use UOF in a legal way we use a model called the Force Continuum. This is covered in depth
Unlawful attack, need not be associated with culpabilityor directed against the defender, must be aimed against alegally protected interest (life/bodily integrity), must be
imminent or already started, but not yet completed
Pushes
member,
bizarreresistance,unsafe to
approach,
psychotic,(also)
dangerous
animals
Attacks member,attempts to injure in
process of resisting /
escaping, rioting
crowds
Armed attack,
pre-planned,
implementsweapons/tactic
s – highly
injurious/lethal
, superior
size/numbers,dangerous /
injured
animals
Purpose Interaction Arrest/crowd control Arrest & Defence
Method used
Presence,
uniform,pronouncementof intent
Verbal interaction, advice, dialogue,
open questions, lawful order,persuasion
Guiding, escorting
Compliance
controltechniques
Defence directed against attacker, not more harmful thanattack; no less harmful alternative available
Am I Privately Liable If I Perform An Unlawful Arrest?
53. Saving of civil law rights and liability. — Subject to the provisions of sections 46 and 331, no
provision of this Chapter relating to arrest shall be construed as removing or diminishing any civil
right or liability of any person in respect of a wrongful or malicious arrest.
You are privately liable if you perform an unlawful arrest.Schedule 1 Offences
Treason.
Sedition.
Public violence.
Murder.
Culpable homicide.
Rape or compelled rape as contemplated in sections 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, respectively.
Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5 or 7 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or
the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007,
respectively.
Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law(Sexual Offences and Related Matters) Amendment Act, 2007.
Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007.
Robbery.
Kidnapping.
Childstealing.
Assault, when a dangerous wound is inflicted.
Arson.
Malicious injury to property.
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit
an offence.
Theft, whether under the common law or a statutory provision.
Receiving stolen property knowing it to have been stolen.
Fraud.
Forgery or uttering a forged document knowing it to have been forged.
Offences relating to the coinage.
Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances
referred to immediately hereunder, the punishment wherefore may be a period of imprisonment exceeding six
months without the option of a fine.
Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to
in this Schedule or is in such custody in respect of the offence of escaping from lawful custody.
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.