When can you make a Citizen’s Arrest?

13 August 2021 12:00

Individuals have rights under the Constitution and formal requirements in the Criminal Procedure Act circumscribe the nature and correctness of arrests by private persons like Neighbourhood-Watch groups.

The recent unrest has highlighted the important contribution Residents Associations, Home Owner Associations (HOAs), Neighbourhood-Watch groups and Community Policing Forums make towards protecting lives and property when assisting the stretched resources of the SAPS, the SANDF and private security companies.

The unrest has also borne witness to misdirected, excessive use of force (vigilantism in effect) by community organisations.  Whatever the motivation and what individuals think they are entitled to do in the heat of the moment, the law must be obeyed when it comes to arrests by private persons.

Arrests by private persons are governed by the Criminal Procedure Act, No. 51 of 1977 (the CPA) and the Constitution of the Republic of South Africa, Act No. 108 of 1996 (the Constitution), and consider the following:

Under what circumstances

In terms of section 42 of the CPA: 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 authorised 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 any person is found committing any offence, and any person authorised thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.

[Sub-s. (3) substituted by s. 13 of Act No. 59 of 1983.]

How, and with how much force

In terms of section 49 of the CPA: Use of force in effecting arrest

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.

For committing which offences

In terms of Schedule 1 of the CPA the following offences are listed:

  • Treason
  • Sedition
  • Public violence
  • Murder
  • Culpable homicide
  • Rape or compelled rape
  • Sexual assault, compelled sexual assault or compelled self-sexual assault
  • Any sexual offence against a child or a person who is mentally disabled
  • Trafficking in persons
  • Bestiality
  • Robbery
  • Kidnapping
  • Child stealing
  • 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 wherefor 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
  • Any person who—

(a) commits torture;

(b) attempts to commit torture; or

(c) incites, instigates, commands or procures any person to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life

Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.

What to be mindful of when making a Citizen’s Arrest

It is important to be mindful of the rights which individuals have under the Constitution, such as, the right to human dignity (Section 10), the right to freedom and security (Section 12), Privacy (Section 14) and the right of arrested, detained and accused persons to a fair trial (Section 35) - all of which circumscribe the nature and correctness of arrests by private persons.

The courtshave ruled that depending on the circumstances, for an arrest to be valid, the following issues should be present and/or are relevant:

  1. The arrester must intend to arrest the arrested person for the purpose of handing them over to the police. Shooting at fleeing suspects out of irritation is not an attempt to arrest.
  2. The power to arrest must be exercised sparingly and the use of a firearm should be resorted to with caution and then only after the suspect has attempted to escape or offered resistance. (See S v Martinus 1990 (2) SACR 568 (A).)
  3. There must be a proportionality between the degree of force used and the seriousness of the crime of which the victim is suspected.
  4. Reasonable grounds/suspicion of having committed an offence means that the suspicion must have existed at the time of the intended arrest and that the offence had been committed. It can’t be a vague suspicion. The suspicion must be based on what the situation is based on the facts, not what the arrestor thinks they could be. It is an objective test of reasonableness.
  5. There must be no other reasonable means of arresting the suspect – by using less force or by later action.
  6. If the lawfulness of an arrest is doubted, the burden of proof to prove that it is lawful, rests on the arrestor.