5. POLICE POWERS AND DUTIES

Current South African law

(i) Due process rights and the Constitution

5.1 In terms of section 35 of the Constitution all the due process rights applicable to arrested, detained and accused persons also apply to children. Additional rights granted children in section 28 are the right not to be detained except as a measure of last resort and for the shortest appropriate period of time; the right when detained to be kept separately from persons over the age of 18; and the right, when detained, to be treated in a manner and kept in conditions that take account of the child’s age. These rules may affect pre-trial procedures.

(ii) Legal provisions regarding pre-trial detention

5.2 The current South African legal position regarding pre-trial detention including detention in police cells is dealt with in Chapter 6 below.

(iii) Arrest and alternatives to arrest

5.3 It has been noted that arrest is the primary method of securing the attendance of juveniles in court. Other options in the Criminal Procedure Act include a written notice to appear in terms of section 56 which can be issued by the police, and the use of a summons in terms of section 54. However, their use in practice has been hindered by reason of the fact that a written notice can only be issued for very minor offences, and because of the necessity of locating a parent or guardian prior to the handing over of a written notice or summons for the purposes of warning the parent or guardian to attend court proceedings.^[33]

5.4 There appears to be an inconsistency in the Criminal Procedure Act as far as warning and notification of the parent and guardian of an accused person under 18 are concerned. Section 50(4) requires the investigating officer to notify the parent or guardian about the arrest, while section 74(2) requires the arresting officer to inform the parent or guardian of the time, date and place where the accused is to appear. In practice, the task of notification has been neglected, with the arresting officer and the investigating officer relying on each other to carry out the task.^[34] The consequence of this is that the child, on first appearance in court, cannot be released into the care of his or her parents.

5.5 In terms of section 50(5) of the Criminal Procedure Act, the police have to notify a probation officer when a child is arrested. In the absence of a probation officer, an available correctional official must be notified of the arrest of any juvenile. It appears that this is not consistently done in practice.

5.6 Although the present South African system regards the prosecutor as dominus litis, it has been widely noted that the police too have a gatekeeping role in the criminal justice system.^[35] They can choose not to charge an arrested person in certain instances (for example loitering). There is no known study of informal police decision making of this type in South Africa to illustrate the extent to which the police at present play this role.

International perspective

5.7 There are a number of international principles regulating police powers and duties in relation to juvenile justice. Some of these include:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.^[36]
A child should be informed promptly and directly of the charges against him or her and, if appropriate, through his or her parents or legal guardians.^[37]
Contacts between law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to him or her with due regard to the circumstances of the case.^[38]
Discretion of officials shall be exercised in such a way as to enhance the rights of children/young people.
Diversion of children/young people away from the mainstream criminal justice system should be possible at all stages of the process.^[39]

Proposals

(i) Arrest and alternatives to arrest

5.8 National guidelines should be drawn up on the powers of the police to arrest persons who appear to be under the age of 18.^[40] The current norm that arrest is the primary means of securing the presence of the juvenile at court should be reconsidered. Initial statistics from the Arrest, Reception and Referral Centre at the Durban Magistrates Court (hereinafter referred to as the ARR Centre) indicate that the majority of children that appeared at the Centre are school-going children with residential addresses. This indicates that arrest is not the only manner in which the juvenile’s attendance at Court may be secured. However, broadening of the scope of application of the written notice to appear and the summons would need to occur. Whether national guidelines on powers of arrest should be included in proposed legislation, or developed by the SAPS, is a matter on which comment is invited.

5.9 Distinctions between minor and serious offences could be drawn and alternative methods of securing the attendance at Court of young persons involved in the commission of less serious offences could become mandatory. In Canada, provisions within the Young Offenders Act empower the police to directly issue process to a young offender, requiring him or her to appear at youth court on a certain date. An improvement on this practice more compatible with our evolving system of juvenile justice might be for the police to serve a process on the juvenile requesting her/him to present herself/himself to the Reception Centre where a joint recommendation could be made as to whether or not she/he should be prosecuted.

(ii) Notification of parents, guardians and other role players^[41]

5.10 In concurrence with the IMC recommendations, it is proposed that the police continue to bear the primary responsibility for tracing and notifying parents, guardians or other persons able to fulfil a supportive role towards the juvenile. Notification should occur whether arrest or an alternative means of securing attendance of the juvenile is used, but failure to find parents or guardians should not preclude the use of alternative means of securing attendance where necessary. A provision similar to section 50(4) of the Criminal Procedure Act would therefore need to be included in proposed legislation. The arresting officer or the officer who issues the summons or written notice (issuing officer) would bear this responsibility. As is currently the case, the legislation should place the responsibility on the arresting officer/issuing officer to also notify the probation services. Finally, where assessment, reception or referral centres are functioning, the police would have a duty to take the juvenile as soon as possible to this centre, even if it is after hours.^[42]

(iii) Diversion by police

5.11 Informal diversion as presently practised by police (for example, asking juveniles to move, instead of arresting for loitering) may not need to be legislated, but, in line with international rules, provision needs to be made for a greater possibility of diversion options to be exercised by police prior to arrest, summons or written notice to appear. Police cautioning has been suggested as an appropriate and inexpensive option for South Africa.^[43] International studies show that there are two possible types of police caution to be considered. One is an informal police caution to be administered by the police officer at the scene. A second type of police caution is a formal caution in the presence of the parents or guardian by a ranking officer. The decision to divert to a formal caution could be made by the police. This would be the most efficient and practical process. However, another option would be to include other persons in the decision-making process.

Comment or suggestions on the proposals outlined above are invited.

[33] In 1995, in the Western Cape, only 11% of arrested children were released before court appearance on police warning (J127).

[34] A Skelton Children, young persons and the criminal procedure (supra).

[35] L Fernandez Juvenile diversion through police cautioning in J Sloth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy (forthcoming).

[36] CRC article 37 (b).

[37] CRC article 40(2)(b)(ii).

[38] Beijing Rule 10.

[39] CRC article 40(3)(b).

[40] Also see IMC Recommendations 36.

[41] The Correctional Services Amendment Act 17 of 1994 extends parent and guardian to parent, guardian and other suitable person. Future legislation may need to define other suitable person to include social workers, etc.

[42] The practice of bringing children to court just before the expiry of the 48 hour period is counter productive. Legislation may need to exclude this practice.

[43] IMC Recommendations 39.

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