James Grant

One’s conduct is not unlawful (and so not criminal) if one acted in self defence. The requirements of self defence are fairly straightforward:RELATING TO THE ATTACK:1. There must be an attack on or infringement of one of your rights – this may be your right to bodily integrity, but could include your right of movement;2. It must have commenced or be immenent; and3. It must itself be unlawful – thus eg, if one seeks to evade legitimate arrest, one may not rely on self defence.RELATING TO THE RESPONSE:1. Force used in response must be directed against the attacker;2. It must be necessary – ie there must be no (reasonable) alternatives;3. The extent of force used must be reasonable – all things considered, including, the reletaive size of the attacker vs the accused, the time of the, the means at hand, the interests at stake … Thus, if the EFF vehicle was authorised to enter the memorial park, the requirements for the “attack” appear to be satisfied. Whether the accused could succeed with a claim to self defence would then turn on whether force was necessary at all, and if it was, whether the extent of force used was reasonable. But there is more – for there to be the necessary intention to assault – even if a court finds that the force used was unnecessary and/or unreasonable, the prosecution must prove that the accused knew or foresaw the real possibility of this.

James Grant

If one is arrested one may be permitted on bail – before one’s first appearance in court. These instances should be regarded as exceptions to the rule that one may apply for bail at one’s first appearance.[1]

They fall into two categories and are known as either “police bail” or “prosecutor bail”. Both categories are restricted to relatively minor offences.

Police bail is provided for in section 59 of the Criminal Procedure Act, which provides as follows:

(1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.

It is unfortunate that this section is phrased in the negative and that this is so is not immediately apparent. The section provides that an officer of the relevant rank (such as a commissioned officer),[2] in consultation with the investigating officer, may grant bail if the offence for which one was arrested is not one of the following:[3]

• Treason.
• Murder.
• Rape or compelled rape as contemplated in sections 3 and 4
• Any sexual offence against a child or a person who is mentally disabled
• 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.]
• Robbery.
• Kidnapping.
• Childstealing.
• Arson.
• Breaking or entering any premises, 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, in each case if the amount or value involved in the offence exceeds R2 500.
• Offences relating to the coinage.
• Sedition.
• Assault, when a dangerous wound is inflicted.
• Any offence under any law relating to the illicit possession of-
  • dagga exceeding 115 grams; or
  • any other dependence-producing drugs; or
  • conveyance or supply of dependence-producing drugs.
• Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones.
• Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.
• Contravention of the provisions of section 1 and 1A of the Intimidation Act, 1982 (Act 72 of 1982).

The section requires that the relevant officer exercises a discretion – the word is “may” be released on bail. However, the discretion is not unfettered and cannot simply be ignored. If one has been arrested for an offence that triggers the section – an offence not in the list – an officer of the relevant rank must consider granting bail.^[4]

Then – once the officer exercises this discretion, she or he must be ‘objectively rational and the same considerations’.[5]

It is worth noting – on a practical level – that only cash is accepted for police bail. It is therefore wise to arrange for a family member or friend to bring about R1000-2000 (or more if necessary) to the police station -if you qualify for bail – and in case it is granted.

Prosecutor’s bail is similarly circumscribed – provided for under section 59A(1) of the Criminal Procedure Act, as follows:

An attorney general, or a prosecutor authorised thereto in writing by the attorney general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.

Unlike for “police bail”, the list (in schedule 7) is formulated in the positive – if the offence is in the list, the nominated prosecutor may grant bail. The list is as follows:

• Public violence.
• Culpable homicide.
• Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
• Assault, involving the infliction of grievous bodily harm.
• Arson.
• Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
• Malicious injury to property.
• Robbery, other than a robbery with aggravating circumstances, if the
• amount involved in the offence does not exceed R20 000,00.
• Theft and any offence referred to in section 264 (1) (a), (b) and (c), if
• the amount involved in the offence does not exceed R20 000,00.
• Any offence in terms of any law relating to the illicit possession of
• dependence-producing drugs.
• Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000,00.
• Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

On a practical note – a police station is supposed to keep a roster of the public prosecutors on duty to consider prosecutor bail. If one qualifies in terms of the offence with which one is charged, one is entitled to request that the nominated prosecutor is contacted by the relevant police official. If the police refuse or fail to, you (or your legal representative) may request the number so as to draw the attention of the nominated prosecutor to your case, that you qualify for prosecutor bail and desire that she or he consider releasing you on bail.

If you do not qualify for either police or prosecutors bail, you will have to wait until your first appearance at which time you may apply for bail – under section 60(1)(a) of the Criminal Procedure Act.[6] Applications for bail before court are concerned with whether it is in the interests of justice for you to be released. Courts are required to consider the following criteria – set out in section 60(4) of the Criminal Procedure Act,[7] which are given further content in section 60 – although this is not relevant here (to bail before one’s first appearance).

In conclusion then, find out what it is that you are charged with. Determine whether it is an offence which is not listed in Part II or Part III of Schedule 2 as set out above. If it is not, then you are entitled to have a commissioned officer consider whether you may be permitted on bail. If the offence is listed in Part II or Part III of Schedule 2 as set out above, you may still qualify for prosecutor bail – if the offence is one listed in schedule 7 – set out above. Both of these forms of bail are means to achieve your release on bail before your first appearance in Court and should be exercised vigorously by both arrested people and the police to avoid people arrested for minor offences burdening an already overburdened criminal justice system.  

 James Grant

9 January 2018

[1] Section 60(1)(a) of the Criminal Procedure Act 51 of 1977 provides:

An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.

[2] In Mvu v Minister of Safety and Security & another 2009 (2) SACR 291 (GSJ)

at 300d–e Willis J observed that that a ‘commissioned officer’ is an officer of or above the rank of inspector, while a ‘noncommissioned officer’ is a police officer under the rank of inspector.

[3] The list that follows is a collation of the two lists (Part II or Part III of Schedule 2).

[4] See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) in which Rossouw AJ said:

‘. . . I am of the view that once the jurisdictional facts for the consideration of police bail in terms of s 59(1)(a) of the CPA are present, the police has a constitutional duty to ascertain as soon as reasonably possible after the arrest whether the arrestee wishes bail to be considered. If the arrestee wishes to apply for police bail, the senior police official, in consultation with the investigating police official, must consider bail as a matter of urgency. A failure to inform the arrestee of his constitutional right to apply for bail or a failure to consider bail or any unreasonable delay in the process could, depending on the circumstances of the case, render the arrestee’s further detention until his first appearance in court unlawful.’

[paragraph 38]

See also Shaw v Collins 1883 SC 389 and MacDonald v Kumalo 1927 EDL 293.

[5] See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) at para 41.

[6] See footnote 1.

[7] According to section 60(4) of the Criminal Procedure Act:

The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1

offence; or

(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice

system, including the bail system; or

(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

This is advice I had to give to someone in the middle of an especially dark night in a police station where the law meant nothing and the mention of it was treated with contempt. That night both the victim and I walked out of the station alive. This should be your singular purpose if you are ever arrested.

The police had nearly killed the victim when they arrested him for refusing to be searched – and for making the fatal mistake of saying that he knew his rights. I fear what would have happened if he had to spend the night in the cells.

Police are entitled to effect an arrest only to secure the attendance of an accused person at his or her trial. It might come as a surprise to many, but it will almost certainly come as a surprise to most members of the police, that the job of a police officer does not put them in contact with criminals. Their job is to deal with suspects – not criminals. If one is tempted to think this away as a distraction, realise that you would have to think away the entire system of adjudication according to law – you would have to think away the courts. This might even seem attractive until you realise that you could be the one who somehow comes into contact with a police officer who has judged you already and is determined to punish you.

Police powers of arrest are set out in section 40, 43 & 44 of the Criminal Procedure Act (51 of 1977). Sections 43 and 44 relate to arrests under a warrant.* These are issued after a Magistrate or Justice has applied his or her mind – and do not concern the abuse of police discretion – and so is not relevant here. Section 40 provides for the arrest of a person without a warrant.

It is important to understand, from this, what it is that a police officer may arrest one for and what an officer may not arrest one for. There is, of course, no point in repeating the list in section 40* as supplemented by schedule one.* It may be helpful to bear in mind – in addition to the list – what may well be considered the outer limits of the offences for which an arrest may be effected. This may be found in the schedule, as follows:

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.

Instances where an officer may not effect and arrest must include where a person refuses to pay a bribe or to buy a coke for an officer. In addition, an officer may not arrest one for saying that one knows one’s rights – although this is almost certain to result in one’s arrest. One may not be arrested for refusing to allow an officer to search you.

Of course, if the officer has reasonable ground on which to search you – under the appropriate law of search and seizure – the officer may then use force to effect the search – but he may not arrest you in order to search you. He may also not arrest you for interfering with him in his duty – s/he is not authorised to arrest you in these circumstances but to use force to effect the search.***

Some practical advice – in case you are arrested: record everything. Ideally record both video and audio of everything that is said and done. To this end – for arrests from a vehicle – investing in a dashcam that will remain on – even if just to record audio for some 10 minutes after the ignition is switched off. Switch your cell phone on to record – in fact – make sure that it is set up to record easily with the press of a shortcut or a few keys. As soon as possible upload the recordings to the web.

Move slowly if you need to retrieve anything – and explain what you are doing if you reach for anything.

Note the names and force numbers of the relevant officers – even if you only get the name of one – this can lead to the rest. Similarly for the vehicles that the officers are driving. What kind of car, what colour? Number plates are first prize – after names and force numbers of the relevant officers.

Set your phone to send an emergency alert from the moment you realise you are about to have an encounter with the police. Let the message read that you about to have an encounter with the police and that if you do not send a “cancellation” message within, say, 10 minutes, your contacts should come looking for you. The cell phone app “Glymse” offers an amazing service that sends one’s position for a limited period – which one may customize.

Be polite – even if outrage is appropriate. Regrettably the message is that you must shutup and suck-it-up even if you are in the right so that you can live to fight another day – in the cold light of day in a place where the law matters.

If you are arrested call your family and friends and tell them to go to the relevant police station. To the family and friends of anyone who is arrested, go immediately to the police station. Let the police know that you are there for a particular person. Insist on visiting with the detainee. Section 35(2)(f) of the Constitution provides:

Everyone who is detained, including every sentenced prisoner, has the right-

…

to communicate with, and be visited by, that person’s-

(i) spouse or partner;

(ii) next of kin;

(iii) chosen religious counsellor; and

(iv) chosen medical practitioner.

Take note and – ideally – take photos of any injuries. Take the detainee food and something to drink. Set up a vigil at the station or visit regularly at arbitrary times – until the first appearance in court. This must be 48 hours from arrest – or if the 48 hours expires on a non-court day,**** then by the end of the first court day**** (usually a Monday).

There are good officers and bad officers. I am shocked at the prevalence of bad officers and the brazen disregard for law that has informed the tone of this discussion. There are good officers out there – perhaps even the majority of officers. My job doesn’t bring me into contact with many of them. What I can say is that you should make no mistake, there are many bad officers out there and if you say or do something which – although perfectly legitimate – the officer considers somehow wrong, you could be in mortal danger.

Something that is often not appreciated is that when a police officer arrests you unlawfully or uses excessive force in effecting an arrest, it is not only the crime of assault which is inevitably committed, but – to the extent to which the officer foresees the possibility that s/he may not be entitled to arrest you in the circumstances – the crime of kidnapping is also committed. Kidnapping is committed where a person – any person – interferes with the freedom of movement of another – intentionally and unlawfully.

The importance of this is that unlike, for instance, an assault which took place upon arrest, where any other officer becomes aware of the assault afterwards, that other officer does not become a party to the assault. The critical difference with kidnapping is that so long as it endures – that is, the unlawful interference with one’s freedom of movement – any officer who becomes a party to the continued interference with one’s freedom of movement, and who foresees that the detention may not be lawful, him/herself commits kidnapping – by common purpose. One may expect that an officer may avoid this liability by simply refusing to acquaint him/herself with the true position in respect of anyone brought to the station under arrest. For some in lower ranks, perhaps. However, for any officer in any sort of authority, there is a legal obligation to ensure that those who are held in detention are lawfully in detention and their continued detention can be justified. Wilful ignorance on the part of any of these officers in authority is a well-recognised form of intention in our law.***** In the result, both the arresting officers and anyone who came to suspect – even by wilful ignorance – that a detention is unlawful, commits kidnapping.

In conclusion, if you become another victim of the abuse of authority, be polite, quiet, record everything, communicate your predicament, but make sure you live to fight another day.

Remember if is not all for nothing. You will have your day and on that day, not only must you require that your assailants are charged with assault, but that the arresting officers and everyone at the station who should have protected you, are charged with kidnapping.

James Grant

8 January 2018

[UNDER CONSTRUCTION: More to follow]

This is an attempt to pull together the cases and materials regarding the prosecution of President Zuma on 783 charges of fraud:

1. The judgment in respect of which Mr Zuma has applied for leave to appeal to the SCA – to be heard today (14 Sept 2017): DA v ZUMA HC Gauteng 29 April 2016 (ex annot)
   1. Application by NDPP for direct access to CC: NPA Application Direct Access (Spytapes) – rejected by CC;
   2. Application by NDPP for direct access to CC: DA v ZUMA HC Gauteng 29 April 2016 (ex annot).
2. [To follow]
3. The judgement of Harms NDPP v Zuma (573_08) [2009] ZASCA (12 Jan 2009) setting aside the judgement of Nicholson J which had set aside the decision of the NDPP to prosecute Mr Zuma. This is the judgement in which on finds the statement that substance must prevail over form and process.

[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions. (footnotes omitted)

However, this quote above is often referred to out of content – without reference to the very next paragraph in which Harms contemplates that an abused of process for ulterior purposes may invalidate conduct.

[38] This does not, however, mean that the prosecution may use its powers for‘ulterior purposes’. To do so would breach the principle of legality. The facts in Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order illustrate and explain the point. The police had confiscated machines belonging to Highstead for the purpose of charging it with gambling offences. They were intent on confiscating further machines. The object was not to use them as exhibits – they had enough exhibits already – but to put Highstead out of business. In other words, the confiscation had nothing to do with the intended prosecution and the power to confiscate was accordingly used for a purpose not authorised by the statute. This is what ‘ulterior purpose’ in this context means. That is not the case before us. In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive. (footnotes omitted)

4. The judgement of Nicholson J which set aside the decision of the NDPP to prosecute Mr Zuma: Zuma v National Director of Public Prosecutions (8652_08) [2008] ZAKZHC 71 (12 September)

Section 4 of the Protection of Information Act 84 of 1982:
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There is something about the nature of private defence that is perhaps necessary for us, as fathers and mothers to be reminded of – given the current state of lawlessness and this risks our children face. 

Private defence is available when “public defence” is unavailable. This follows quite straightforwardly form the underlying basis for private defence: the social contract. Under the social contract, private citizens have given up their rights – in favour of the state – to the use of force to protect their rights, or to endure that justice is done when rights have been infringed. It follows that when the state is unavailable to protect rights, the individual citizen may take the law (back) into his/her own hands.

One must be careful to construe this right to take the law back into one’s own hands. In order to give expression to this right, the law has set strict requirements for when this may be done, and has limited the extent of force that may be resorted to.

The requirements are as follows:

There must be a commended or imminent unlawful attack upon a legally protected right. All rights are recognised, including the right to dignity and the right to property. However, the extent of force used will be restricted according to the objective value of the interest in question. As far as property is concerned, as our law stands (S v Van Wyk 1967 AD), one may resort to the use of force to defend one’s property, but the right is limited according to the value of the property. This is controversial and we may expect that the Constitutional Court may restrict this right even further. My sense is that the Constitutional Court may restrict the right to use force in protection of property to the protection of property required to support other rights in the bill of rights, such as shelter, life, and to work.

If these requirements are satusfied, then a person (any person – as will be discussed below) may resort to the use of force – limited as follows:

The force must be directed at the person infringing the right or rights in question. It must be necessary to resort to force to end the attack. Then, finally – and crucially, it must be reasonably, given all the circumstances. This requires an all encompassing inquiry that takes account of the nature of the attack, the nature of the interests infringed or imminently to be infringed, the time of day, the relative strengths of the victim and attacker. You may not use lethal force to take back a sweet from a bully, even if that would be the only way to retrieve the sweet. Equally, you cannot kill someone for slapping you. But if your life or body integrity is at risk, you may kill the attacker.

Now, what if someone kidnaps your 13 years old daughter and the police refuse or fail to assist in freeing her form the kidnappers – even where they know whether she is being held. In my view, this would give rise to the right to the use of force to vindicate the rights infringed.

I have alluded to the fact that one may act on behalf of another. This is so because of the nature of private defence. It’s is what is known as a ground of justification. When one acts in private defence, your conduct is justified and, in effect, the right thing to do. As such, it is universal – anyone may act where there is a ground of justification because anyone may act in private defence. Anyone may act in private defence because doing so is the right thing to do.

I am a father. I am not in favour of vigilantelism. But if someone took one of my daughters, I am guessing, but I expect the police will need to arrest me first.

I hope that I am able to exercise self control in the circumstances though, and that I do the right thing – to go to the police and ask for help. But if they fail to help – and if I knew where my daughter was being held, I believe that the law would permit me to do what is necessary to free her.

I expect that I would do so, and in doing so, I would hope that all other fathers and mothers would join me in retrieving my daughter and I believe we should all do so when one of our daughters is taken. For what it’s worth, I’d be there.

Judge Vally’s order, that President Zuma must provide the record of his reasons, is known as an interlocutory ruling. It doesn’t decide the main dispute – only a procedural step along the way.

Normally, these cannot be appealed – because litigation would be endless if every ruling were appealable and everything was appealed.

But our law in both the common law (court judgments) and in the High Court rules, seems to provide for it – in exceptional circumstances. Ultimately the test will be what is in the interests of justice, and some of the considerations are whether a significant portion of the dispute has been decided, would irreparable harm be done, and is the rulings truly final. Arguably, given the importance of the matter, Zuma may succeed in persuading a court that this ruling perhaps goes sufficiently deep into to the issue, would be irreparable if observed, and is final on this issue, would case irreparable harm, and it cannot be altered. So Zuma may be able to overcome the hurdle that Judge Vally’s ruling is only interlocutory in nature.

That does not mean he will be granted leave to appeal – that is another hurdle and the ordinary rules apply there: especially that there must be reasonable prospects of success. And yes, if Zuma is denied leave by the Pretoria High Court, he may apply to the SCA – and so it goes.
But what of the effect of Judge Vally’s order? For many, this is the real question – as it is for me.
Here one must consult the almost unintelligible rule 18 of the High Court rules.

Section 18(2) provides that if one applies for leave to appeal or appeals an interlocutory ruling, the effect of the ruling is not suspended – unless the applicant can show exceptional circumstances, which include that the applicant will suffer irreparable harm. The point is that Judge Vally’s order remains in force as the default and time is running – tomorrow (at the time of writing) is the deadline whether you have applied for leave to appeal or not. There could be and probably will be a condonation application – a please forgive me for being late with my homework. But crucially, the clock is ticking. 

To stop the clock, the burden will be on Zuma to persuade the Pretoria High Court:

1) to Grant him leave to appeal; AND

2) that there are these exceptional circumstances that require that the court suspend the order that he must provide the record of his decision. 

If Zuma is successful, the court will order that the ruling that he must disclose the record is suspended. But if this happens, it triggers in the rules an almost unbelievable consequence. Under rules 18(4), the moment the suspension order is granted, suspending the effect of the original ruling, that order to suspend the effect of the ruling, is itself suspended. To be clear, even if Zuma is successful in persuading the High Court to grant leave to appeal and to suspend the ruling that he must disclose the record, that order is suspended and he must still provide the record. The order of suspension will be suspended, until the appeal is decided. 

Unbelievable? Yes. Does the law sometimes get it right, even by committing a few compensating wrongs?

– James Grant 

10 May 2017

On 12 April 2017 the North Gauteng (Pretoria) High Court granted 2 orders:

1. That Ntlemeza’s appointment as the Head of the Hawks is invalid (the main order); and
2. That the order (that the appointment is invalid) is effective immediately (the order-effective order).

In the absence of this order-effective order, an appeal by Ntlemeza would suspend the main order – in terms of s 18(1) of the Superior Courts Act. The section reads as follows:

“Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”

However, the applicants persuaded the Court that there were exceptional circumstances so that the court ordered “otherwise”: that the main order (that Ntlemeza’s appointment was invalid) would be effective even if appealed.

However, when a Court orders “otherwise”, it triggers, in turn, an automatic right of appeal, and – almost unbelievably – an automatic suspension of the order that the main order is not to be suspended, as follows. Section 18(4) states:

If a court orders otherwise, as contemplated in subsection (1)—

(i)  the court must immediately record its reasons for doing so;

(ii)  the aggrieved party has an automatic right of appeal to the next highest court;

(iii)  the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv)  such order will be automatically suspended, pending the outcome of such appeal.

So, to be as clear as possible, if Ntlemeza has properly lodged his appeal, the order to suspend the order invalidating his appointment as Hawk’s Head, is suspended. Bottom line, right now, General Ntlemeza is the Head of the Hawks.

James Grant

24 April 2017