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LOCKED-UP IN LOCKDOWN. NOW WHAT?
JC Van Zyl
27 May 2020

A practical guide on how to deal with getting arrested – the do’s and don’ts as well as a brief summation of the rights of detainees entrenched in our Constitution.

 

Questions surrounding the theme of incarceration are in the back of many citizens’ minds, but not often answered frequently in layman’s terms. This article seeks to do so. It is at the outset, important to realize that being a law-abiding citizen does not mean that you’re immune to being arrested and, unfortunately, you need to come to terms with the reality that you could face that dreadful day when a peace officer slaps cuffs on you, so to speak.

Even more so now, where getting arrested has become an even greater reality in everyone’s normal day-to-day lives, especially for trivial transgressions such as exercising after curfew, purchasing non-essential goods, transporting liquor or travelling without a permit. “These activities have never been a ‘crime’ and so if I were to be a little disobedient, what is the worst that could happen?” you may ask.

With that in mind, it is vital to appreciate that the various regulations promulgated in terms of the Disaster Management Act No. 57 of 2002 are not merely guidelines but, to a large extent, similar to other legislation which citizens traditionally adhere to (such as regulations pertaining to the speed limit). The difference is these regulations are only enforceable during a state of disaster.

Recent reports state that, since the commencement of Lockdown, more than 230 000 people have been arrested for and charged with violating Lockdown regulations.

Prohibitions encapsulated in these regulations may result in an arrest and ultimately a criminal record – from a legal perspective, it’s prudent to advise that these regulations should by no means be taken lightly. The purpose of this article is to present you with a few practical tools to assist you, should you find yourself right on the wrong side of the law, during the various Alert Levels of Lockdown.

It’s vital to understand the rights of arrestees in general as they are in no way dissimilar to what finds application during an arrest in a state of disaster, apart from a few exceptions such as visitation by a spouse or next of kin.

Rights of arrested, detained or accused persons are, amongst other, set out in Section 35 of our Constitution, apposite extraction of which are as follows:

“(1) Everyone who is arrested for allegedly committing an offence has the right—

(a) to remain silent;

(b) to be informed promptly—

(i) of the right to remain silent; and

(ii) of the consequences of not remaining silent;

(c) not to be compelled to make any confession or admission that could be used in evidence against that person;

(d) to be brought before a court as soon as reasonably possible, but not later than—

(i) 48 hours after the arrest; or

(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;…

(2) Everyone who is detained, including every sentenced prisoner, has the right—

(a) to be informed promptly of the reason for being detained;

(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

(f) 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.”

 

Further, and equally important is the Procedure after arrest which is dealt with in Section 50 of the Criminal Procedure Act, which is also worth reading.

You may also be familiar with the phrase Miranda Rights warning often used in films and television shows. It’s a notification customarily given by American police officers to criminal suspects in custody and, is not only very similar to the rights which need to be held to a detainee in our country but is also worth committing to memory. It goes something along the lines of:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

In South Africa however, these rights are put forth in the form of a declaration which will only be presented to you at the Police Station for signature.

That said, it’s vital to take note of these key rights before ending up in an incident where you may be subjected to an arrest. These  include, amongst others, the following:

  1. You have the right to remain silent;
  2. You have the right to be informed of the consequences of not remaining silent;
  3. You have the right to be informed of the aforesaid rights promptly;
  4. You have the right to be promptly informed of the reason(s) for being detained;
  5. You have the right to be brought to a Police Station as soon as possible;
  6. You have the right to a legal representative such as an attorney and be promptly informed of such right;
  7. You have the right not to be compelled to make any confession or admission that could be used in evidence;
  8. A person in detention also has the right to be informed of the right to institute bail proceedings.

The most important of these rights is probably the entitlement to remain silent, simply to avoid making any silly confessions or admissions. Although this sounds obvious, most suspects try and talk their way out of trouble and end up doing more damage than good along the way. Once you have been informed of your right to remain silent and you elect not to do so, it is important to be cognisant of the fact that anything you say, from that point forward, may be tendered as evidence and used against you in a court of law, even something trivial, such as an innocent conversation with an officer.

With your rights in mind, let’s move onto some practical guidelines on how to deal with getting arrested – the do’s, don’ts and documents.

Whether you were involved in the commission of an offence or not, some peace officers have unfortunately already decided you are guilty. It’s pointless trying to argue with them. No matter how cheesy it sounds, the best advice is to stay calm and composed. Attitude plays a significant role in dealing with these incidents. Your reaction and demeanour are vital in defusing an already tense situation. Be polite, compliant and co-operative, without giving consent to a search of your vehicle, for instance.

Do not make snide remarks and avoid wittiness or coming across as obstructive.

If things go belly up and you come to realise that you are going to be arrested, then you need to ascertain two very important pieces of information. First of which is, what you are being charged for – for instance travelling without a permit and, in the instance which Police Station will you be detained at. The officer is compelled to let you have this information, which is vital in enabling your attorney to rush to your aid.

 

At this juncture, the best advice would be to immediately contact your attorney and have him/her meet you at the relevant Police Station. Make use of your right to remain silent and whatever you do, do not depose to any affidavits. Investigating Officers often encourage suspects to divulge their version of the story and also have detainees depose to a warning statement, which is not only under oath but also forms part of the evidence compiled in the docket.

Do not say or sign anything!

Once you’ve been charged for transgressing Lockdown regulations you could be afforded the option to pay a fine. Sure, it is a quick way out… What is often forgotten, is that this option serves as something we refer to as an Admission of Guilt-fine (“AOG”) which means you will not only be penalized with a monetary penalty but also have a criminal record registered against your name. This should by no means be compared to a speeding ticket as the ramifications are much greater.

In the absence of the option of an AOG, you may (more likely than not) be detained at the Police Station until you are brought before a lower court a day or two later and released on bail (if circumstances permit of course). An open court bail application is however not your first port of call or only remedy in seeking to be released on bail.

Certain transgressions, such as Lockdown regulations, fall within the ambit of Sections 59 and/or 59A of the Criminal Procedure Act which, in a nutshell, provide that an accused (subject to a few ancillary requirements) may before his/her first appearance be released on bail by any police official above the rank of non-commissioned officer, meaning a rank of Captain or higher. In the case of more serious offences, Section 59A provides for a prosecutor to grant bail afterhours at the Police Station.

“Well, in that case I should be released” – this is what everyone thinks. Don’t be fooled, Police and Prosecutorial bail applications entail a fair amount of paperwork afterhours.

The chances of a police officer initiating and processing a bail application on his/her own accord, are very slim and frankly, highly unlikely. Keep in mind you are completely isolated and detained in a cell. There is simply no way of engaging the Investigating Officer from the inside, without any assistance from the outside.

You need someone to fulfil this role. As legal practitioners, we have an intimate understanding of the ensuing procedures required to be followed in achieving this goal.

In order for an officer or prosecutor to consider a bail application in relation to transgressions of Lockdown regulations, they generally insist on the following:

  1. ID document or certified copy thereof;
  2. Proof of residence, whether it be a utility account or copy of your lease agreement or even an affidavit from a spouse / landlord to attest to where you live.

From the state’s perspective, they are required to simply confirm who you are and where you reside. Endeavour to keep copies of these documentation in your vehicle or have it readily available on your mobile.

Furthermore, you are required to make a disclosure of whether you have any previous convictions or pending charges against you. Full disclosure to your attorney in this respect is of paramount importance. Your Identity number will be run against the national database and your fingerprints verified at the Criminal Record Centre.

Posting of bail is entirely up to the official considering the application and may range between anything from R500 – R2000, depending on amongst others the charge(s). Upon being released on bail, you will be presented with a bail receipt as well as a date to appear in court.

With all this being said, it is important to know that each and every matter is dealt with on its own merits. There is no hard-and-fast rule when it comes to getting arrested or how to avoid it. In conclusion, it is obviously always better to try and stay out of trouble and avoid getting arrested, however, with a multitude of regulations doing the rounds, it isn’t impossible to find yourself on the wrong side of the law.

Acquaint yourself with the latest regulations and endeavour to stay apprised of developments as we move through the different Alert Levels.  We have an afterhours / emergency bail contact number, where professional and reliable assistance is available 24/7.

Should trouble find you, remember to remain silent and keep your attorney’s number on speed dial.