Sunday, 19 June 2016


Senior police officers no longer have powers to sign warrants of further detention for suspects to remain in custody following the alignment of the Criminal Procedure and Evidence Act with the new Constitution.

In the past, justices of peace (senior police officers of the rank of Superintendent and above) would authorise the detention of suspects in police cells for up to 96 hours without taking the suspect to court.

The recently published Criminal Procedure and Evidence Amendment Act now compels the police to release the suspect forthwith if they fail to take him to court within 48 hours of his arrest.
If the police sees it necessary to extend the stay of the suspect in custody, a formal application has to be made before a magistrate, who assesses the circumstances and either grants or throws away the request.

The old law was open to abuse by some spiteful investigators.
Some vindictive police officers would arrest people towards the weekend, to make sure that the suspects will not be released until Monday, as weekends were not included as court days in terms of the parent piece of legislation.

But the new law now considers Saturdays, Sundays and public holidays in the counting of the permissible 48 hours detention period.
In terms of the new law, police officers are compelled to release the suspects as soon as the 48 hours lapse.

The amended Section 32 (3) of the Act now reads:
“Any person who is arrested or detained -
a) For the purpose of bringing him or her before a court, or
b) For an alleged offence; and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on Sunday or a public holiday.”

Amendment to Section 33 of the Act now excludes police officers from authorising further detention of a suspect in police custody.

An application has to be made before a judge or magistrate for the extension of the detention period.
An additional Section 41 to the principal Act compels an arresting officer to inform the suspect of his or her reason for arrest, right to remain silent, consequences of remaining silent and those of not remaining silent.

The arrested person must also be allowed to contact their spouses or to be visited by their relatives. They are also entitled to religious counsellors of choice, legal practitioners and medical practitioners of choice if need arises.

Section 121 of the Act, which allowed the State to suspend the decision of a magistrate or judge to grant bail, was also amended.

It now gives a magistrate or judge discretionary power to suspend or confirm his bail decision.
The amended Section 121 (3) reads:

“Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor-General or public prosecutor under subsection (1), the decision to admit to bail remains in force unless, on the application of the Prosecutor-General or public prosecutor, the judge or magistrate is satisfied that there is reasonable possibility that the interests of justice may be defeated by the release of the accused on bail before the decision on appeal, in which event the judge or magistrate may suspend his or her decision to admit the person to bail and order the continued detention of the person for a specified period or until the appeal is determined, whichever is the shorter period.”

Several minor amendments were also made to the Act. herald


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