Ridding the streets of crime DO YOU HAVE A CRIME OR SECURITY QUESTION? DO YOU NEED ADVICE ON HOW TO KEEP YOUR FAMILY OR COMMUNITY SAFE? If you do, email Enforce Security’s experts atquestions@enforce.co.za

2015-12-01 06:00

AS crime in local communities become more blatant, and ordinary citizens are often called upon to take a stand and assist police or defend those around them, there is often confusion as to want people are legally permitted to do.

Even genuine good Samaritan acts sometimes stand the risk of back-firing when they are not carried out in accordance to the law, leading people to often withhold assistance in order to prevent any kind of liability.

However, if community members are aware of their rights, this will go a long way to ensuring they can come to the aid of those around them, and ultimately result in a more proactive society.

Nico Potgieter, head of investigations, responds to a commonly asked question about citizen’s arrests.

Q. What “power” do I, as an ordinary citizen, have if I witness someone committing a crime and I am unable to wait until police or armed response arrive? Can I make a citizen’s arrest? And if so, how do I do this?

A. The Criminal Procedure Act, section 42 of 1997, does allow for people to make citizens arrests. According to the act any private person may, without a warrant, arrest a suspect in the following situations:

1) If the private person witnesses the suspect committing or attempting to commit a crime, or if the private person “reasonably believes” that the suspect committed the offence.

2) If the private person “reasonably believes” that the suspect has committed an offence and is escaping from someone who has the authority to arrest him/her for the crime.

3) If the private person witnesses the suspect engaging in public fighting involving two or more people, and which disturbs the peace and causes fear.

Therefore, if you witness someone committing a crime in your presence then you can be assured that you are within your rights to effect a citizen’s arrest. You can restrain the suspect while you wait for police or armed response to arrive, but ensure you call them immediately.

Obviously you need to look out for your own safety, but if you are brave enough to apprehend someone who could possibly be armed, you are permitted by law to do so.

If the suspect becomes aggressive you are also able to take reasonable measures to restrain him/her or protect yourself.

Section 49 of the Criminal Procedure Act of 1997 allows for the use of force under the following circumstances:

1) If, while the private person attempts to arrest a suspect, the suspect resists or attempts to flee, despite it being clear that the person is trying to arrest him/her, and if it then becomes impossible to detain the suspect without the use of force, the arrestor may, in order to effect the arrest, use “reasonably necessary” force which is “proportional in the circumstances”, in order to arrest the suspect or prevent him or her from fleeing.

2) The use of “deadly force” – which the act defines as “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” – is permitted only if the suspect a) poses a threat of serious violence to the arrestor or any other person, or b) is suspected on “reasonable grounds” of having committed a crime involving the infliction or threat of infliction of serious bodily harm, and there is no other reasonably means of effecting the arrest, either at that moment, or at a later stage.

Although the act repeatedly specifies that a private person needs to “reasonably believe” that a crime is committed, it is advised that you are practically 100% certain that the crime was carried out or that it would have been carried out. You cannot arrest someone for something you merely think they may have done or think they may do.
You need so be so confident that the crime was committed, or would have been committed, that you are willing to stand up in court if need be and justify your actions based on your firm belief.

There obviously will be clear cut cases of wrongdoing, such as if you see a suspect mugging or attacking someone. In such cases there is no need to second guess yourself, and if you are able to apprehend the suspect, then you have the right to do so. - Supplied

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