In November 2019, National Police Commissioner Sitole released a statement to the National Head of Crime Investigation, all relevant commissioners, the heads of office, commanders and every SAPS police officer. The statement made was in relation to unlawful arrests, which is general but largely applies to the arrest of cannabis consumers too.
Although there are many grey areas in the current cannabis related legislation, the police were initially told to use their discretion wisely when it comes to cannabis. While the final legislation is being drawn up as to how much can be grown, carried on a person and what constitutes as ‘private property’, officers were asked to be reasonable when dealing with cannabis consumers. However, many didn’t get the message and continued their arrests as if bud was still very much illegal.
Sitole Lays Down the Law
Sitole released his statement with some very clear guidelines on instructions relating to the arrest and detention of suspects. Arrest, by definition, is a restriction of an individual’s freedom of movement as well as impacting their dignity and privacy. Which is why this act is regulated by legislation. An arrest can only be made as long as it is in line with the relevant statutory provisions. Arrest should also only be seen as a last resort, as there are other methods that can be used to ensure the accused’s attendance at trial. Sitole stated that the decision to arrest should be entirely rational in relation to the circumstances.
It has only recently come to Sitole’s attention that various commanders and commissioners have been issuing unlawful arrest related instructions. In these instances, people are unlawfully arrested and detained, resulting in the SAPS owing millions in compensation. Maybe it’s the money concerns talking, but Sitole clearly stated that these actions “must stop with immediate effect”.
The related instructions include:
- Targets requiring members to make a certain number of arrests given in a time frame – this forces members to try reach their targets by making petty arrests with little discretion from the acting member.
- Instructions issued required members to detain suspects for a full period of 48 hours, thereafter taking them to court – this is done whether or not preliminary evidence suggests the suspect may be innocent or whether they have a fixed address where they can be easily located.
- Instructions stated arrests must be made for serious offences, even though circumstances may show the suspect acted in self defence or private defence.
- Members had been instructed to wait until the middle of the night, with reasons still unclear, to arrest suspects in their own homes.
This is all rather confusing and from an onlookers perspective, these instructions do make very little sense. Luckily for us, these instructions above have been “withdrawn with immediate effect”. So stoners across South Africa can rest a little easier knowing that rules such as these cannot be applied.
Less Wriggle Room for Unlawful SAPS Members
Sitole continued in his statement with another factor being brought to the attention of his office – that there has been a deliberate non-compliance with legislation, case law, National instructions and risk prevention guidelines. All in relation to carrying out unlawful arrests. It was stated by Sitole that any arrest without a warrant that is not specifically authorised by law will be considered unlawful.
When it comes to the discretion of SAPS members in carrying out arrests, there are guidelines for this too:
- There must be a likelihood that the arrested person, if released, will endanger the public.
- They will attempt to evade their trial.
- They may influence or intimidate witnesses or conceal/destroy evidence.
- Will undermine the functioning of the criminal justice system.
- Potentially disturb public peace.
Seeing as the arrest of a person does infringe their human rights, arrests must be limited to a minimum necessary time period. Other considerations must be taken before the arrest, such as whether the person can be released on a written warning, a written notice, released on bail or after the charge has been withdrawn via an agreement with the Public Prosecutor.
Sitole clearly reiterated that every member that this statement was issued towards should thoroughly study and apply the contents of the statement. As well as further ensuring that they are adhered to fully. Failure to follow these guidelines will be seen as a serious misconduct, and those who fail to comply will be held personally liable for the compensation that the SAPS may be ordered to pay. Other necessary disciplinary steps may be taken against members acting unlawfully in addition to the compensation.
Although these changes are given in relation to general arrests, this largely extends into the sphere of the cannabis community. With all these unknowns within the current cannabis legislation, these guidelines and the compensation factor may deter SAPS members from making unnecessary and unlawful arrests related to cannabis as they don’t really have a leg to stand on. For now, this may do, but patience is required as we eagerly wait for September 2020 for the clear cut legislation.
When in doubt, be sure to contact Fields of green for All – they may be able to help you out.