Introduction. The Key Regulatory Framework. The Private Security Industry Regulation Act 56 of 2001. The Constitution of the Republic of South Africa, 1996. The South African Police Service Act 68 of 1995. The Criminal Procedure Act 51 of 1977. The basic principles of private defence (self-defence) Limitations on the powers of members attached to Neighbourhood Watches. Operational functions of members attached to Neighbourhood Watches. Conclusion. Questions and answers. 2
Any partnership established in a Police Station area that involves safety and security related matters, must be coordinated by members attached to the South African Police Service. A Neighbourhood Watch is a structure for community involvement in policing. Operational functions of members attached to a Neighbourhood Watch are community orientated activities supported by members attached to the South African Police Service with the aim to prevent crime. 3
Based on the assumption of partnership-policing and collective responsibilities to prevent crime, the following legislation and policies must be adhered to: The Private Security Industry Regulation Act 56 of 2001; The Constitution of the Republic of South Africa, 1996; The South African Police Service Act 68 of 1995; The Criminal Procedure Act 51 of 1977; The Merchandise Act 17 of 1941; The Heraldry Act 18 of 1962; The National Road Traffic Act 93 of 1996; The Firearms Control Act 60 of 2000; Common Law principles applicable to private defence; National Instruction 3/2013 regulating Sector Policing. 4
Private Security refers to those efforts by individuals and organisations to protect assets from loss, harm or reduction in value, due to criminality. The Private Security Industry Regulations Act, places an obligation on any person, natural or legal, to be registered with the Private Security Industry Regulatory Authority (PSIRA) as a Security Service Provider when they are rendering any Security Service for remuneration, reward, fee or benefit. A Neighbourhood Watch whereby local residents co-ordinate themselves to patrol and to protect their property, may approach PSIRA in writing and apply for exemption from the provisions of the Private Security Industry Regulation Act. 5
However, a Neighbourhood Watch duly established, recognised as a local Community Crime Prevention Structure, registered with the local Community Police Forum and who comply with the limitations as far as their powers are concerned, is not under an obligation to register with PSIRA. A local Community Crime Prevention Structure such as a Neighbourhood Watch, is not a recognised legal entity and does not have legal competence to institute or defend a lawsuit. Members of a Neighbourhood Watch act in their own capacity as individuals and will be liable in that capacity. 6
The Constitution of the Republic of South Africa, 1996 contains a Bill of Rights that, amongst others, promotes human dignity, equality, freedom and privacy. A distinct feature of the Constitution of the Republic of South Africa, 1996 is therefore the inclusion of a Bill of Rights that entrenches the fundamental rights of every person. Members attached to a Neighbourhood Watch must, as members of the community, respect the human rights of everyone at all times in their area of jurisdiction as set out in the Constitution of the Republic of South Africa, 1996. The area of jurisdiction of a Neighbourhood Watch is defined as a specific, predetermined and demarcated residential or industrial area within the boundaries of a Municipality, which may include the Central Business District of a particular Municipality. 7
Section 13 of the South African Police Service Act deals with the powers, duties and functions of members of the South African Police Service. Section 48 of the South African Police Service Act regulates the appointment of Reservists. A Reservist appointed under Section 48 of the South African Police Act, has the same powers as a member of the South African Police Service, such as the power to affect an arrest; to conduct search and seizure operations and to investigate offences. A Reservist appointed under Section 48 of the South African Police Service Act, receives, amongst others, training in firearms; legal aspects; basic Police functions and relevant and applicable legislation. 8
A member attached to a local Community Crime Prevention Structure, such as a Neighbourhood Watch, who is not an appointed Reservist, has limited powers. This means that an ordinary member of the Neighbourhood Watch who is not an appointed Reservist, may act only within the powers conferred on or assigned to a normal citizen by legislation and the common law. However, this may only be exercised subject to the Constitution and with due regard to the fundamental rights of every person. Although a citizen’s arrest is allowed in certain situations (limited arresting powers), members attached to the South African Police Service are still the only designated persons with legal power to perform law enforcement functions and duties. Members attached to a Neighbourhood Watch, do not have special policing powers. In carrying out a citizen’s arrest, the requirements as set out in the relevant sections of the Criminal Procedure Act 51 of 1977, must be complied with. 9
General remarks The Criminal Procedure Act contain strict conditions and provisions relating to the arrest of an individual, and failing to comply with these provisions, may result in an arrest being unlawful. If this is the case, the person who effected the arrest, may be guilty of a criminal offence which may render him or her liable. Powers of members attached to a Neighbourhood Watch As a general rule, the purpose of arrest must therefore be to bring the accused person before a Court so that he/she can be tried for the charge that has been brought against him/her. Arrest is one of the methods in which the accused person’s presence can be secured in Court for the purposes of a trial. 10
Section 42 of the Criminal Procedure Act sets out the instances in which a private person, such as a member of a Neighbourhood Watch, may arrest someone without a Warrant of Arrest. Section 42 of the Criminal Procedure Act stipulates as follows: (1) Any private person may, without warrant, arrest any person- (a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1; (b) whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence; (c) whom he is by any law authorized to arrest without warrant in respect of any offence specified in that law; (d) whom he sees engaged in an affray. (2) Any private person who may without warrant arrest any person under subsection (1) (a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. (3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant, arrest the person so found. 11
Section 47 of the Criminal Procedure Act sets out the instances in which a private person, such as a member of a Neighbourhood Watch, are under an obligation to assist a Police Official in arresting a suspected person and detaining that arrested person. Section 47 of the Criminal Procedure Act stipulates as as follows: (1) Every male inhabitant of the Republic of an age not below 16 and not exceeding 60 years shall, when called upon by any police official to do so, assist such police official- (a) in arresting any person; (b) in detaining any person so arrested. (2) Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. 12
Section 39 of the Criminal Procedure Act deals with the methods and effect of arrest, and stipulates as follows: (1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body. (2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested, hand him a copy of the warrant. (3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody. 13
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