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CMP2601 important summary and notes for the exam.
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CMP2601 important summary and notes for the exam.
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1Study unit 6
The exercise of powers and the vindication of individual rights
The law protects the rights of individuals, however in the interest of society it necessitates the
limitation of these rights. Despite this, the law constantly strives towards achieving a balance
between society’s demands to bring offenders to justice, and on the other hand to uphold the
personality and property rights of the individual. To do this the law lays down strict rules to the
circumstances in which the limitation of these rights will be permissible to investigate crime and to
bring about offenders to justice.
S36 lays down certain requirements with which such limitation must comply before they could be
regarded as constitutional. According to the requirements the limitation –
1. must be contained in a law of general application, and
2. must be reasonable and justifiable in an open and democratic society based on human
dignity, freedom and equality.
The court has to take the following factors into consideration:
1. the nature of the right
2. the importance of the purpose of the limitation
3. the nature and extent of the limitation
4. the relation between the limitation and its purpose, and
5. less restrictive means to achieve the purpose.
The court will have to determine what purpose the limitation sets out to achieve, whether this
purpose is sufficiently important to justify a limitation of the right, whether the limitation will be
effective to achieve the purpose, and whether the purpose could be achieved in another less
restrictive manner.
Persons who act outside the limits lay down by these rules, act unlawfully.
RULE – it can be assumed that the search of persons or premises, the seizure of objects and the
arrest of persons will invariably be unlawful, unless such action complies with the rules mentioned
above or is justified by some ground of justification.
The consequences of such unlawful conduct are threefold:
1. a person unlawfully arrested or whose property was unlawfully searched or seized, may
institute a civil claim against such persons affecting the arrest, search or seizure.
2. in appropriate circumstances an unlawful search, seizure or arrest may even constitute
an offence
3. S35 (5) provides that evidence obtained in a manner that violates any right on the BoR,
must be excluded if the admissions of that evidence would render the trail unfair or
otherwise be detrimental to the admin of justice.
Requirements of reasonableness in the exercise of powers
Statutory provisions providing for the search and seizure of articles and arrest of persons refers to
‘reasonableness’ in which their powers ay be exercised.
S20 provides that certain articles may be seized if they are on reasonable grounds believed to be
articles of a certain nature.
S21 authorizes the issuing of search warrants where it appears from information on oath that
there are ‘reasonable grounds for believing’ that certain articles will be found at a certain place.
S22 authorizes a police official to conduct a search if he ‘on reasonable grounds believe’ that
certain circumstances exist.
S24 provides that a person in charge of occupying premises may conduct a search if he
‘reasonably suspects’ certain circumstances to exist.
S26 and 48 authorises the entry of premises where the person ‘reasonably suspects’ that a
certain state of affairs exist.
, 2
S41 – S43 empowers certain persons to arrest person ‘reasonably suspected’ of having
committed certain offences.
S41 authorises peace officers to require that certain persons provide certain persons to use such
force as ‘reasonably necessary’ to gain entry to premises.
Guidelines to determine reasonableness:
The requirement to determine reasonableness:
1. may be described as requirements that there be ‘reasonable grounds’ from which a
certain inference can be drawn.
2. a person will only be said to have ‘reasonable grounds’ to believe or suspect something
or that certain action is necessary of:
a. he really believed or suspects it
b. his belief or suspicion is based on certain grounds
c. in the circumstances and in view of the existence of those grounds, any
reasonable person would have held the same belief or suspicion.
3. the word grounds refers to facts. The belief or suspicion is reconcilable with available
facts. To determine the facts, a person has to make use of the 5 senses.
4. once the person determined the facts, he will evaluate them and make an inference from
those facts wrt the existence of facts. This means that he will consider the true facts and
will then decide whether the true facts are in his view sufficient to warrant a belief that the
other facts also exist.
5. once he has made the inference that the other facts exists, it can be said that the person
himself ‘believe’ or ‘suspects’ that such facts exists.
6. however the mere fact that a certain person believes or suspects that certain facts exists
is not sufficient to regard his belief as one based in ‘reasonable grounds’ as required by
the law.
7. a person can therefore be said to have ‘reasonable grounds’ to believe or suspects
something if he actually believes or suspects it, his belief or suspicion is based on facts
from which he has drawn an inference, and if any reasonable person would in view of
those facts, also have be drawn the same inference. This is a factual question that will
have to be answered with reference to the factual circumstances that are present in each
case.
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