The powers of a peace officer to arrest a suspect without a warrant, detain and use force : its constitutionality and consequences on the rights of a suspect

Abstract

Peace officers are empowered to arrest without a warrant, detain and use force on suspects. Suspects are guaranteed protection and promotion of their constitutional rights and any act that violates their constitutional rights will be unlawful. As a result of the unlawful actions of peace officers, suspects are subjected to poor conditions in police station holding cells. Consequent to the unlawful actions of peace officers, suspects are entitled to institute civil claims for damages. However, the disproportionate calculation of damages necessitates a uniform and mathematically correct method to calculate damages. Moreover, peace officers’ lack of knowledge on the legal aspects of an arrest without a warrant, detention, the use of force and the importance of the constitutional rights of suspects is the reason for the rate of unlawful actions and violations of constitutional rights. South Africa is bound by international law and regional law instruments. However, due compliance with the provisions of the relevant instruments which promote the human rights of suspects is questionable. Furthermore, the South African legal principles will be compared with foreign jurisdictions such as Canada and the United Kingdom in order to determine whether South Africa can emulate their best practices in educating peace officers on the relevant legal principles and protecting the constitutional rights of suspects. It is proposed that amendments to the existing legislation should be made in order to protect the constitutional rights of suspects and to limit the powers of peace officers so that the rate of unlawful actions are alleviated. In order to compensate for the violation of the constitutional rights of suspects, a mathematically accurate and uniform method should be implemented by all South African courts so that awards are proportionate, fair and reasonable. South Africa should make efforts to be more compliant with its obligations as provided for in international and regional instruments. Furthermore, South Africa should make efforts to emulate the practices and legal principles in Canada and the United Kingdom in order to enhance and develop the legal principles and practices in South Africa so that the police force can become professionalised and the constitutional rights of suspects are promoted and protected.