ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™

(PART 2 OF 2)

Search & seizure laws in terms of the South African Police Service Act 68 of 1995 (PSA)

In terms of section 13(6) of the PSA a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized.

The apparent aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. The search may be conducted:

• at any place in South Africa within 10 kilometres, or any reasonable distance from any border between South Africa and any foreign state;
• in the territorial waters of South Africa;
• inside South Africa within 10 kilometres of or any reasonable distance from such territorial waters; or
• at any airport or within any reasonable distance from such an airport.

Section 13(7) of the PSA provides for searches in an area cordoned off for purposes of public order or safety.

The National or a Provincial Commissioner may, “where it is reasonable in the circumstances to restore public order or to ensure the safety of the public in a particular area”, authorize in writing that a particular area be cordoned off, specifying the period (which may not exceed 24 hours), the area and the object of the cordoning off.

On the strength of this authorization, a police official may, “where it is reasonably necessary” to achieve the objective of the authorization, conduct a search without a warrant (and presumably without reasonable grounds) of any person, premises, vehicle or receptacle or “any object of whatever nature” and seize any article that may afford evidence of the commission of an offence.

On the basis of such a broad purpose of the search, there may be substantial insufficient safeguards to achieve the necessary balance between the rights of citizens and law enforcement objectives.

The requirement of reasonable grounds for the search of individual premises may be abandoned, but the cordoning off of a particular area should be based on reasonable grounds.

Where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in the Constitution, section 13(8)(a) of the PSA provides that the National or Provincial Commissioner may authorize a police official in writing to set up:

• a roadblock(s) on any public road in a particular area; or
• a checkpoint(s) at any public place in a particular area.

Section 13(8)(c) empowers a police official who is so authorized, to set up such a roadblock or checkpoint, as the case may be.

In terms of section 13(8)(g)(i) a police official who sets up such a roadblock or checkpoint may:

• search without a warrant any person or vehicle that is stopped or any receptacle or object of whatever nature that is in the possession or in, on or attached to such a vehicle, and
• seize any article referred to in section 20 of the CPA, that is found in the possession of the person or in, on or attached to the receptacle or vehicle.

The police official must, on demand of any person whose rights are or have been affected by the search and seizure, exhibit a copy of the written authorization to hold the roadblock or checkpoint.

In Sithonga v Minister of Safety and Security 2008 (1) SACR 376 the court maintained that section 13(8) restricted the setting up of checkpoints in public places. However, the Act did not define what a public place was. It was further held that an authorization in terms of the Act must describe the place where the checkpoint was to be set up with sufficient particularity and thus not be vague and ambiguously framed.

Section 13(8)(d) of the PSA, provides that a police official may set up a roadblock for the purposes of seizing ‘certain articles’ without written authorization from the National or a Provincial Commissioner, if such a police official reasonably believes that:

• there is an object which is concerned in, or may afford evidence of, or is intended to be used in the commission of an offence listed in Schedule 1 of the CPA, and
• such an object is present in or is about to be transported in a motor vehicle in a particular area, and
• a search warrant will be issued to him or her under section 21(1)(a) of the CPA if he or she has reason to believe that the object will be transported in a specific vehicle and he or she has applied for a search warrant, and
• the delay that will be caused by obtaining the authorisation in terms of section 13(8)(a) (from the National or Provincial Commissioner) will defeat the purpose of the roadblock.

In such circumstances a roadblock can be set up by such a police official on any public road or roads in that area in order to determine if a vehicle is in fact carrying such an object.

The requirement that a Commissioner may exercise this power only where it is “reasonable in the circumstances” imposes an objective test to be applied in law. The purpose of the roadblock should be reasonable.

A specified objective for the roadblock should be determined, the objective of which can be assessed.

A general crime prevention roadblock grants police officers unstructured search powers which are open to abuse and arbitrary, corrupt action, while a limited objective, such as the search for weapons or drugs, should result in focused and confined police actions which respect the rule of law and constitutional rights of citizens.

The legalization of cannabis use and possession in South Africa will undoubtedly bring all the above search and seizure laws into play.

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(PART 1 OF 2)

Search and seizure in terms of the Criminal Procedure Act 51 of 1977 (CPA)

In South African law the terms ‘search’ and ‘seizure’ are not clearly defined.

Undoubtedly, the legalization of cannabis use and possession in South Africa will test the current search and seizure laws to the fullest extent.

The consideration of what is a ‘search’ is dealt with while understanding that there is an inevitable physical intrusion in regard to a person or property which is necessary to establish a search. This causes a clash between criminal law principles and the Constitutionally guaranteed rights of every citizen.

It is important to understand that where a word is not defined in a particular piece of legislation that word then bears its ordinary meaning in law and hence in court proceedings.

Various sections of the CPA deal with search and seizures, we touch on a few in this article. It is critical to understand that significant legal principles and case law decisions qualify and/or delineate the black-letter of these sections of the CPA.

Search of arrested persons

Section 23 of the CPA provides for the search of arrested persons and the seizure of articles pursuant to the arrest, but clearly not for any other purpose, reason or event.

On the arrest of any person, the person effecting the arrest may:

1. if s/he is a peace officer, search the person arrested and seize any article referred to in section 20, which is found in the possession of or in the custody or under the control of the person arrested, and where such a peace officer is not a police official, s/he shall forthwith deliver any such article to a police official; or
2. if s/he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.

In South African law a peace officer may without a warrant effect a search of an arrested person and seize any article found in the possession, custody or control, of the arrested person, which may afford evidence of the commission of an offence of which such person is suspected.

Furthermore, the peace officer may place in safe custody (which implies that a documented chain of evidence record be kept) any object found on the person of the arrested person, which the arrested person may use to cause bodily injury to the arrested person or other persons.

Search of premises (does not necessarily include vehicles, animals, out houses, tents, barns or other separate structures on the land or premises)

Section 24 of the CPA provides for the search of premises.

Any person who is lawfully in charge or occupation of any land and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on any premises upon that land, or that any article has been placed on such premises or is in the custody or possession of any person upon such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises with the purpose of searching such premises and any such person thereon, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.

State security – Power of the police to enter premises

Section 25 of the CPA empowers a police official to enter premises in connection with state security. This must be treated with caution and circumspection.

If it appears to a magistrate on oath that there are reasonable grounds for believing that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which has been held or is to be held in or upon any premises within his area of jurisdiction, or that an offence has been or is likely to be committed or that preparations for the commission of any offence are being made or are likely to be made upon any premises within his area of jurisdiction, he may issue a warrant authorizing a police official to enter the premises at any reasonable time for the purposes of carrying out such investigations and taking such steps as such a police official may consider necessary for the preservation of law and order or the prevention of crime.

Entering of premises for purposes of obtaining evidence

Section 26 of the CPA provides for the entering of premises by a police official for the purposes of obtaining evidence.

If a police official who is investigating an offence or alleged offence reasonably suspects that a person who may furnish information with reference to such an offence is on any premises, such a police official may enter such premises without a warrant for the purposes of interrogating such a person and obtaining a statement from him, provided that such a police official shall not enter any private dwelling without the consent of the occupier thereof.

Search and other affected rights

Since a search may also infringe upon, inter alia, the rights to dignity and to bodily security the search must be conducted in harmony with and with respect for those rights at all times. In terms of section 29 of the CPA the search of a person must be conducted with strict regard to decency and order.

Seizure

In Ntoyakhe v Minister of Safety and Security 2000 (1) SA 257 the court held that the word ‘seize’ encompasses not only the act of taking possession of an article, but also the subsequent detention thereof (but not indefinite detention thereof), failing which the right to seize would be rendered worthless.

Seizure under or in terms of a search warrant

It is critical to know that in terms of section 21 of the CPA, unless the circumstances set out in section 22, 24 and 25 of the CPA exist, an article may be seized only in terms of a search warrant.

If it appears to a magistrate or justice of the peace that there are grounds for believing that such an article is in the possession or under the control of a person or upon any premises, and such information is provided to him or her under oath, a search warrant may be issued. In order for the search to be lawful, the premises to be searched must be clearly and properly identified in the warrant.

A search warrant must be executed during daylight hours unless the police official is specifically authorized therein to execute it at night.

Objective grounds for the search must exist.

The protection against an unjustified interferences with citizens’ right to privacy and other fundamental rights include prior judicial authorization and an objective standard, that is whether there are reasonable grounds (also known as reasonable suspicion or reasonable belief) to believe or suspect based on information obtained under oath that an offence has been or is likely to be committed, that the articles sought or seized may provide evidence of the commission of the offence and that the articles are likely to be on the premises to be searched.^[1]

The essence of reasonable grounds is that such grounds or beliefs must be objective and reviewable by a court of law. Reasonable suspicion can be obtained through the utilization of the human senses of a police official in the course of duty.

A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20:

1. if the person concerned consents to the search for and seizure of the article in question;
2. if the police official on reasonable grounds believes that a search warrant will be issued to him under section 21 of the CPA and that the delay in obtaining such a warrant would defeat the object of the search.

Undoubtedly, the legalization of cannabis use and possession in South Africa will test the above laws to the fullest extent.

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 [1]       In Rajah v Chairperson: North West Gambling Board 2006 3 All SA 172 (T) 394 the high court held that for a search and seizure to be valid in terms of s 21 of the Criminal Procedure Act, “a warrant may only be issued by a magistrate or judicial officer where it appears from information on oath that there are reasonable grounds for believing that an article is in possession or under the control of or at a premises within the area of jurisdiction of that particular officer”… further that the high court had a wide discretion to interfere with the magistrate’s decision if the court a quo had not applied its mind to the matter.”

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Following on from the Constitutional Court decision in the case of Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16, and the passing of the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill (B22 of 2019), during 2019, the Criminal Procedure Act of 1977 and the Prescription Act of 1969 are amended.

On 23 December 2020, the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020 came into law in South Africa thus removing the time bars or statutory time limitations for the prosecution of certain sexual offences.

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What is the meaning of “Fruit of the Poisonous Tree” in Criminal Proceedings?

Why is Section 35(5) a fundamental constitutional right in criminal law?  

The “fruit of the poisonous tree” doctrine prohibits the State from admitting certain evidence into a criminal case after it has been tainted by a primary illegality. The doctrine is intended to prevent unlawfully acquired evidence from negatively impacting an accused person in a criminal proceeding.

It is a fundamental doctrine in any constitutional democracy as it essentially advocates that where an Accused’s right(s) has been infringed by the State such infringement(s) cannot be used by the State against the accused to prove the Accused’s guilt. Allowing this doctrine to be diluted or not to be upheld in every criminal proceeding, amounts to a mockery of the criminal law and indeed the rule of law which underpins any constitutional democracy.

Background

The “fruit of the poisonous tree” doctrine is an extension of the exclusionary rule found in constitutional democracies around the world.

In South African law, the exclusionary rule is found in section 35(5) of the Bill of Rights in the South African Constitution. Section 35(5) provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”.

Section 35(5) is augmented by sections 38 and 39 of the Constitution which provide that:

“38. Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

1. anyone acting in their own interest;
2. anyone acting on behalf of another person who cannot act in their own name;
3. anyone acting as a member of, or in the interest of, a group or class of persons;
4. anyone acting in the public interest; and
5. an association acting in the interest of its members.
6. Interpretation of Bill of Rights

When interpreting the Bill of Rights, a court, tribunal or forum ¬

1. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
2. must consider international law; and
3. may consider foreign law.

When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”

Before the exclusionary rule came into being in South Africa, there was no particular concern for the way in which evidence was obtained by the South African government and it’s agents prior to freedom being obtained in 1994. As a general rule, ‘relevant evidence’ was admissible. This approach was followed because South African courts were required to refer to the English common law in force on 30 May 1961 with regard to the admissibility of unlawfully obtained evidence.

It is submitted that the undoubted influence of foreign law decisions in this regard will be increasingly important to South African courts when consideration of the exclusionary rule occurs. This is because the foreign law decisions have immense legal authority underpinning same due to the length of time of the foreign constitutional democracies and their case law authorities and the various legal challenges considered over the decades in countries such as the USA, UK, Canada, Germany, France and other constitutional democracies. This is not only in regard to crimes such as drug possession, drug use, drug trafficking, organised crime and racketeering but also in regard to white-collar crimes, and various common law crimes such as murder, assault, arson, manslaughter or culpable homicide, fraud, theft and armed robbery.

The exclusionary rule provides that evidence that is illegally obtained should be excluded from admission in a criminal trial. The fruit of the poisonous tree takes the assessment one step further by providing for the exclusion of evidence that stemmed from the illegal act, which is known as the poisonous tree.

For example, if there is an illegal interrogation by the police that leads to physical evidence, the exclusionary rule prohibits the introduction of the interrogation itself in the criminal proceedings and the trial of the accused. Furthermore, the physical evidence (the fruit) obtained by the illegal interrogation (the poisonous tree) is excluded because it is the yield or fruit of the illegal process.

Undoubtedly, the legalization of cannabis use and possession of same in South Africa will obviously bring the exclusionary rule and the fruit of the poisonous tree doctrine to the fore in criminal legal proceedings.

Similarly, if the police or law enforcement officer(s) coerced an admission or confession in which the accused revealed where a weapon or instrument of a crime was located and law enforcement officer(s) obtained a search warrant based on this admission or confession, the weapon or instrument will be inadmissible in evidence because it is the fruit of the poisonous tree. Likewise, the admission or confession will be inadmissible.

The purpose behind this “fruit of the poisonous tree” doctrine is to deter police and/or State misconduct in its actions using State power against it’s citizens. It is an indispensable principle of criminal law in all constitutional democracies.

Metaphorically, the original unlawful evidence obtained is considered to be the poisonous tree, and any evidence that stems from or flows from this tree is similarly tainted by the poison.

This doctrine is applied in many factual scenarios pertaining to police or law enforcement conduct, not only in regard to search and seizures but also in regard to inter alia, the planting of evidence at crime scenes, drug busts, road traffic stops, white-collar crimes.

Application of the exclusionary rule

The fruit of the poisonous tree doctrine applies to all evidence illegally obtained whether it is physical evidence, oral evidence or testimony in court or on declaration or affidavit, real evidence or documentary evidence. It also applies to evidence acquired directly from the illegal conduct or indirectly from it with certain exceptions noted below.

Invariably, the most common reason why this doctrine is applied is through a defence application on behalf of an Accused to exclude evidence, that would adversely affect the Accused’s case, which derived from an unlawful law enforcement search, seizure or illegal police conduct.

Legal Standards in USA and South Africa

The United States Supreme Court has decided a number of cases related to this doctrine. In the case of United States v. Rey, it was stated that for the exclusion of evidence to be ordered, the police misconduct must have been “sufficiently deliberate” that future similar conduct would be deterred due to the exclusion and that such future deterrence would be worth the cost to the justice system.

The doctrine is designed to deter police misconduct that is reckless, deliberate or grossly negligent. However, it can also be used to correct widespread State systemic negligence. The doctrine may not prevent all types of evidence from being admitted if it would only cause marginal deterrence.

In South African law, relevant cases which have considered and adjudicated upon the exclusionary rule directly and indirectly in terms of section 35(5) of the Bill of Rights  provide interesting insight. (rf the approach followed by Chaskalson P in S v Makwanyane 1995 2 SACR 1 (CC) dealing with the constitutionality of the death penalty. See also S v Melani 1996 2 BCLR 174 (EC) 352, where Froneman J concluded that: “It is true that courts should hold themselves accountable to the public, but that does not mean that they should seek public popularity”; Pillay v S 2004 2 BCLR 158 (SCA); Thint (Pty) Ltd v National Director of Public Prosecutions;  Zuma v National Director of Public Prosecutions 2008 ZACC 13; S v Matlou 2010 2 SACR 342 (SCA). See also:

S v Nell 2009 2 SACR 37 (C); S v Matlou 2010 2 SACR 342 (SCA); S v Dos Santos 2010 2 SACR 382 (SCA); S v Lachman 2010 2 SACR 52 (SCA); S v Mkhize 2011 1 SACR 554 (KZD). For an analogous approach by the Supreme Court of Appeal, see S v Matlou 2010 2 SACR 342 (SCA) para 31. The accused in Matlou was assaulted by the police with the aim of obtaining self-incriminating evidence against him. Additionally, his right to legal representation and his right to remain silent were infringed. After a discoverability analysis the court held that the admission of the disputed evidence would not only render his trial unfair, but its admission would also be detrimental to the administration of justice. As a result, real evidence, essential for convictions on serious charges (and which linked the accused to such charges) was excluded. Compare S v Lachman 2010 2 SACR 52 (SCA), where a discoverability analysis resulted in the admission of the disputed evidence.
See also:

S v Basson 2007 1 SACR 566 (CC) where the Constitutional Court dismissed an application based on the contention that the issue of the admissibility of bail proceedings should not have been heard before the accused had been called upon to plead.

However, compare the approach followed in S v Mkhize 2011 1 SACR 554 (KZD) para 51, where Govindasamy AJ applied an approach based on the “automatic” exclusion of unconstitutionally obtained evidence when he reasoned as follows: “I am in agreement with the learned Patel J in Viljoen‘s case: there is no discretion afforded to a judicial officer when he/she is confronted with a situation where evidence is obtained unconstitutionally. To admit such evidence, contaminated as it is, will be a violation of the accused’s rights, and, above all, will be prejudicial to the administration of justice.”)

Exceptions

1. The Independent Source Doctrine

Even if evidence was originally discovered by an unlawful search, the evidence can still be admitted in some cases. This can occur when the same evidence is obtained in an independent manner that was not tainted by the primary illegality.

The court assesses whether the evidence that is at stake was discovered by exploitation of the primary and initial illegality or if it was uncovered by independent means that are sufficiently purged of the primary illegality. Because evidence that is acquired through an independent source is not fruit of the poisonous tree, it is not required to be excluded.

For example, in one case, an officer entered a home illegally without a valid search warrant. An application for a search warrant was later obtained that was based on factual information that did not rely on the officer’s illegal entry. Evidence was seized from the home. The court ruled that the evidence did not need to be excluded, despite the illegal search.

The independent source doctrine is not affected by the public policy concerns of the fruit of the poisonous tree doctrine. For example, courts are not concerned with deterring future misconduct when the evidence is independently acquired without relation to the evidence being tainted. Instead, this doctrine allows police to return to the same position as they would have been had there never been any illegal taint.

2. Other Exceptions 

One more exception to the fruit of the poisonous tree doctrine is inevitable discovery.

This exception does not require the exclusion of the illegally-obtained evidence if it was inevitable that it would have eventually been discovered by law enforcement. This means that the police would have found the evidence even without the illegal search been conducted illegally or unlawfully.

A further exception to the exclusionary rule itself is good faith. If the court finds that a police or law enforcement officer believed in good faith, that a search was legal, the court may not exclude the evidence in the criminal trial. There are guiding principles in this regard.

As aforementioned, the legalization of cannabis use and possession of same in South Africa will obviously bring the section 35(5) of the Bill of Rights, the exclusionary rule and the fruit of the poisonous tree doctrine to the fore in criminal legal proceedings. It is inevitable.

Put another way, either evidence is legally obtained or it is not. Fostering of grey areas in the law cannot be of any use to the proper and just administration of justice in the public interest.

It is critical to note and accept that the constitutional rights entrenched in the Bill of Rights are rights which many people have bled and died for over the years of human rights abuses and atrocities committed in South Africa.

Consequently, the rights entrenched in the Bill of Rights should always be upheld to be absolute, failing which the Bill of Rights is not worth the paper it is written on.

This is equally applicable to violations of these rights and the awarding of damages in regard to same where in civil suits the awarding of substantially significant constitutional damages shall clearly spell out to all and sundry the importance of these rights.

Has the time not come to implement punitive damages in South African law to give effect to the rights which so many people have bled and died for?

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Important amendments to the Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (as amended) were signed into law in August 2019.

These amendments to the AARTO Act (following on from AARTO Amendment Bill (B38B of 2015) will affect all motorists very significantly.

The AARTO Amendment Act 4 of 2019 will come into law shortly bringing into law the much derised ‘Demerit points system’. The systems should be implemented full by June 2020.

For motorists this would not be the first time that you would have heard about the Demerit system. In fact the government tried unsuccessfully to implement the Demerit system a few times since as far back as 1998.

Useful Summary for motorists:

How will the 12-Point System Work?

1. Motorists start with zero points.
2. Points are allocated according to penalties for offence/s committed and the severity thereof, similar to the laws of other countries utilizing a similar demerits system.
3. Points are allocated on the date of the infringement.
4. Infringements by drivers of transportation industries vehicles are not allocated directly on the drivers’ own licences but instead points are allocated to their companies operators’ permits.
5. If you incur the maximum threshold of 12 points, your licence (and/or operator card) is suspended with effect from 32 days thereafter from the date upon which the twelfth point is allocated.
6. The suspension period is calculated in months equal to the number of points exceeding 12, multiplied by three (or such number as may be prescribed by the Minister of Transport). The driver/operator may apply for the return of the licence on expiry of the suspension (disqualification) period.

7. A driver/operator who is disqualified for the third time will permanently lose the license/operator card and will have to re-apply for testing and issuing thereof (as if a first-time license/operator applicant) after expiry of the disqualification period.
8. Demerit points will be reduced for all persons/operators at a rate on one point per every 3 months, except in the case where the evidence points to the fact that the process has been delayed to obtain a reduction in points.
9. The issuing of points (ie. demerits) will be added depending on the type of offence/s and the severity thereof, as indicated below:-

The AARTO amendment act 4 of 2019 introduces, inter alia, the following significant changes to the law:

1. a) Traffic Demerit Points System in terms of which the following shall apply:
2. the removal of the courts from the AARTO process which is to be replaced by a dedicated Road Traffic Infringement Authority (RTIA);
3. the delivery (ie. legal service) of traffic fines and notices by electronic means using sms and/or whats app messaging is permitted;
4. the RTIA will have the power to administer rehabilitation programmes for repeat offenders, to be known as habitual offenders.
5. traffic infringements will be handled differently, i.e. transgressors can make written representations to the RTIA, should this be rejected there is an appeal and review process available to the Tribunal, with a further review to the Magistrates Courts.
6. motorists can challenge infringements within 30 days;
7. If a motorist collects more than 12 points, it will result in the suspension of the driving licence and three suspensions will result in the cancellation of the licence, and further possible sanctions such as the renewal or re-issuing of a drivers license or vehicle licence disc will be blocked.

Will It Work?

Similar demerits systems have been successful in many parts of Europe and Australasia and continue to be implemented worldwide in an effort by countries to curb road traffic infringements, contraventions, insurance claims and the escalation of insurance premiums for motorists. In addition, road traffic crimes, including culpable homicides, road accidents, unlawful deaths of breadwinners are believed to be capable of being reduced as a consequence of a demerits systems.

Furthermore, road rage crime is also a scourge on our roads which is growing at an alarming rate and which the authorities must eliminate with a zero tolerance and imprisonment policy in the future.

The abuse of road traffic rules and regulations by the drivers of company delivery vehicles such as:

• delivery buses;
• delivery trucks (ie. petrol trucks, furniture removal trucks, municipal refuse trucks); and
• courier delivery vehicles

needs to be particularly monitored and penalized heavily.

Road carnage caused by the negligent and sometimes gross negligent driving of these vehicles has existed for far too long on our neighbourhood and national roads.

Vicarious liability for these road carnage accidents is not the answer as invariably the true culprits are not jailed for their gross negligence and in many instances the actions of these drivers can actually amount to intentional forms of road carnage on the basis of dolus eventualis.

One aspect which needs to be considered is the independent and electronically controlled speeds of these delivery vehicles by use of so-called Truck Governors which make us of satellite control of the speed of buses trucks and other heavy duty vehicles travelling on suburban and national roads. In addition, in many countries these vehicles are not permitted to travel on these roads during peak hours and indeed only during designated times at night with clearly visible illumination not only on the vehicle itself but also on the carriages and trailers.

Another aspect which needs to be considered in the traffic infringements of JMPD and other police department officers acting outside of the scope of their employment in causing accidents, fatalities and other forms of road carnage.

How exactly will these perpetrators be “demerited”?

MANY QUESTIONS REMAIN???

Many motorists may still harbour mistrust in the traffic police and continue to question the certainty of their infringements and/or the procedures to be followed according to the AARTO Amendment Act.

Time will tell as to exactly how the amendments will impact the existing problems on the roads and precisely how the procedural aspects pertaining to infringements will be handled by the RTIA.

www.slamatlaw.co.za

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“Revenge Porn”, the new Social Media Pandemic?

Upcoming law in South Africa.

Law reform in the USA and UK has in recent years criminalized the activity known as “revenge porn” which involves the posting of intimate sexual images and/or videos of an ex-partner without their consent particularly when a relationship has ended. This typically happens when a jilted lover wants to get back at the other party when the relationship ends acrimoniously.

The recent US and UK laws apply also to the distribution of sexual imagery of someone on the web without their consent and applies to all forms of social mediums, including social media apps and online platforms whether on conventional PCs or on mobiles.

Further laws in the US, permit the US government to collect the content of emails, texts and other electronic communications without a warrant to aid in the prosecution of “revenge porn” criminal cases.

In the UK, the law defines “revenge porn” as “…photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”.

Case commentary from the UK shows that one person, Hazel Higgleton, a 25-year-old body piercer from Chelmsford, told that her ex-boyfriend posted a sex tape of them together on various pornographic sites last year. She said she had been “pressured” into recording the tape.

However, there is some dissent about the new laws as some legal groups fear it will lead to thousands of young people being criminalized. There are concerns that the sheer volume of complaints will be overwhelming and precisely how the law courts will interpret and apply the new laws.

SOUTH AFRICA – Upcoming Law Reform

In South Africa, there have been a number of new laws enacted by Parliament over the past years in response to law reform abroad, typically then process takes about 5-10 years however, recently law reform appears to be occurring more rapidly as the SA government appears to want to keep up with international law reform trends.

Another example of this action, is the upcoming amendments to the Films and Publications Act of 1996, which seeks to criminalize the activity known as “revenge porn” with severe sanctions for contravention of the Act.

In keeping with the recent legislative enactments to promote gender equality in South Africa, the intended amendments appear to be in furtherance of government’s trend to level the gender playing field.

The international literature on the subject of ‘revenge porn’ suggests that the affected persons are normally the women in relationship which is the subject of a “revenge porn” criminal case. These women are coming out of a relationship or break-up and find that their partner has released a photo or video publicly on the web and which was sent privately during the relationship.

The content is of course, a picture or video clip of the woman in a provocative light, which is sent in confidence to their partner in knowing or thinking that the content would remain between only them.

But, later the jilted partner sends the video to her your friends, family and even gone so far as to upload the content of a social media platform, reaching thousands of people. The side affects of this traumatising situation can lead to serious issues down the road to the woman’s dignity, self-confidence and mental well-being.

This “revenge porn” problem is dealt with in the Films and Publications Amendment Bill was signed off by the President. Two of the essential features of the Amendment Act are the following:

Films and Publications Amendment Act 11 of 2019

Prohibitions, offences and penalties on distribution of private sexual photographs and films

24E. (1) Any person who knowingly distributes private sexual photographs and films in any medium including the internet and social media, without prior consent of the individual or individuals in the said sexual photographs and films with the intention to cause the said individual harm shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

(2) Any person who knowingly distributes private sexual photographs and films in any medium including through the internet, without prior consent of the individual or individuals and where the individual or individuals in the photographs or films is identified or identifiable in the said photographs and films, shall be guilty of an offence and liable upon conviction, to a fine not exceeding R300 000 or to imprisonment for a period not exceeding four years or to both a fine and such imprisonment.

Special feature – Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn.

Peer-Reviewed Journal: Feminist Criminology 2017, Vol. 12(1) 22–42

Background

Non-consensual pornography is a relatively new phenomenon that has grown substantially in the past few years and involves uploading nude or semi-nude images/videos of a person online without their consent.

Some nonconsensual pornography website administrators use computer hacking to obtain nude photos from women, and then extort them by pressuring them to pay a fee to have their photos removed (Laird, 2013). The public and the media have commonly referred to nonconsensual pornography as “revenge porn.”

Revenge porn occurs when a person uploads nude/semi-nude photos of someone online, often as revenge after a relationship has ended. Hence, revenge porn is included under the umbrella of nonconsensual pornography, but nonconsensual pornography does not always include revenge porn.

Several nonconsensual pornography websites encourage users to submit nude photos of their ex-partner(s) for revenge. These websites often include forums that allow others to leave derogatory or salacious comments about the women in the photos.

The first revenge porn website—isanyoneup.com—was created in 2010 by Hunter Moore (Stroud, 2014). In a 3-month period in 2011, the website received 10,000 photo submissions. Moore gained a significant profit from advertising on the website, sometimes bringing in US$13,000 per month in revenue.

The website was eventually shut down after Moore sold the website to an anti-bullying organization for an undisclosed amount, citing “legal hassles” and underage pornography submissions as reasons for selling the website (Visser, 2012). However, several other nonconsensual pornography websites have since been created and have gained a large following (Stroud, 2014).

The impact of nonconsensual pornography includes public shame and humiliation, an inability to find new romantic partners, mental health effects such as depression and anxiety, job loss or problems securing new employment, and offline harassment and stalking (Citron & Franks, 2014).

Citron and Franks (2014) reported on a nonrandom sample of 1,244 nonconsensual pornography survivors, and found that more than 50% of survivors’ full names and links to social media profiles accompanied the naked photos, and that 20% of survivors’ email addresses and phone numbers were posted with their photos. Once a photo is posted online, it is challenging to completely remove from the internet, which means the harm is continuous and long-lasting (Cecil, 2014).

In an attempt to reduce the emotional impacts of nonconsensual pornography, some women delete their online social media accounts. Removing all social media profiles often separates women from positive social connections with friends and family, as social media is a commonplace, contemporary way to stay connected with loved ones. Apart from the internet, in “real life,” some women completely alter their lives and routines to minimize the impact of nonconsensual pornography (Cecil, 2014).

Nonconsensual pornography did not exist on such a broad scale even 5 years ago. Smartphones, digital cameras, and computers have revolutionized photography – individuals frequently use smartphones for photography, and upload photos online in the privacy of their own homes.

A richer discussion of nonconsensual pornography has been present in the media recently, particularly through social media platforms such as Facebook and Twitter. Social media has contributed to a vocal feminist backlash against female oppression, as social media allows thoughts to be broadcasted to large audiences (Rentschler, 2014).

Even more recently, a widespread “celebrity photo leak” involving naked photos of many A-list celebrities, including Jennifer Lawrence and Kate Upton, sparked an even deeper discussion in the media regarding nonconsensual pornography, female oppression, and consent.

A Google search of “celebrity photo leak 2014” provides more than 2 million results with many online news articles, and even an entire Wikipedia page concerning how a long list of female celebrities experienced non-consensual pornography on a single day, August 31, 2014.

Despite recent media attention to nonconsensual pornography, relatively few academic studies focus on the topic. The few published academic articles regarding nonconsensual pornography concentrate mainly on its legal aspects and legal theories about these cases.

As of April 2016, no published peer-reviewed studies focus exclusively on the experiences of nonconsensual pornography survivors, the toll it takes on their mental health, and how this type of victimization is strikingly similar to sexual assault. The present study is designed to address this gap in the literature by providing a detailed analysis of the mental health issues and coping mechanisms of revenge porn survivors, and the similarities between revenge porn and other forms of sexual victimization.

Methods

The purpose of this qualitative, interview-based study was to understand the experiences of revenge porn survivors and how revenge porn affected their mental health. In-depth semi-structured interviews were conducted with 18 female revenge porn survivors.

Inclusion criteria for this study had two components: (a) Participants had to be 19 years of age or older, and (b) participants had to self-identify as victims or survivors of revenge porn. Some participants referred to themselves solely as “survivors,” some referred to themselves solely as “victims,” and some participants referred to themselves as both “survivors” and “victims” at different points throughout the interviews.

For the purposes of this article, participants will be referred to as “survivors” of revenge porn, which implies a more empowering label rather than giving “victim” labels that imply less agency. Allowing self-identification for inclusion criteria resulted in a broad range of revenge porn cases, ranging from survivors who experienced a widespread web release of naked photos, to photos being shared on a smaller scale (such as with a social circle), and to being threatened or blackmailed with naked photos.

Although there was a broad range of revenge porn cases among participants, common themes and patterns were found.

Results

The findings of this study were organized under two main themes: (a) Mental Health and (b) Coping Mechanisms. Under Mental Health, there are three sub-themes that focus on participants’ mental health issues after victimization: (a) trust issues after revenge porn; (b) PTSD, anxiety, and depression; and (c) self-esteem, confidence, and loss of control. Nearly all participants discussed a general loss of trust in others after being victimized by revenge porn. Many went from being very trusting to rarely trusting anyone after they were betrayed by someone they loved and cared about.

Along with the loss of trust, many participants experienced more severe and disruptive mental health effects, often being given official medical diagnoses of PTSD, anxiety, and depression. Many participants also noticed a change in their self-esteem and confidence after they were victimized. Part of the reason that revenge porn had such a negative effect on participants’ self-esteem and confidence was the loss of control they experienced. The loss of control over one’s body was a particularly violating aspect of revenge porn, similar to sexual assault. Frazier (2003) found that when sexual assault survivors perceived a loss of control, they experienced more distress and trauma. Overall, participants experienced many disruptive mental health issues after victimization that affected their daily lives.

Under Coping Mechanisms, there are two sub-themes that focus on participants’ coping mechanisms to their victimization: (a) negative coping mechanisms and (b) positive coping mechanisms. Participants generally engaged in negative coping mechanisms, such as denial and self-medicating, closer to when they were victimized, and turned to positive coping mechanisms, such as seeking counseling, as time passed. Negative coping mechanisms ranged in behaviors, such as avoidance, denial, excessive drinking of alcohol, and obsessing, over one’s victimization.

In terms of avoidance/denial, participants attempted to avoid thinking about revenge porn and pretended they had not been victimized. Participants also engaged in various positive coping mechanisms to deal with their emotions. The most common were seeing a counselor or therapist, speaking out and helping others, relying on support systems such as family or friends, and focusing on moving on. Counseling was helpful for most participants. Support systems played a huge role in participants’ lives and helped them feel safe after they were victimized. Participants expressed gratitude for their friends and family being there to support and help them in a time of need.

Every woman in this study experienced a horrendous invasion of sexual privacy and personal space, and in most cases at the hands of someone they loved and trusted. This study provided an analysis of the experiences of these survivors and how revenge porn forever changed and affected them. The negative mental health consequences of revenge porn for female survivors are similar in nature to the negative mental health outcomes that rape survivors’ experience.

Rape survivors frequently experience PTSD, anxiety, and depression, all of which participants in this study experienced. In terms of coping mechanisms, participants engaged in avoidance/denial and self-medication in attempt to avoid feelings of despair and distress regarding their victimization. These coping mechanisms are commonly found among rape survivors as well (Boeschen et al., 2001; Campbell, 2008). The characteristics of revenge porn are similar to other sexual crimes (Bloom, 2014).

As mentioned above, participants in the present study experienced a variety of negative mental health effects that sexual assault survivors also experience (Boeschen et al., 2001; Campbell, 2008; Littleton & Henderson, 2009; Monroe et al., 2005). Furthermore, sexual assault survivors report that the loss of control over their bodies and their own sexual agency contributes to their feelings of stress, anxiety, and distress (Frazier, 2003). The loss of control participants in the present study experienced contributed to feelings of anxiety and despair and was a major facet of why revenge porn was so violating.

Overall, findings of this study reveal striking similarities between the mental health effects of sexual assault and revenge porn for survivors, suggesting that revenge porn should indeed be classified as a sexual offense as Bloom (2014) recommended. Therefore, the two primary conclusions to take away from this study include the following: (a) The mental health effects of revenge porn and sexual victimization are similar among victims; and (b) because of these striking similarities, revenge porn should be classified as a sexual offense, treatment strategies for survivors of revenge porn should be similar to effective treatment strategies used for survivors of other forms of sexual victimization, and legislators should consider the similarities between revenge porn and sexual crimes when making legal changes to the status of revenge porn and drafting legislation.

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Criminal Law – Extract of scheduled Criminal law offences in South Africa         

NO MORE TATTOED TEARDROPS™ 

BAILME DEFENDME SAVEME™

 Schedule 1 offences include:

• Arson,
• Fraud,
• Forgery,
• Treason,
• Sedition
• Public violence,
• Murder,
• Culpable homicide,
• Robbery,
• Kidnapping,
• Child stealing,
• Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

Schedule 5 offences include murder, attempted murder, indecent assault, rape, drug-related crimes, especially where the drugs are found to be worth R50 000 or more, corruption, extortion, fraud, forgery or theft to the value of R500 000, the illegal dealing in or smuggling of firearms.

Schedule 6 offences include murder when it was planned or premeditated and rape when committed in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice.

A Schedule 7 offence is generally more serious than that for which the police may fix bail. eg. culpable homicide (manslaughter), assault, assault with intent to do grievous bodily harm, robbery, theft and fraud (where the amount involved does not exceed R20,000) and possession of drugs.

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BAILME DEFENDME SAVEME™ NO MORE TATTOED TEARDROPS™

We receive numerous calls daily in regard to bail applications services, thus we furnish this brief article to assist the public in understanding the basic principles of bail applications following arrest.

The Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) provides, inter alia, that arrested persons have a right to be presumed innocent and a right to a fair trial and a right to remain silent. These rights are fundamental in the protection of citizens against false charges and abuse of State power over its citizens.

In terms of the Criminal Procedure Act 51 of 1977 (“CPA”) which came into law on 22 July 1977, an accused may obtain bail after arrest in certain prescribed circumstances. Over the years various common law principles have become applicable to the granting of bail by the courts. In 1998, when the CPA was amended to incorporate the bail legislation applicable to the Schedule 5 and 6 offences/crimes, the principles pertaining to these particular offences/crimes are regulated by the CPA and the courts decisions which have amplified the law in that regard.

Covid-19 lockdown implications

In terms of the Directive issued on 2 June 2020, an accused person arrested for a “petty offence” during the declaration of a National State of Disaster must be released and warned to appear in court on a future date, unless the matter can be finalised at the first appearance. The government’s intention was to limit the number of people in holding cells at police stations and in prisons – in an attempt to combat the spread of the virus and adhere to social distancing measures currently in place. However, the SAPS still have 48 hours to charge any individual and an arrested person may still be required to spend up to 48 hours in a holding cell.

Police Bail at police stations

Police Bail is a form of custodial release by the police in prescribed circumstances which are generally applicable to misdemeanours or petty offences. This form of bail is also applicable to certain offences pertaining to The Road Traffic Act and AARTO.

Police Bail is usually set at a monetary value payable in cash only at the police station and persons paying the bail must keep the bail receipt and details of the police officer who processed the bail payment. An arrested person is permitted to have a reasonable opportunity to communicate with a legal representative in order to obtain the amount required for police bail.

Prosecutorial Bail

State Prosecutorial Bail is generally available for more serious offences which are prescribed and for which an arrested person cannot obtain police bail. The difficulty with this kind of bail is in the availability and inclination of prosecutors, especially on Fridays and weekends, to consider and determine the bail in consultation with the arresting police officer.

Court applications for Bail

Bail applications in court are an entirely different kettle of fish. Only the presiding Judge or magistrate can grant the bail application or dismiss it.

If bail is granted, the cash amount of the bail must be paid at the cashier’s office at the court and the receipt must be retained to obtain refunding of the bail amount at a later stage. Only the actual person who pays in the bail amount and who signs the bail receipt is entitled to obtain the refund at a later stage.

An arrested person is entitled to make application for bail upon the first appearance or arraignment or at any time thereafter before conviction and sentencing, if the interests of justice so permit.

Depending on the charge(s), an arrested person who appears in court after arrest, is entitled to apply for bail in terms of the CPA. For schedule 5 and 6 offences, in layman’s terms the onus is on the accused to demonstrate to the court that the accused should obtain bail.

Very particular legal principles apply to schedule 5 and 6 offences because these are in regard to serious, gross and violent offences.

A formal bail application is required which must be delivered to the State Prosecutor and the State may oppose the bail application. If bail is denied, the accused may appeal to the High Court. Invariably, schedule 5 and 6 bail applications can endure for a week or longer depending on the circumstances of arrest and/or the accused persons circumstances and availability of the SAPS and the State Prosecutors to attend to the bail application.

Generally, in consideration of a bail application before the Court, the interests of justice will most likely not be in favour of an arrested person’s release on bail, should the following circumstances exist, namely, that if released on bail, the arrested person will engage in conduct likely to:

• endanger the safety of the public or any particular person; or
• attempt to evade his/her trial; or
• attempt to influence or intimidate witnesses or conceal or destroy evidence; or
• undermine or jeopardise the operation of the criminal justice system; or
• disturb public order or undermine public peace or security.

If a person is charged with an offence listed in Schedule 5 or 6, the bail application must set out reasons as to why granting the bail would be in the interests of justice, as well as establishing that exceptional circumstances (Schedule 6) of the accused warrant bail being granted. These provisions are very onerous and require the services of expert criminal defence attorneys.

It is imperative that an arrested or accused person obtains legal representation from an experienced criminal defence attorney at all times to ensure that protection of their constitutional, statutory and common law rights no matter what the charges are against such person.

www.slamatlaw.co.za

20 May 2021

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