Theme 1 pt 2

• Explain the impact that the Dutch and the British had on South African policing systems
• Were the similarities between the policing systems that were developed and used in English and the USA and in South Africa? If yes or no, explain why
• Before discussing the principles and objectives relating to investigation, one needs to first understand the context and environment within which an investigation is conducted (South African context)
• Some citizens whose conduct may not require 'policing', some elements in society just do not seem able to conform to what is required by law or policy and thus need policing
• Policing is a direct result of the fact that society is not able to police itself and it requires an external mechanism for social control
• The police force is the primary role-player responsible for social control, and as a result, to a greater extent, responsible for guiding the conduct and activities of the citizenry than any other government department
• The idea that the police alone can prevent crime is basically flawed and an impossible mandate
• The private security industry has expanded greatly in recent times and currently makes an extensive contribution in the areas of preventing and combating crime (which include investigation)
• Forensic investigation provide the private security industry with the investigation capacity and capability to investigate incidents that occur within private entity and that are not necessarily the subject of an official police investigation
• Not all bad acts are necessarily crimes. Most companies and businesses in SA have a set of rules that governs and guides conduct in the workplace. This also includes legislative prescriptions
• Basic conditions of Employment Act 73 of 1997 is an important legislative framework that governs employer/employee relations and interaction
• Company policy is another form of rules that govern the conduct of employer and employees. These policies contain certain guidelines and prescriptions about, among other things, working hours, conduct at work and the use of company property
• A company can institute an investigation when a property has been misused. The investigator needs to determine whether a transgression has indeed taken place, who is responsible for the transgression etc
• When a company suffers a loss as a result of employee misconduct, it may institute a civil litigation
• While the various role-players in official investigations derive their powers and functions from different pieces of legislation, government policy or organizational/institutional policy, there are two primary pieces of legislation with which all investigators need to comply: the constitution and the Criminal Procedure Act 51 of 1977
• The moment the investigator steps onto the playing field they must abide by the rules of the game. It is in the interest of investigators and the institutions they represent to familiarize themselves with this legislation and if they are not sure of an aspect, to ask before acting
• Constitution of the Republic of South Africa, 108 of 1996

  It is the supreme law, it guides the police and policing in RSA. Any law must be consistent with the constitution will
• SAPS

  • Constitutionally mandated in terms of s205 as the national police service
  • Objectives are to prevent, combat and investigate crime, maintain public order, protect and secure inhabitants and their properties, uphold and enforce the law
• Chapter 2, the bill of rights

  Viewed as the corner stone of democracy and affords every person the right to equality, human dignity, life and freedom and security of the person, among other things
• S35(5) Evidence obtained that violate any right in the bill of right will be deemed inadmissible
• South African Police Services Act 68 of 1995

  • Governs police and policing in the Republic of South Africa
  • Provides the establishment, organisation, regulation, and control of the SAPS
  • Functions of the SAPS are to ensure the safety and security of all persons and property in the national territory
  • Uphold and safeguard the fundamental rights of every person as guaranteed in the Constitution of RSA
  • Ensure cooperation between the SAPS and the communities it serves to combat crime
  • Provides for effective civilian oversight over the police and respect for the victims of crime
  • Safeguards against the abuse of power through the Independent Complaints Directorate (ICD), later changed to the Independent Police Investigative Directorate (IPID)
• Criminal Procedure Act 56 of 1977

  • Governs criminal procedure in South Africa's legal system
  • Details the procedure for the whole system of criminal law, including search and seizure, arrest, the filing of charges, bail, the plea, the testimony of witnesses and the law of evidence, the verdict and sentence, and appeal
• Criminal Procedure Act 56 of 1977

  • Use of force by police officers
  • Reasonableness
  • Discretion
  • Burden of proof
  • Methods of seizure
• Criminal law (forensic procedures) Amendment Act 6 of 2010

  • Provides for the compulsory taking of fingerprints of certain categories of persons
  • Provides that a police official may ascertain if the body of a person accused or convicted of a crime any mark, characteristic or distinguishing features or shows any particular condition or appearance
  • Police officials may take reasonable steps to obtain any specimen or test results to explain the characteristics of a person's physical appearance or even the person's genetic makeup, which can be presented as evidence
• Criminal law (Forensic Procedures) Amendment Act 37 of 2013

  • Commonly referred to as 'DNA Act'
  • Provide for the taking of specified bodily samples from certain categories of persons for the purposes of forensic DNA analysis
  • Amends s225 of the CPA by inserting reference to bodily samples. The bodily samples of an accused and the corresponding information to another crime sample or bodily sample may be used in court proceedings
  • Medical practitioner or nurse may take necessary steps, extract blood samples, to determine whether the body has any mark, characteristics or distinguish feature
  • The court can order taking of blood sample from persons not arrested
  • Establish and regulate the administration and maintenance of the National Forensic DNA Database of South Africa
• Key readings

  • Zinn, R. and Dintwe, S. 2015. Forensic Investigation. Cape Town. Juta and Company (Pty).
  • Olutola, A. 2018. Legal mandates: Constitution and enabling mandate. In: Roelofse, C. J. N. and Gumbi, C. eds. Policing in South Africa: past and present. Durban: LexisNexis.