Although the Law specifically obliges any inhabitant of South Africa between 16 and 60 to assist the Police in arresting or detaining someone when called upon by the Police to do so, you may refuse if you have “sufficient cause” not to assist.
A failure to assist in the absence of a sufficient cause, may lead to a conviction and either a fine or imprisonment.
The manner in which the particular law is drafted is troublesome and it may give the impression that the Police may determine that you have committed an offence, convict you and pass sentence. However, such an interpretation, in our opinion, would be contrary to the Bill of Rights in the South African Constitution which demands that someone accused of an offence be given a fair trial.
Briefly, the elements of criminal liability must be met in order for you to be convicted: is it a crime not to help the Police? Did your actions or omissions actually result, using the legal test, in something that is generally prohibited? Was the act or omission itself unlawful? Was it carried out with sufficient culpability to convict you of a crime?
What is meant by unlawfulness? The 1981 Court case of Marais v Richard and Another is important; in this case, it was determined that in order to understand the general limits of unlawfulness, one must look to the general standard of reasonableness. In the 1972 Case of S v Goliath, reasonable (roughly translated from Afrikaans) is defined as: “reasonable in this regard means what can be expected of the ordinary average person in the particular circumstances”.
Culpability is the ability to appreciate the difference between right and wrong and ties in with mental capacity together with whether the act or omission was intentional or negligent. In the 1923 case of Rex v Jolly and Others, intention was accepted as being “A party who does an act willfully, necessarily intends that which must be the consequence of the act”. In our opinion, an omission would be subject to the same test. In the 1965 case of Peri-Urban Areas Health Board v Muarin, it was said that “negligence is the breach of a duty of care” where one is required but that it “depends on the circumstances in each particular case”. The 1975 case of S v Burger elaborates the standard of care required as the duty to “tread life’s pathways with…common sense”. According to the 1966 case of Kruger v Coetzee, for negligence; there is a necessity to prove foreseeability, reasonable steps that should have been taken to guard against the eventuality and a failure to take those steps.
In the 1998 case of S v Jackson, the general rule that the State has to prove its case beyond all reasonable doubt was referred to and this general rule was accepted as trite law in the 2017 case of Meyer v S.
It is important to bear the above in mind when being accused of an offence. Among other queries which may arise from such a question would be; the extent to which you are obliged to assist the Police, the format of a trial or even the possibility that a conviction (if one occurs) may be expunged from your record at a future date is beyond the scope of this very short article.
Each case has its own circumstances and the above is a brief introduction to the complexity one encounters in Criminal Law. It is suggested you contact a Lawyer to discuss your obligations and the extent thereof as well as any general Criminal Law queries you may have.
Ismail Ayob and Partners practice Criminal Law and can assist you. Please contact Ismail Ayob or Zayd Ismail Ayob for a consultation. Tel: 011 727 5800 Email: advice@iap.co.za