If a crime victim in South Africa doesn’t open a case with the police, can the police still investigate?

During the launch of Pieter-Louis Myburgh’s Gangster State on 9 April, African National Congress Youth League supporters stormed the bookshop, ripped books apart and forced the author to flee for his life. Police were called but made no arrests because, according to a police spokesperson, they couldn’t investigate ‘until the owner of the shop opens a case to say there was damage to property’.

At the time of this statement no such case was opened. But based on media reports, the police must have witnessed some of the criminal activity that took place. Not only was there malicious damage to property, but also other possible crimes such as public violence, intimidation and theft. These should have warranted immediate arrests or a police-initiated investigation independent of a formal complaint.

In the high-profile case of artist Babes Wodumo in March, a video she took was circulated showing how she was allegedly assaulted by kwaito star Mampintsha. Unlike the bookshop incident, the police said that while they preferred a complaint by the victim, they ‘have the ability to … investigate without formal charges being laid’.

According to the police, in such instances they can ‘take over the case as a state case’ if ‘witnessed’ by a police officer or someone else. The police essentially act on behalf of the state despite the absence of a formal complaint by a witness or victim.

On 13 May Police Minister Bheki Cele said the police were taking statements from politicians and others for allegedly involving themselves in double-voting during the 2019 elections. This happened after Economic Freedom Fighters (EFF) national chairperson Dali Mpofu admitted in a televised interview that he asked EFF members to test the system. Again this shows the police’s readiness to initiate an investigation in the absence of a formal complaint.

The apparent inconsistency regarding when the police act without a formal complaint may be linked to confusion about the law governing their duties. When formal complaints are opened by victims or witnesses the police’s role is clear – they must investigate. What is less clear is their duty to investigate without a complainant having opened a criminal case, but where crimes have been brought to their attention or perpetrated in their presence.

The duty and powers of the police are prescribed by law in the constitution, the SA Police Service Act, 1995 and others. The Criminal Procedure Act, 1977 says police are authorised to arrest anyone without a warrant when that person commits or attempts to commit an offence in their presence, is reasonably suspected of having committed an offence referred to in Schedule 1 of the act, or has escaped or attempts to escape from lawful custody.

Crimes listed in Schedule 1 range from violent crimes such as murder to property crimes such as theft, and any conspiracy, incitement or attempt to commit any of these offences.

South Africa’s courts have also often pronounced on the legal duty of the police. In Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), Nugent, Justice of Appeal, found that: ‘… the State has a positive constitutional duty, imposed by s7 of the Constitution, to act in protection of the rights in the Bill of Rights’.

This means the police are legally obligated, once they witness or are informed of a crime, to act in the interest of protecting the rights of victims, whether the victim formally lays a complaint or not. The police’s position is different to that of ordinary citizens in that they cannot simply walk away from a criminal offence and do nothing.

This is explained by Melunsky, Acting Justice of Appeal, in S v Williams and Others 1998 (2) SACR 191 (SCA), citing Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N): ‘Although mere failure to report the crime to the authorities would not render a member of the public guilty of being an accessory after the fact of that crime ... a police officer is in a different position as it is his legal duty to bring criminals to book.’

This doesn’t mean the police must always arrest someone if a crime has been committed. The police should always consider less invasive ways to ensure that an alleged perpetrator is available to help with an investigation or appear in court to face charges. In less serious crimes the police can request that person to accompany them or report to the police station without arrest.

The police must clarify their response to crimes committed in their presence or when they come to their attention without a formal complaint. They have a legal duty to take appropriate action and police managers must ensure that their policies and training help police to respond accordingly.

South Africa’s new cabinet should ask for a clear and measurable five-year police reform plan to professionalise the South African Police Service. This will not only improve public safety but also reduce police abuses, free up more money for effective policing tactics, and build public trust in this important institution.

Written by Johan Burger, Consultant, Justice and Violence Prevention, ISS and Chris Botha, Researcher, Author and Facilitator of Learning