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Three assailants, A, B and C are engaged in an armed robbery at one of the jewellery stores in the
newly-built Mall For All shopping centre. During the ensuing fracas, a firefight ensues as the security
guards employed by the shopping centre attempt to foil the robbery. F, one of the security guards,
orders A, who is cornered inside the store to surrender. However, A responds by running out of the
jewellery store towards an opposite exit of the shopping centre. Still in hot pursuit, F issues three
instructions to A to stop, but A continues running away in the opposite direction. F thereupon takes out
his firearm, and shoots at A (who, at this point is about 10 metres away from F), hitting him on his left
shoulder. A is, thereupon apprehended by F. Meanwhile, B and C make away with an undisclosed
amount in fine jewellery and cash.
1. “In terms of s 35(1)(d)(i) of the Constitution and section 50(1)(d) of the CPA, everyone who is
arrested for allegedly committing an offence has the right to be brought before a court as soon as
reasonably possible, but not later than 48 hours after the arrest” After A’s arrest, he is placed in
hospital where he is recuperating from his injuries. He is only made to appear in court ten weeks
after his initial arrest. Upon his first appearance in court, A instructs his attorney L, to apply for
the case to be ‘struck off the roll’ on the grounds that his Constitutional right to appear before
court within 48 hours has been violated. Critically evaluate and discuss the merits of A’s
contention.
In the case at hand, A was arrested and subsequently detained for more than the constitutionally
mandated 48 hours before being brought to court. According to section 35(1)(d) of the Constitution,
everyone who is arrested for allegedly committing an offence has the right to be brought before a
court as soon as reasonably possible, but not later than 48 hours after the arrest1 . This right is echoed
by section 50(1)(d) of the Criminal Procedure Act (CPA), which also mandates that an arrested
person must be brought before a court within 48 hours1.
However, the Constitution and the CPA provide for exceptions. If an accused person is unable to
attend court due to physical illness or injury, the 48-hour period may be extended until the accused is
fit to attend1. In this case, A was hospitalized due to injuries sustained during the robbery, and the
extension of the 48-hour period would be reasonable based on medical grounds, provided a medical
certificate substantiated A's condition. This extension is not automatic but depends on the court’s
discretion, which is typically supported by a valid medical certificate confirming the accused’s
inability to attend court.
A's contention that his right to appear in court within 48 hours was violated might be justified if the
delay was unreasonable or if the medical grounds for his delay were insufficiently substantiated. If
the court concludes that the delay in bringing A to court was excessive and not warranted by his
medical condition, A may have grounds to argue that his constitutional rights were violated.
However, based on the reasoning in cases like Minister of Safety and Security v Tyokwana (2015),
the right to a speedy trial is a fundamental right, and delays must be justified, especially when they
exceed reasonable limits1.
In conclusion, A’s right to be brought before a court within 48 hours was indeed violated if the
medical condition did not sufficiently justify the ten-week delay. A constitutional challenge might be
successful if the court determines that the delay was unreasonable and violated A’s rights under
section 35(1)(d) of the Constitution.
1: (Joubert & Ally 2020: p. 352)
Three assailants, A, B and C are engaged in an armed robbery at one of the jewellery stores in the
newly-built Mall For All shopping centre. During the ensuing fracas, a firefight ensues as the security
guards employed by the shopping centre attempt to foil the robbery. F, one of the security guards,
orders A, who is cornered inside the store to surrender. However, A responds by running out of the
jewellery store towards an opposite exit of the shopping centre. Still in hot pursuit, F issues three
instructions to A to stop, but A continues running away in the opposite direction. F thereupon takes out
his firearm, and shoots at A (who, at this point is about 10 metres away from F), hitting him on his left
shoulder. A is, thereupon apprehended by F. Meanwhile, B and C make away with an undisclosed
amount in fine jewellery and cash.
1. “In terms of s 35(1)(d)(i) of the Constitution and section 50(1)(d) of the CPA, everyone who is
arrested for allegedly committing an offence has the right to be brought before a court as soon as
reasonably possible, but not later than 48 hours after the arrest” After A’s arrest, he is placed in
hospital where he is recuperating from his injuries. He is only made to appear in court ten weeks
after his initial arrest. Upon his first appearance in court, A instructs his attorney L, to apply for
the case to be ‘struck off the roll’ on the grounds that his Constitutional right to appear before
court within 48 hours has been violated. Critically evaluate and discuss the merits of A’s
contention.
In the case at hand, A was arrested and subsequently detained for more than the constitutionally
mandated 48 hours before being brought to court. According to section 35(1)(d) of the Constitution,
everyone who is arrested for allegedly committing an offence has the right to be brought before a
court as soon as reasonably possible, but not later than 48 hours after the arrest1 . This right is echoed
by section 50(1)(d) of the Criminal Procedure Act (CPA), which also mandates that an arrested
person must be brought before a court within 48 hours1.
However, the Constitution and the CPA provide for exceptions. If an accused person is unable to
attend court due to physical illness or injury, the 48-hour period may be extended until the accused is
fit to attend1. In this case, A was hospitalized due to injuries sustained during the robbery, and the
extension of the 48-hour period would be reasonable based on medical grounds, provided a medical
certificate substantiated A's condition. This extension is not automatic but depends on the court’s
discretion, which is typically supported by a valid medical certificate confirming the accused’s
inability to attend court.
A's contention that his right to appear in court within 48 hours was violated might be justified if the
delay was unreasonable or if the medical grounds for his delay were insufficiently substantiated. If
the court concludes that the delay in bringing A to court was excessive and not warranted by his
medical condition, A may have grounds to argue that his constitutional rights were violated.
However, based on the reasoning in cases like Minister of Safety and Security v Tyokwana (2015),
the right to a speedy trial is a fundamental right, and delays must be justified, especially when they
exceed reasonable limits1.
In conclusion, A’s right to be brought before a court within 48 hours was indeed violated if the
medical condition did not sufficiently justify the ten-week delay. A constitutional challenge might be
successful if the court determines that the delay was unreasonable and violated A’s rights under
section 35(1)(d) of the Constitution.
1: (Joubert & Ally 2020: p. 352)
