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Powers of enforcement, human rights and the Constitution

Powers of enforcement, human rights and the Constitution. How fire protection officers, forest officers, police officers and officers appointed under the Fire Brigade Services Act may exercise their powers. Who may enforce the Act?.

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Powers of enforcement, human rights and the Constitution

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  1. Powers of enforcement, human rights and the Constitution How fire protection officers, forest officers, police officers and officers appointed under the Fire Brigade Services Act may exercise their powers

  2. Who may enforce the Act? • A registered fire protection officer (FPO), a designated forest officer (FO), a police officer, and an officer appointed in terms of section 5 or 6 of the Fire Brigade Services Act have the power to enforce the National Veld and Forest Fire Act (NVFFA). References to an FPO in sections 27, 28 and 29 of the NVFFA (Chapter 8 only) includes all the abovementioned officials. An FPO or one of these officers must carry identification to be able to exercise thesepowers

  3. Balancing powers and rights • In the past the rights of ordinary South Africans were routinely abused by the State • People’s rights and dignity were often overridden in the process of enforcing old land, forest and conservation laws

  4. The constitutional framework • The Constitution is the supreme law of the land • It provides for separation of powers • It defines the powers of the executive and defends the independence of the judiciary • It enshrines the rights of every citizen as well as their responsibilities

  5. The Bill of Rights • Chapter 2 of the Constitution contains the Bill of Rights • This is the cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom • The state must respect, protect, promote and fulfil the rights in the Bill of Rights • Sections 9 – 35 of the Bill detail the rights enjoyed by all South Africans

  6. Equality (s9) Human dignity (s10) Freedom and security of persons (s12) Privacy (s14) Right to property (s25) Just administrative action (s33) Access to courts (s34) Rights of arrested, detained and accused persons (s35) Rights to be aware of

  7. Human dignity (s10 of the Bill of Rights) • All persons should be treated with decency, dignity and respect • When an officer enforcing the Act disrespects the dignity of a person, for example, by using abusive language, an abuse of authority is likely to occur

  8. Freedom and securityof persons (s12 of the Bill of Rights). • No person may be arbitrarily be deprived of freedom without just cause • i.e. without legal authority • No person may be detained without trial • No person may be treated in a cruel, inhuman or degrading way • Individuals have the right to be protected against arbitrary acts by the state that violate or inhibit physical or psychological integrity

  9. Rights of arrested, detained and accused persons (s35) • Arrest is a very serious limitation on a person’s rights • Section 35 sets out extensive rights of arrested and detained persons • Officers enforcing the Act are required to inform people of their rights upon arrest • An arrested person is always presumed to be innocent until proven guilty

  10. How rights are limited • The rights in the Bill of Rights are not absolute • They are subject to the limitations contained or referred to in s36 • Rights can only be limited to the extent such limitation is ‘reasonable’ • Limitation of rights must respect human dignity, equality and freedom • Limitation of rights must be contained in a law of general application such as the NVFFA and the Criminal Procedure Act

  11. General consequences of abuse of power • Officers who engage in unlawful arrest, use unjustified force, or engage in illegal searches and seizures can be subject to internal discipline and civil claims • Victims of such actions are entitled to institute a civil claim against the officer or the State. • This could result in the officer or State having to pay an amount of money (damages) to the victim

  12. General consequences of abuse of power #2 • Such civil claims could include crimen injuria, assault, malicious damage to property and theft • Evidence obtained illegally must be excluded from a trial and may result in the accused person being found innocent

  13. Conclusion • FPOs, FOs, police officers and officers appointed under section 5 or 6 of the Fire Brigade Services Act have been given extensive powers in terms of the NVFFA • As public servants these officers have an important duty to uphold the Constitution • This requires that they exercise their powers in the full knowledge of, and respect for the rights of all

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