What powers do Neighbourhood Watch patrols have?

Issue: Can members of your local neighbourhood watch program arrest you?

Here’s a question from Cebo:

My husband went out with his friends and came home late, around 1am. He was drunk and said he hit a pothole or a large stone, but is not sure. Either way, he got a flat tyre. He didn’t have a spare tyre and wasn’t too far from home, so he decided to walk the rest of the way.

During his walk, some men from the local neighbourhood watch stopped him. When he explained what had happened, they arrested him for “leaving the scene of an accident,” “drunk driving,” and because he was being a nuisance by singing loudly while walking. They took him to the chairperson’s house, where he was held until morning. They claimed it was for his own safety.

I didn’t know that neighbourhood watch groups could arrest people. I complained in the neighbourhood WhatsApp group, but people keep saying my husband is at fault. I know he was drunk and acting rowdy, but they had no right to arrest him. They should have just called the police if they thought he did something wrong. Also, they can’t just take someone to the chairperson’s house and call that jail. That doesn’t make sense.

I wrote an email to the chairperson demanding an apology, but he ignored it. Now, I’m considering suing them because this whole thing feels wrong. My husband says it would get him into more trouble since he was drunk, but I want to know if there’s any way we can take legal action.

From The Legal Desk:

Thank for your question Cebo. Firstly, I would be remiss if I did not point out the obvious: drinking and driving kills. Please advise your husband to use e-hailing services like Uber, Bolt, or whichever service operates in your area. If there are no such services available, perhaps he could ask you to pick him up at the end of the night or explore any other solution that does not involve drinking and driving. No matter how great the night is, it would be deeply regrettable if it ended in tragedy.

That said, let’s talk Neighbourhood Watch programs. For those who may not be familiar with the concept, a neighbourhood watch is a community-based crime prevention program where residents work together to reduce crime and enhance safety in their area. It essentially involves neighbours looking out for each other, observing and reporting suspicious activities to the police, and fostering a stronger sense of community.

While neighbourhood watches are similar to Community Policing Forums (CPFs) in that both are community-based initiatives aimed at improving safety, they have distinct structures and focuses. A neighbourhood watch is primarily a volunteer-based group of neighbours who observe and report suspicious activity to the police, while a CPF is a formal structure that includes the police and other community organisations to address broader crime and safety issues. Ultimately, both serve to fill the gap created by limited police resources. Realistically, there are simply not enough police resources to ensure that every neighbourhood is properly serviced and patrolled.

Sometimes, members of these organisations blur the lines between their role as private citizens and the role of the police. Perhaps it is because many neighbourhood watch programs have become so formalised that members wear uniforms while patrolling. Whatever the reason, when these lines are blurred, situations like Cebo’s can arise. So, can neighbourhood watch personnel arrest people? Let’s take a look at the legals…

Regardless of how formalised a neighbourhood watch program is, its members are still, for all intents and purposes, considered private citizens. In his article “Die regsbevoegdhede van buurtwageenhede” (“The Legal Powers of Neighbourhood Watch Units”), Bouwer discusses the legal authority of neighbourhood watch members in South Africa and emphasises that they are considered private citizens and do not possess special police powers. Their powers regarding arrest, seizure, search, and entry are limited to those explicitly granted to private individuals under the Criminal Procedure Act (“CPA”).¹

If you are conversant in Afrikaans, you can read Bouwer’s article here. However, the key points of the article are as follows:

Members of neighbourhood watch units are regarded as private individuals and only have the powers granted to private persons by the CPA. They do not have special “police powers” and, as such, are not under a general legal obligation to arrest. The only legal duty to arrest arises when a police officer instructs a male resident of the Republic to assist in an arrest.²

A “private person” (which includes a member of a neighbourhood watch) can arrest someone without a warrant for certain offences, particularly if the offence is committed in their presence, or if they reasonably suspect that the person has committed a Schedule 1 offence. They can also arrest someone fleeing after committing an offence and being immediately pursued by someone believed to have the authority to arrest them. An owner, lawful occupant, or person in control of property can arrest someone committing an offence on or in relation to that property.

Any arrest made by a neighbourhood watch member will be without a warrant. To effect a lawful arrest, the neighbourhood watch member must take the person into custody (using force if necessary) and inform the arrested person of the reason for the arrest at the time or at the first opportunity. Failure to inform the arrested person of the reason when there was an opportunity can render the arrest unlawful, thereby allowing the person to escape lawfully. The effect of an arrest is that the person is in lawful custody until legally discharged or released.

A neighbourhood watch member can break open, enter, and search premises to effect an arrest under section 48 of the CPA, provided they know or reasonably suspect that the person is on the premises, access is required, the purpose of access is announced, and entry cannot otherwise be gained. However, requesting entry is generally a requirement, though not absolute, if it would allow the suspect to escape or destroy evidence.

A person who escapes or attempts to escape from lawful custody after being lawfully arrested and before being placed in a detention facility is guilty of an offence.³ This crime requires a lawful arrest to have occurred, meaning the arrested person was taken into custody and informed of the reason for the arrest, or if the escape happened too early to communicate the reason.

After an arrest, the neighbourhood watch member must keep the person in custody and hand them over to the police “as soon as possible.” Neighbourhood watch members can seize evidence,⁴ instruments used in a crime, or the subject of a crime. They do not have a general power of seizure but can seize section 20 objects if the person in control consents or if the object is in the control, possession, or custody of an arrested person. Seized items must be handed over to the police at the first opportunity.

While section 23 of the CPA grants peace officers powers of search and seizure, neighbourhood watch members (private persons) only have seizure powers upon arrest. However, a neighbourhood watch member may search someone if the person voluntarily submits to a search, if the member knows a section 20 object is in the person’s possession and knows its location, or if they lawfully oversee or possess premises and reasonably suspect stolen livestock or illegal substances/weapons are present.⁵ A female can only be searched by a female, and if no female is available, the arrested woman must be held and handed over to the police.

Generally, neighbourhood watch members cannot enter and search another person’s premises without their consent. They can only enter for search purposes with the express permission of the owner, lawful occupant, or person in control. Exceptions include managing another’s interests without consent in their best interest (necessity) or if they lawfully oversee or possess premises and reasonably suspect certain illegal items (stolen livestock, alcohol, drugs, weapons, explosives) are present.

Reasonable force may be used during lawful entry, search, seizure, or arrest. Reasonable force is defined as the minimum force necessary to achieve the objective. Alternatives involving less force should be considered, but if they are ineffective, more direct force may be justified. When using force during an arrest, the neighbourhood watch member bears the burden of proof to show they were authorised to arrest, attempted the arrest, the suspect was aware of the arrest, resisted or fled, and the force used was reasonably necessary to overcome resistance or prevent escape.⁶ The use of deadly force is subject to stricter conditions, requiring certainty or reasonable suspicion of a Schedule 1 offence and that the deadly force is the only way to effect the arrest or prevent escape.⁷

I hope this gives you an idea of what your neighbourhood watch can and cannot do. Based on what you’ve told me, I believe your neighbourhood watch may have exceeded their powers, especially by detaining your husband and not making an effort to hand him over to the police. As I mentioned above, neighbourhood watch members are private persons, and they must hand over any arrestees to the police as soon as possible. They cannot detain people at the chairman’s house without notifying the police. Furthermore, the crimes he supposedly committed must have been committed in their presence.

You are well within your rights to pursue civil claims for damages and even criminal prosecution. Whenever you challenge the legality of the neighbourhood watch’s actions, the burden of proof lies with the neighbourhood watch member to prove the lawfulness of those actions. Having said that, it is also worth considering the social ramifications of a neighbourhood watch, and, by the sounds of it, a neighbourhood that may not be too pleased with you. All the best.

Note: The above principles also apply to CPFs.

Written by Theo Tembo