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Unlawful Arrest

Unlawful arrest consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another purporting to act according to the law.

The Criminal Procedure Act lays down strict rules concerning when a person may be arrested: (e.g. his right not to be deprived of his freedom arbitrarily or without just cause or his right to freedom of movement (sections 12(1)(a) and 21(1) respectively of the Constitution). The courts have warned that “If the object of an arrest, though professedly to bring an arrested person before the court, is really not such, but is to frighten or harass and so induce him to act in a way desired by the arrester, without his appearing in court", the arrest is unlawful.

In terms of the CPA an arrest should preferably be made only after a warrant for the arrest has been obtained. It is only in exceptional circumstances that private individuals, or even the police, are authorised to arrest anyone without the authority of a warrant. Any arrest without a warrant which is not specifically authorised by law, will be unlawful.

Even a police official who executes a warrant for the arrest of a person must exercise proper care in doing so. If he negligently arrests the wrong person, he may, in an action for wrongful arrest, be compelled to pay such person a large amount in damages. The arrestor must inform the arrestee of the reason for his arrest at the time of the arrest or immediately thereafter, or give the arrestee a copy of the warrant.

What are my rights when I am arrested?

The detained or accused person, who is arrested for allegedly committing an offence, has the right to remain silent and not to be compelled to make any confession or admission that could be used in evidence against that person. Due to the presumption of innocence, every person is regarded as innocent until properly convicted by a court of law. An accused person does not have to prove that he is innocent. The burden to prove the guilt of the accused rests on the state. The rule is that the onus in criminal cases should always rest on the State. The prosecution must prove every substantive element of the crime as defined in criminal law and which the accused is alleged in the charge sheet/indictment to have perpetrated.

An accused can never be forced to testify; an accused can remain silent even if his answers would not be self-incriminating. A person who exercises his right to silence at his trial should accordingly not be penalised for the exercise of the right as such; no adverse inference should be drawn against his decision not to testify.

The right to legal representation when arrested and detained in the pre-trial stage of the criminal process, protects the suspect or detained person from state abuses and violations of his or her constitutional rights, most frequently, a denial of such person’s right to silence.

Before making a statement to the police or being part of an identification parade, an arrested or detained person needs to be informed of his/her right to counsel and to his right to legal counsel at state expense if he would suffer substantial injustice without such assistance.

The right to a fair trial includes the right to legal representation.

The right to a public trial before an ordinary court of law and the right to challenge evidence.

The right to bail rests on the values embraced in section 12(1)(a) of the Constitution which provides that everyone “has the right to freedom and security of the person, which includes the right ... not to be deprived of freedom arbitrarily or without just cause. . . and a judicial evaluation of different factors that make up the criterion of interests of justice (section 35 (i)(f)). Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. When bail is granted, an accused who is in custody shall be released from custody upon payment of a sum of money determined for his bail. He must then appear at the place and on the date and at the time appointed for his trial, or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned.

The right to be informed of charges against the accused includes that the state must inform the accused about the fact that a verdict could follow on the charge which is a competent verdict on the charge. The accused is entitled to prepare his defence and to have adequate time and facilities to prepare his defence.

Right to fair and public hearing before an impartial court. The accused has the right to equality before the law and to equal protection of the law. Criminal trials must be administered publicly and openly and the accused has a right to be tried in a language the accused understands.

Once you are in custody the Police have the right to keep you for a maximum amount of 48 hours and thereafter bring you to a court of law for a first court appearance. It is possible to obtain Police bail and / or make a formal after hours bail application immediately after your arrest. This will ensure that you will spend as little time as possible in the Police cells. Your attorney will be able to assist you in this regard.

What can I claim for if I am arrested unlawfully?

An action can be instituted for the damages ensuing from false arrest, such as a loss of salary while in prison and / or injury to the reputation / good name of a person that results in a pecuniary loss to the victim. General damages for pain, suffering and loss of amenities of life can also be claimed.

Can I be arrested on the road side for outstanding fines?

The Johannesburg Metro Police, Cape Town Metro Police and other traffic officials have recently developed the tendency of locking people up for unpaid fines. The Police are only allowed to arrest you if:

  • They have the original warrant for your arrest with them. A copy is not sufficient.
  • They have to prove that you received the summons in person. It either had to be delivered to you in person or you had to collect a registered letter from the Post Office.
  • If you do get pulled over and the Police want to arrest you, you must demand to see the Warrant and proof that you received the summons (your own signature on the document when it was delivered to you).
  • If the Police do not have the necessary documentation, the arrest is illegal and will amount to an unlawful arrest.

When does Police Brutality occur?

Many cases of police brutality occur during the time of arrest, during questioning or during strikes.

Police brutality is the intentional use of excessive force, usually physical, but potentially in the form of verbal attacks and psychological intimidation by a Police Officer.

What are my rights if I am a victim of Police Brutality?

The first thing to do is to endeavour to follow the instructions of the officer/s harassing you. If you resist an arresting officer, it will probably only insight him to become more brutal. Do what they say and attempt to stay as low to the ground as possible.

Once you have the opportunity, write down the officer’s name, badge name and number, and car registration number (if applicable). If you have been physically assaulted go to your local doctor as soon possible and have him record in detail the bodily injury you sustained. Take photographs of your injuries to keep as evidence.

If there were any witnesses to the assault take down their complete contact details to ensure that they can testify in your case.

If you have suffered an injury or any damages as a result of police brutality, a claim for damages can be instituted against the police officer/ his department.

Police brutality can also be used as a means to get your criminal case withdrawn if you have been criminally charged, alternatively it may act as a mitigating tool for sentencing in case of a conviction.