Unlawful arrest by the members of the SAPS (South African Police Service) can be extremely distressing especially in circumstances where a suspect has not previously been arrested by the police and is innocent of any allegations thereto.
In certain instances, our law permits a police officer to execute an arrest without a warrant of arrest having been issued against the suspect, despite the aforesaid, Police officers are required by law to have reasonable grounds to arrest and detain members of the Public however wrongful arrest and detention may occur as a result of mistaken identity, information or tip offs or simply because the correct procedures for detaining a suspect have not been followed accordingly.
An unlawful arrest means an arrest which is executed by the police on unlawful grounds, that is, an officer who exceeds his or her authority or an officer who restricts a person’s movement in an unjustified manner. This may lead to civil proceedings being instituted against the state.
As aforesaid, the lawful means when executing an arrest to be followed by police officers are inter alia as follows:
- An arrested person must be shown the warrant of arrest (if a warrant has been issued);
- An arrested person must be informed of the reasons for arrest;
- Once arrested, a person must be informed of his/her legal rights in a language that they understand;
- An arrested person must be brought before a Court within 48 hours of their arrest (a grey area is often made use of as pertains to weekends – Thursday arrests accordingly often turn into Monday Court appearances);
- The arrest with or without a warrant should be properly authorised and there should be a specified basis for the arrest;
Furthermore, unlawful arrests infringe on many citizens’ rights, and it is therefore a gross violation of Section 10 of the constitution which recognises everyone’s dignity and protects the right to have this dignity respected by all.
The right to freedom and security of every person is acknowledged by Section 12 of the constitution, and protects the right not to be deprived of freedom without just cause, which is interpreted to include the right not to be detained without a trial.
Unfortunately, and quite often, arrests are abandoned once the accused reaches the relevant police station, separately, charges are often withdrawn at the first Court appearance.
Unlawful arrests could provide for the right to sue the state, dependant on the relevant circumstances of the matter, which can allow for claims for inter alia damages against the state.
Should you have any queries herein, or require assistance, do not hesitate to contact our office.
Written by ME Mativandlela (Candidate Attorney), as assisted by KR Elliott (Director)