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Unlawful arrest
23 May 2018  | Tumi Mokobe
“You have the right to remain silent; anything that you say may be used against you in a court of law.  You have a right to an attorney, if you cannot afford one, one may be appointed to represent you at the expenses of the state.  Do you understand these rights?”

Before a police official tells you these words during an arrest, you should be informed of the charge(s) against you. However, the process following should be of an arrest conducted in a dignified and fair manner, not abusive or violent. This should only happen if an accused co-operates with the arresting official and does not resist arrest. 

An unlawful arrest means an arrest which is made by the police on unlawful grounds, i.e an officer who exceeds his/her authority or an officer who restricts a person’s freedom of movement in an unjustified manner. This may lead to civil proceeding being instituted against the State.

An accused has the right to be informed of the charges on which he/she is being arrested for, and also the rights granted to him during that stage. In many instances, police officers tend to arrest people without any grounds and this therefore leads to injustice according to the South African Law. In most cases you would find that the accused was indeed guilty of an offence which he is being arrested for, but for the mere fact that the police official who arrested him/her did not conduct the arrest in a lawful manner, it might become a burden on the State’s case.

People have the perception that police officers are above the law and cannot be held accountable for their wrongful actions. The case is totally the opposite and nobody is indeed above the law, because police officers may also be held accountable for their actions. A victim of unlawful arrest may claim damages from the Minister of Police if he/she successfully proves his case in a court of law. In this case, it does not mean that the Minister of Police is personally liable, but claims against a certain organ of state is always directed to the Minister of the department in question.

If a person was a victim of an unlawful arrest which led to the victim being injured or detained for a certain period of time without valid grounds, he/she may launch a monetary claim for medical expenses (past and future medical costs), and also if the victim is employed, he/she may institute a claim for past and future loss of income. Each and every case should be weighed based on its merits. Other claims which the victim may have are general damages related to your loss of freedom, dignity and suffering experienced.

In order to institute such a claim, the victim would need the details of the officer in question, date and time of the arrest and also witnesses who were present at the arrest. You also need to keep record of all expenses related to the arrest or detention, including loss of earnings and medical expenses.

This claim may be instituted by consulting with a professional legal practitioner in order to commence proceedings.

Reference List:

Simpsons Attorneys
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