Unlawful arrests remain a serious issue, affecting hundreds of individuals each year. These arrests not only violate fundamental constitutional rights but also cause trauma, reputational harm, and financial loss. It is vital for everyone to understand what constitutes an unlawful arrest, how to protect yourself, and what you can do should this happen to you.

An unlawful arrest occurs when a person is detained without legal justification or due process. The Constitution and the Criminal Procedure Act 51 of 1977 govern the arrest and detention of individuals. Police officers may arrest a person only under specific circumstances, including:

• When they have a warrant of arrest.
• When they have reasonable suspicion that a person has committed a crime.
• When someone is caught in the act of committing a crime.

If none of these conditions are met, and a person is arrested or detained, the arrest may be considered unlawful.

Examples of Unlawful Arrests:

1. Arrests without proper grounds –arresting someone based on a vague suspicion or anonymous tip without further investigation.
2. Failure to inform the arrestee of the reason – the police must inform the person of why they are being arrested.
3. Arrests made to intimidate or harass – using arrest as a form of retaliation.
4. No warrant in non-urgent situations – for minor or non-violent crimes where no urgency exists, a warrant is typically required.

Under Section 35 of the Constitution, an arrestee has the right to remain silent, to be informed promptly and clearly of the reason for the arrest, to consult with an attorney of your choice and to be informed of this right, to be brought before a court within 48 hours and not to not be detained without trial.

If you are being arrested, stay calm and cooperative and avoid resisting physically. This could lead to charges like resisting arrest, even if the arrest is unlawful. The police must also identify themselves and show their identity or provide their names and station. If possible, take note of the officers’ names, and vehicle registration. Contact an attorney or a trusted family member immediately. You have the right to an attorney before answering any questions and do not sign anything without your attorney present.

If grounds exist that your arrest was unlawful, you can institute a civil claim by suing the Minister of Police for unlawful arrest and detention. Compensation may be awarded for loss of income, psychological and emotional trauma, damage to reputation and medical expenses (if injured). If the arrest involved assault, torture, or abuse, you can also lay criminal charges against the officers involved.

Having a competent attorney is crucial when dealing with the aftermath of an unlawful arrest as Attorneys can assess whether your arrest was unlawful, file complaints and legal claims on your behalf, negotiate compensation settlements and protect your rights in court. By understanding your rights and the recourse available, you can better protect yourself and seek justice when wronged.