An arrest may take place with or without a warrant, however, not every arrest performed by the police is a lawful arrest. South African law places a strict limit on the way an individual may be deprived of their fundamental constitutional right to freedom.

An arrest is regarded as unlawful when it takes places without a valid legal basis or when an arrest is not in compliance with the prescribed legal procedure as detailed in the Criminal Procedure Act 51 of 1977.

For an arrest to be lawful:

• The arrestor must be a peace officer;
• The arrestor must have reasonable suspicion that an individual has committed an offence as contemplated in schedule 1 of the Criminal Procedure Act; or
• The individual has committed or is committing an offence in the officer’s presence.
• The arrest must be effected in accordance with the Constitution and the Criminal Procedure Act.

Section 40 of the Criminal Procedure Act further details the specific circumstances under which an individual may be lawfully arrested without a warrant. Where these requirements are not met, the arrest becomes unlawful.

Most importantly, an individual does not lose their rights when arrested. From the instance that an individual is arrested, they have, amongst others, the right to remain silent, the right to be informed of the reason for the arrest, the right to the presumption of innocence and the right to legal representation. They must be informed of their right to Legal Aid, who are state-funded legal representatives that are available for accused who cannot afford a private attorney. Once arrested, the accused must be charged within 48 hours and must be treated with dignity and respect at all times.

Unlawful arrests and detention are unfortunately very common in South Africa. They often arise from corruption, inadequate investigations, mistaken identity, or a failure by law enforcement to exercise their powers lawfully, often due to lack of knowledge of the law or negligence. South African courts have consistently emphasised that unlawfully depriving someone of their freedom is a serious infringement of a fundamental constitutional right and will be addressed accordingly, holding the relevant parties accountable for the unlawful conduct.

When an individual has been unlawfully arrested and detained, our law provides a clear remedy. The affected individual is entitled to institute a civil claim against the Minister of Police. This process will typically begin with instructing an attorney, they will assess the merits of the case, gather evidence such as arrest records or witness statements, they will then issue a letter of demand on your behalf. If the matter is not resolved, a summons will be issued in the appropriate court, setting out the unlawful arrest and detention as well as the damages suffered and compensation sought. This can be a lengthy process and could potentially take years to be finalised.

In determining the quantum of damages, our courts do not apply a fixed tariff for all matters. Instead, each case is assessed on its own set of facts and circumstances. The courts consider factors such as duration of the detention, the manner of the arrest, whether the individual was subjected to any assault, humiliation or degradation, the conditions of the detention and the impact the arrest or detention has had on the individual’s dignity, reputation and emotional wellbeing. This ensures that the compensation is fair without being excessive.

The purpose of awarding damages to victims of unlawful arrest or detention is not merely to compensate these individuals, but also to deter future unlawful conduct from our South African law enforcement and to hold them accountable for their actions. It sends a clear message that infringement of fundamental rights will not be taken lightly by our courts.

If you believe you may have been unlawfully arrested or detained, you are welcome to contact BDK Attorneys to schedule a consultation to assess if you have a valid claim.

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