Unlawful Arrests and Lodging a Civil Claim Against the Police

Over the last few years, Parliament’s police portfolio committee has frequently raised concerns over the growing number of civil claims against the South African Police Services. Just last year, the Minister of Police was ordered to pay almost R600 000 in damages to a teenager who was unlawfully arrested and detained. The teenager was arrested on suspicion of robbery and was subsequently thrown in a dirty jail cell and assaulted by inmates. Unfortunately, this isn’t an isolated incident. It is reported that in the 2015/2016 financial year, the Minister paid R300 million to settle claims.

Our courts don’t take the arbitrary deprivation of personal freedom lightly. Of course, the irony is crystal-clear: an institution that’s in place to serve and protect innocent citizens ends up infringing on people’s rights. And yes- the police can break the law and even, ultimately, be held accountable for their actions.

Naturally, with crime being prevalent in South Africa, the SAPS often have to make quick decisions in an attempt to be pro-active, and, yes, mistakes happen. However, it is an entirely different story when the police do not conduct a thorough investigation, display blatant negligence or arrest an innocent person. There are other contributing factors, too: often officers are under-trained and don’t adhere to policing procedures, which results in them breaking the law or violating the SAPS Code of Conduct.

In many of these cases, those who have been negatively impacted by any of these actions can lay a civil claim against the police to get justice and claim compensation for damages.

Legal Rights & Protection Under The Constitution

Fundamentally, an unlawful arrest infringes on many of a citizen’s rights. Firstly, it is a gross violation of section 10 of the Constitution which recognises that everyone has inherent dignity and protects the right to have that dignity respected and protected. Moreover, section 12 acknowledges the right to freedom and security of every person, and protects the right not to be deprived of freedom arbitrarily or without just cause; and not to be detained without trial.

When Can a Police Officer Make an Arrest?

According to the Criminal Procedure Act, a police officer may only arrest without having a warrant, if witnessing a crime or when there is reasonable suspicion that a person has committed what is known as a Schedule 1 crime such as rape, robbery or arson.

What Should You Do When a Police Officer Approaches You?

Firstly, you should remain calm. Do not flee or allow your first response to be an aggressive one. Offer your co-operation to the officer, do not resist arrest (even if you aren’t in the wrong) and never offer to pay a bribe. Should arrest be resisted, then reasonable force may be used by the officer to affect the arrest.

For more info on what to do, have a look at LAW FOR ALL’s infographic on Being Arrested and Your Rights.

Instituting a Civil Claim for Wrongful Arrest and Detainment

It’s important to note that it is well within your rights to sue an organ of the State such as the SAPS, but you are required to give written notice of your intention to institute legal action against the SAPS and the Minister of Police within 6 months of the claim arising. The notice must be delivered to the person by hand or by email.

Then, after 90 days after serving the notice of the intended legal proceedings, you have 3 years to institute a civil action against the Minister in court.

If you don’t give the required six months’ notice and you have good reasons for not doing so, you can apply to the court for condonation. This means you ask the court to allow you to continue with the claim even though it has officially prescribed or lapsed because you had good reasons for not giving notice on time.

Do note: simply not knowing that you can institute a claim won’t delay prescription.

You can claim damages for one or more of the following:

  • medical expenses (past, current and future)
  • infringement of your dignity, loss of freedom and pain and suffering
  • loss of support (if someone passes away as a result of an unlawful arrest)

We’ve Got Your Back!

Knowing what to do in a civil claim against the State is essential. LAW FOR ALL’s experienced lawyers can provide legal advice and guidance through the process. Be sure to have a look at LAW FOR ALL’s comprehensive policies. Sign up today!

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