According to the law, a person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the carrying out of a crime. However, there have been cases where the police didn’t conduct a thorough investigation, were negligent or arrested an innocent person, and this would have resulted in them breaking the law or violating the SAPS Code of Conduct.
Here’s what you need to know about wrongful arrest.
Scorpion Legal Protection’s advice
Section 12 of the Constitution protects every South African citizen’s right to freedom and security of their person, including protection against arbitrary detention and detention without trial. So what should you do when a police officer approaches you? The most important thing is to stay on the right side of the law – if you resist arrest, the police have the right to use force to arrest you. Stay calm, don’t be aggressive and offer your co-operation, even if you aren’t in the wrong.
If you feel that you’ve been wrongfully arrested, it’s within your rights to sue an organ of the state like the SAPS. You must 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. You then have 3 years to institute a civil action against the Minister in court. But if you don’t give notice within the 6 months, your claim will prescribe (expire) and you won’t be able to take legal action.
You can claim damages for one or more of the following:
- Medical expenses
- Infringement of your dignity, loss of freedom and pain and suffering
- Loss of support (if someone dies as a result of an unlawful arrest) etc.
Tips:
- If you want to lodge a claim against an organ of the state like the SAPS, you must give notice of your intention to do so within 6 months of the incident.
- A person may be legally arrested when there is warrant of arrest out for them, the officer sees the person committing a crime or has probable cause to believe that the person was involved in the commission of a crime.
If you have a query, follow us on our Facebook page and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.