Unlawful Arrest In South Africa: Know Your Rights And Seek Justice


In a country where the rule of law is paramount, facing an unlawful arrest can be a distressing experience. Unfortunately, instances of unlawful arrests can occur, leaving innocent individuals bewildered and seeking answers. If you believe you have suffered from an unlawful arrest in South Africa, understanding your rights and the necessary steps to take is crucial.

To be unlawfully arrested means that you have been wrongfully detained or arrested without sufficient justification. In South Africa, a police officer needs a warrant to enact an arrest, or they need to have witnessed the person committing an offense or believe there are justifiable grounds to make an arrest.

Before making any accusations or seeking legal compensation for an unlawful arrest, understanding what it means to be unlawfully arrested would be a good idea. The following information aims to shed some light on what an unlawful arrest means, what you can do in such situations, and how to seek justice if you have been wrongly detained in South Africa.


What Does It Mean To Be Arrested Unlawfully?

An unlawful arrest occurs when a person is detained without proper legal grounds or in a way that violates their constitutional rights.

In South Africa, as in any democratic nation, everyone is entitled to protection against arbitrary arrest or detention. Section 12 of the Constitution places a duty on the police to prevent, combat, and investigate crimes, maintain public order, uphold the law, and protect and secure all people within the borders of South Africa, including their properties.

However, this duty does not give them unrestricted authority to arrest individuals without a valid reason. The power to arrest must be exercised lawfully, following due process and respecting the arrested person’s rights.

Additionally, while the police are permitted to use force when necessary, it must always be proportional to the circumstances. Any excessive and unnecessary use of force may lead to criminal charges, including assault. The Prevention and Combating of Torture of Persons Act No. 13 of 2013 prohibits torture in any form, and offenders can face imprisonment.


What To Do In The Event Of An Unlawful Arrest

The main thing you need to remember if you are being arrested is that you have rights. Bearing that in mind, remembering these four key points will help you in the long run.

  1. Stay Calm and Comply: While it may be challenging, try to remain calm during the arrest. Avoid any resistance or confrontation with the arresting officers, as this could escalate the situation further.
  2. Identify the Officers: Take note of the arresting officers’ names, badge numbers, and the police station they belong to. This information could be crucial later when filing a complaint or seeking legal assistance.
  3. Assert Your Rights: In South Africa, you have the right to remain silent during the arrest, as anything you say can be used against you in court. Additionally, you have the right to legal representation, and it is advisable to exercise this right as soon as possible.
  4. Gather Evidence: Collect any evidence that may support your claim of an unlawful arrest. This evidence could include witness contact information, video recordings, or any relevant documents. Take note of whether or not you were advised of your rights, whether there was an arrest warrant, any force used during the arrest, etc.


What Are Your Rights When Arrested In South Africa?

In South Africa, you have specific rights protected by the Constitution and the Criminal Procedure Act (No. 51 of 1977) when you are arrested. These rights include:

  • The right to be informed of the reason for your arrest promptly.
  • The right to remain silent and not to incriminate yourself.
  • The right to legal representation of your choice.
  • The right to apply for bail under appropriate circumstances.
  • The right to be brought before a court within 48 hours of the arrest.


What Should You Do If Members Of The SAPS Mistreat You?

While the South African Police Service (SAPS) plays a crucial role in maintaining law and order, there have been unfortunate cases of police misconduct. If you believe you have been mistreated during an arrest or while in police custody, consider the following steps:

  • Document the Incident: Make a detailed record of the incident as soon as it is safe. Write down the date, time, and location of the encounter. If possible, take note of the officers’ badge numbers, names, and unit or station affiliation.
  • Preserve Evidence: Discreetly take photographs or videos of the incident if you can. Visual evidence can be compelling in supporting your account of what occurred. Ensure that the images are clear and show the context of the mistreatment.
  • Seek Witnesses: If some bystanders or passersby witnessed the incident, request their contact information as potential witnesses to corroborate your version of events.
  • File a Complaint: Report the incident to the Independent Police Investigative Directorate (IPID) or the Civilian Secretariat for Police. These entities are responsible for investigating allegations of police misconduct. Ensure you provide them with the detailed information and evidence you have gathered. These entities are responsible for investigating allegations of police misconduct.
  • Follow Up on Your Complaint: After submitting your complaint, follow up with the relevant authorities to ensure they investigate your case. Document all interactions and communication with the investigative bodies.


Unlawful Arrest: Can You Claim Damages In South Africa?

Yes, if you have been unlawfully arrested and can prove that your arrest was without legal justification, you may be entitled to claim damages. In such cases, seeking legal advice from experienced attorneys is crucial.

Facing an unlawful arrest can be a distressing and overwhelming experience, but it’s essential to remember that you have rights protected by the South African Constitution. Our team at Burnett Attorneys & Notaries is here to help you navigate these challenging times and fight for the justice you deserve. Remember, you have the right to a fair and just legal system, even in the face of an unlawful arrest. Please get in touch with us so that we can help can guide you through the justice-seeking process.