I was wrongfully arrested and detained, can I seek compensation for loss of income?

The long answer

A person who was wrongfully arrested and detained, and the case was later withdrawn, has the right to seek compensation from the Minister of Police.

As you probably know, this is the process for opening a case against the police:

1. A formal written notice of your intention to sue must be delivered to the Minister of Police within six months after the date of your release.

2. A civil action or summons must be filed in court within three years after the date of your release.

A civil case against the Minister of Police can be launched in either the magistrates court or the high court, depending on the amount you want to claim. (A district magistrate’s court can handle civil claims up to R200,000; a regional magistrate’s court can handle claims between R200,000 and R400,000, and the High Court must handle claims over R400,000.)

The amount of compensation is decided on a case-by-case basis. This would include:

1. How long you were detained in prison - over a month is considered a significant amount of time.

2. The conditions in the cell – was it overcrowded, dirty?

3.  The trauma (painful experience) of the detention, the humiliation and damage to your reputation.

4. The income you lost through being detained in prison.  

For your claim to succeed, it must be proved that the arrest and detention was unlawful. These are the key factors:

• Lack of reasonable suspicion: that the police did not have reasonable grounds to believe that a crime had been committed.

• Procedural failures: that the police did not inform you of the reason for the arrest, or that they did not have a warrant to arrest you when one was needed.

• Improper detention: that they failed to release you on warning or bail when that would have been appropriate.

De Rebus, in an article about unlawful arrest, says that the authority to arrest a person can only be used when the police officer has applied his mind and considered whether he is using his power to arrest lawfully. The purpose of an arrest is to bring the person before a court of law. It is up to the police officer to prove that he was arresting a person lawfully. De Rebus says that the test here is that the police officer should know that arrest is not his only option. He has three options: he could issue a summons, give a warning or arrest the person. He has to consider all three before making an arrest. 

De Rebus says that Section 50 of the CPA kicks in immediately after the arrest: the police officer must inform the suspect of their right to institute bail proceedings, and if not charged, or if bail is not granted, the suspect should be brought before a court of law as soon as reasonably possible, but not later than 48 hours after the arrest.

Sekgala & Njau Attorneys ask “Can an arrest of a person be lawful, but the detention of same person be unlawful?  The answer is yes. The purpose of an arrest is to secure the accused before court to answer the charges put to them.”

They go on to say that in some instances, an arrest may be lawful, but it would not be in the interests of justice for the person to be detained until he is brought to court. Police officers can release people on warning or on police bail depending on the nature of the offence. So it would be unlawful for the police officer to detain an accused person if they could release him on a warning or police bail.

Section 59 of the Criminal Procedure Act (CPA) of 1977 allows police officers the right to grant bail for minor offenses before a first court appearance. The CPA does not allow police bail for serious offenses listed in Schedule 2 (Part II or III), such as murder, rape, robbery, and kidnapping. These offences require court-ordered bail.

I am assuming that you managed to deliver the formal notice to the Minister of Police within the specified six months after your release date, in spite of your diagnosis of spinal TB and going to hospital?

I am also assuming that you have already contacted a lawyer and lodged a civil claim case for compensation against the Minister of Police for wrongful arrest and detention? 

If you cannot afford a lawyer, you can ask Legal Aid to represent you. Legal Aid is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

Email: [email protected]

Tel: 0800 110 110 (Monday to Friday from 7am to 7pm)

Please Call Me: 079 835 7179  

You need to get a Withdrawal of Charges certificate from the NPA (National Prosecuting Authority) as this will be vital evidence in court.

In terms of losing your job of 15 to 17 years: was this due to the arrest and detention? Or was it to do with your spinal TB diagnosis and hospitalization? 

Were you a member of a pension or provident fund when you were working there? If you were, have you been paid out? And if you lost your job because of the spinal TB, is there a possibility of receiving a disability pension on medical grounds?  

Wishing you the best,
Athalie