What can I do if I was wrongfully arrested?

The long answer

Police officials and other empowered officials may arrest without a warrant in the circumstances set out in section 40 of the Criminal Procedure Act, 1977. These circumstances include:

• when any person commits or attempts to commit an offence in the presence of that police officer;

• when the police officer reasonably suspects any person of having committed a Schedule 1 offence (other than the offence of escaping from lawful custody);

• when any person has escaped or attempts to escape from lawful custody.

As you know, you must be informed of the reason that you are being arrested, and you must be brought to court within 24 hours of your arrest, except that the officers who arrested you can apply for you to be held for 48 hours before appearing in court.

You must be told of your right to remain silent and of your right to legal representation. If you can’t afford a lawyer, the state must provide one at their cost. You have the right to communicate with and be visited by your spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner.

In court you must be presumed innocent until proven guilty. That means that the onus is on the state to prove your guilt beyond a reasonable doubt. If a false charge is being made against you, you have the right to challenge your arrest in court. Briefly.co.za lists the following instances when an arrest is considered unlawful:

• When it is done for personal gain;

• Arrest by incompetence;

• Apprehending a wrong person;

• Arrest based on race;

• Arrest that lacks a probable cause.

Briefly also says that you can sue the police department for this type of arrest. They say that you can claim damages for loss of income, embarrassment, use of excessive force and injuries (and of course, death), mischievous trial and wrongful detention.  

Our Constitution gives everyone the right to human dignity in Section 10, and the courts must take the right to human dignity very seriously. Section 12 of the Constitution gives everyone the right to freedom and security and not to be deprived of that freedom without just cause and without a trial. And, as noted above, you can sue for damages if you can prove your arrest was wrongful.

Though in all fairness, it must be said that very few police officers are brought to book for unlawful arrest. Edwin Naidu, in a 2020 article for IOL (Sunday Independent) says that R535-million was paid out by SAPS in wrongful arrest claims but, on average, only 120 police officers were found guilty, and in most cases fined for misconduct. And he quotes Gareth Newham of the Institute of Security Studies (ISS) as saying that in more than half the cases, when it has been recommended that an officer be dismissed for wrongdoing, the decision is overturned after an appeal to the police commissioner. 

I imagine that you have already gone to the head of your police station to explain that the charge you were arrested under is false. If you are unhappy with the service you received, you can also call the toll-free SAPS Service Line: 0860 130860.

The SAPS website says: Although it is advisable for any person to lodge a complaint at respective local police stations, when all attempts to get assistance from a station or provinces have failed you, you can contact the National Service Complaints Call Centre on 0800 333 177 and follow the voice prompts and selections of your choice. In addition you may also use the following contact options:

• Email complaintsnodalpoint@saps.gov.za

• WhatsApp & Telegram 082 759 2590

• MYSAPS Application by selecting the "Service Complaints" option

If the activity involves an offence of R100,000 and upwards, you can report it to the Directorate of Priority Crime Investigation (Hawks). One of the common law offences under Section 34 of the Prevention and Combating of Corrupt Activities 2004 (PRECCA) is fraud: "which consists of the unlawful and intentional making of a misrepresentation which causes actual prejudice or is potentially prejudicial to another". But this offence must entail R100,000 or more to be reported to the Hawks.

If it is, you can go to or contact the Directorate for Priority Crime Investigation (DPCI) office through the email or fax number provided on the website, and provide the following compulsory information to the Central Reporting Office:

1. Identification

2. Contact details

3. Position of Authority

4. Allegation/s

5. Details of person/s involved in the alleged commission of the offence/s.

The following contact details may also be of use to you: 

• South African Anti-Corruption hotline: 0800 43 43 73

• Special Investigating Unit Whistle-Blower Hotline: 0800 037 774

• Presidential hotline: 17737

• Public Protector Hotline: 0800 11 20 40

• Directorate of Priority Crime Investigation (Hawks): 012 846 4590

• Independent Police Investigative Directorate: complaints@ipid.gov.za

• Anti-Corruption Hotline: 0800 701 70

• Crime Stop: 08600 10111

• Gauteng Ethics Hotline – toll-free number from a landline: 080 1111 633; SMS call back: 072 595 9139

• Corruption Watch: 0800 023456

Wishing you the best,
Athalie