How can I get compensation if I was wrongfully arrested?

The long answer

Police officials are only allowed to arrest you without a warrant in the following circumstances set out in section 40 of the Criminal Procedure Act, 1977:

• 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: Schedule 1 offences are serious offences including public violence, murder, culpable homicide, rape, assault, sexual assault (against child, sexual trafficking), bestiality, robbery, kidnapping, child-stealing, arson, malicious damage to property, breaking and entry, fraud, forgery, conspiracy;

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

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 state must 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.

mashitishoattorneys.co.za says that arrests can be considered unlawful 

• if the arresting officers did not have probable cause to believe that you committed a crime

• if they used excessive force during the arrest 

• if you were detained for an unreasonable amount of time. (It seems to me that four months in detention is certainly an unreasonable amount of time…)

A police officer may only arrest a person without a warrant if there is probable cause – which is a reasonable belief that the person has committed a Schedule 1 crime. A warrant is a court order authorising the police to make an arrest.

Briefly.co.za lists the following instances when an arrest is considered unlawful:

• When it is done for personal gain;

• Arrest by incompetence;

• Arresting the wrong person;

• Arrest based on race;

• Arrest that lacks a probable cause.

The SAPS website says that you have the right to:

• Be informed promptly of the reason for being detained.

• The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.

• Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.

• Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.

• Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counselor, and chosen medical practitioner.

• Be presumed innocent until proven guilty. 

SAPS says that after an arrest you will, more often than not, be detained at a police station. In detention you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search. The police have the right to take your fingerprints and take photographs.

criminaldefenceattorney.co.za say you should make detailed notes about the following:

• Conversations between you and the officer/s involved – write down what was said.

• Were you shown a warrant?

• Were you advised of your rights?

• Were you advised about your rights to apply for bail and were you allowed to contact an attorney?

• Was force used? Describe this, including whether you thought the force used was excessive.

You can open a case of wrongful arrest at your nearest police station, and you can also call the toll-free SAPS Service Line: 0860 130860.

SAPS says that 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

You can also report it to the Independent Police Investigative Directorate (IPD) if the police fail to assist you. You can contact the IPID on 012 399 0000.

You can also contact the Western Cape Police Ombudsman if you are not assisted. These are the contact details:

Tel: 021 83 0669

Address: 6th Floor, Waldorf Building, 80 St George’s Mall, Cape Town 8001.

Briefly.co.za also 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. If you can prove your arrest was wrongful, you can sue for damages. 

Mashitishoattorneys.co.za say that if you believe your arrest was unlawful, you may be able to claim compensation for wrongful arrest. They say that you can sue the police (SAPS) or the Minister of Police, but you must give written notice of your intention to do so within six months of the claim arising. This notice must be delivered by hand or by email.

They say you have three years to institute a civil action against the Minister of Police in court, starting 90 days after you give notice of your intention to go to court. The Minister could be held liable for bodily injuries which could include past and future medical expenses, loss of earnings, pain, suffering and disfigurement.

Unfortunately, in your case, as the wrongful arrests happened in 2018 – six years ago – you may have left it too long to lodge a claim. 

You could ask for advice from Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer, or the Black Sash which is an organisation that gives free paralegal advice.

These are their contact details:

Legal Aid 

• Email: communications2@legal-aid.co.za

• Tel: 0800 110 110 (Monday to Friday 7AM - 7PM) 
  079 835 7179 (Please Call Me) 
   

The Black Sash

• Email: help@blacksash.org.za 

• Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

Wishing you the best,
Athalie