Your Rights

UNLAWFUL ARREST
Introduction

We live in a country where crime is rife. We need our police force to be proactive and to sometimes make split-second decisions. However, when the police fail in their duties to conduct adequate investigations into an alleged crime, the consequences can be dire. A great travesty of justice is done when an innocent person is arrested. It is important for both police officers and ordinary citizens to know their rights and responsibilities when it comes to arrest and detention.
Police management have arrest targets and these statistics are misleading and as a result amounts to fruitless and wasteful expenditure. We all know about this situation that is endemic in South Africa.

When you are arrested your liberty to freedom which is a basic human right, is infringed. Arresting must only be done where necessary. In some instances police arrest people without caring about the consequences of their actions. Many of these arrests are a result of poor police training, knowledge of the law or a lack of foresight.

Human Rights

Section 10 of the Constitution states that “everyone has inherent dignity and the right to have their dignity respected and protected.”
Section 12 states that:
“Everyone has the right to freedom and security of the person, which includes the right:
  – not to be deprived of freedom arbitrarily or without just cause;
  – not to be detained without trial.

Arrest

Arrest constitutes one of the most drastic infringements on the rights of an individual. 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 commission of a crime. When approached by a police officer:

  • Remain calm;
  • Do not flee or allow your first response to be an aggressive one;
  • Offer your co-operation to the officer;
  • Do not resist arrest, and
  • Never offer to pay a bribe.

Should arrest be resisted, then reasonable force may be used by the officer to affect the arrest. Any arrest without a warrant which is not specifically authorised by law is unlawful. Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) states:
“Arrest by peace officer without warrant. – (1) A peace officer may without warrant arrest any person –
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody…”

Schedule 1 lists the offences in respect of which a police officer may arrest a person without a warrant.
The main purpose of an arrest is to secure the attendance of the accused at court or to protect the victim and public from a dangerous person.

In order to provide guidance to police officers and other role players with regard to the right of police officers to arrest and detain certain persons in terms of section 40(1)(b) of the CPA, the Minister has issued Standing Order ((G) 341 which deals with arrest and the treatment of arrested persons.

Arrest is a drastic measure which should not be used if there are other effective means of ensuring that an alleged offender could be brought to court. An arresting officer must prefer to secure the accused’s presence at court by way of Summons. If the accused is someone who the arresting officer believes will abscond, or attempt to hamper the investigation, then they should obtain a warrant, or if they cannot, and the matter is urgent, then, and only then, if they have reasonable suspicion that the accused has committed a Schedule 1 offence, should they arrest the accused.

The arresting officer’s suspicion must be reasonable. The test as to whether the arresting officer’s suspicion is reasonable must be assessed objectively by proper investigation into the essentials relevant to each particular offence.

The dilemma faced by arresting officers can be summarised as follows:
“The power of arrest without a warrant is a valuable means of protecting the community. It should not be rendered impotent by judicial encrustations not intended by the legislature. On the other hand the law is jealous of the liberty of the subject and the police in exercising this power must be anxious to avoid mistaking the innocent for the guilty. Police often have to act on the spur of the moment with scant time to reflect, but they should keep an open mind and take notice of every relevant circumstance pointing either to innocence or to guilt.”

The arresting officer will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”
An arresting officer’s suspicion must also be his own. The arresting officer cannot rely on the suspicion of somebody else. If no exigent circumstances exist, he/she should preferably seek corroborative evidence before making an arrest. An arrest is not a substitute for good police work.

Where the case is somewhat trivial an arrest would clearly be irrational. If the person under suspicion of a crime has a fixed and known address; in such cases, it is generally desirable that a summons be used.

The court did however take the view that an arrest is not necessarily unlawful where the arresting officer prefers an arrest where the use of a summons would have been more appropriate. However, it is submitted that the judgment in no way eliminates the duty on an arresting officer to ensure that he has satisfied himself as to the facts before him or her in order to form a reasonable suspicion before effecting an arrest.

Your Rights when Arrested

Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. If you find yourself arrested unlawfully it is important that you know your rights and the appropriate course of action.
If you do not resist arrest and the police uses actual force or unlawfully threaten the use of force on any individual, it constitutes assault.
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. If anyone other than SAPS take your photograph without your consent to do so, you can lay a charge with SAPS against any individual who does so.

Making a note (mental or written if possible) of the following concerning your intraction with the police:

  • The precise events and conversations that occur between the representative of the law and yourself
  • The degree of force used in effecting the arrest
  • Whether a warrant was shown
  • Whether you were informed of your rights on arrest, and
  • Whether you were allowed to contact a bail attorney.

Inflaming the situation with the police will not help your case no matter how aggrieved you may feel at the treatment you receive.

Once arrested you are required to tell the police your home address. A police officer may not request any further information from you including in respect of your activities or organisations you are involved with. Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been arrested unlawfully, for example in a protest situation, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

  • be informed of your rights as well as the consequences of not remaining silent (- remain silent implies that you were not forced to make a confession that could be used against you);
  • be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last);
  • be charged, or informed of the reason for continued detention, or released at the first court appearance;
  • be released if the interests of justice permit, subject to conditions, e.g. bail; and
    – be informed of your right to institute bail proceedings;
  • 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 counsellor, and chosen medical practitioner;
  • – be presumed innocent until proven guilty.
BAIL

For minor offences police bail can be granted or the police may release you on a warning. In the case of police bail the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail. After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.

ASSAULT BY A POLICE OFFICIAL

Step one: Collect relevant information

If possible, obtain important information at the scene of the assault, such as:

  • Names of the offending police officers
  • Names and contact details of any witnesses
  • Photographs of all your injuries
Step Two: Report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with being arrested unlawfully.

Step Three: See a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.
If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step Four: Document the story

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. When arrested unlawfully, be as specific as possible in detailing the assault and the injuries you sustained.

Other legal options

Once you lay a charge against an offending police officer at the police station, you institute criminal proceedings. However, you are also able to institute a civil claim by instituting an action for damages against the offending police officers and the Minister of Police. You will need to consult with a lawyer in order to begin these proceedings.
You can lodge a complaint with the Independent Complaints Directorate.