What Is An Unlawful Arrest In South Africa?
Everyone is familiar with the concept of being arrested. The police will tell you to place your hands on the car and spread your legs, then they’ll read you your rights and give you a smelly hoodie to wear. But why did this happen? How can it be that someone has just told you that you can’t leave? What exactly is an unlawful arrest, and how does it differ from a lawful one? These are some questions that many people will have when they are arrested by the police in South Africa. Here’s everything you need to know about unlawful arrests:
What Are The Legal Requirements For An Arrest To Take Place?
An arrest is a legal process where a person is detained by police and held in custody until they are charged with an offence.
Detention, on the other hand, refers to the period of time during which a person may be legally detained by police. During this time, they can be questioned but not formally arrested.
There are several legal requirements that must be met before an arrest can take place:
- There needs to be sufficient evidence for the police officer’s belief that you have committed an offence;
- This belief should be based on something more than just “a hunch”;
- The officer must not only believe that you have committed an offence but also believe that there is enough evidence against you at this stage (what lawyers commonly refer to as “probable cause”); and
- If any of these conditions do not exist, then your arrest will probably contravene Section 49(1)(b) of South Africa’s Constitution (which states: “Everyone has right not to be arrested except on warrant issued by the public prosecutor”).
Your Rights When Under Arrest:
- You have the right to remain silent.
- You have the right to legal counsel.
- You have the right to be told why you are being arrested.
- You have the right to be searched only if there is a reasonable suspicion of you having a weapon.
What You Should Do After An Unlawful Arrest
If you feel that the arrest was unlawful and you were treated unfairly, there are several ways to take action.
- You can report the unlawful arrest to the police. However, if you do this directly after your release from detention, there is no guarantee that they will accept your complaint or find it in your favour—they may simply say that since it was not reported at the time of arrest, there’s nothing they can do about it now. If you choose this route, make sure to bring all relevant documentation with you so that everything can be sorted out quickly and efficiently when filing a complaint against an unlawful arrest in South Africa.
- You can file a complaint with IPID for an investigation into possible misconduct by police officers involved in arresting an individual without due cause or reason.
- You can also file a complaint with the Office of Public Protector (OPP) if it believes someone has committed maladministration by failing actively prevent misconduct by public officials such as police officers.
You should also consider taking legal action against anyone who has unlawfully been arrested and detained while being investigated on charges related to civil rights violations such as assault or battery; false imprisonment; trespass; or negligence leading up until their release from custody.
What Are My Rights When Arrested In South Africa?
If a police officer arrests you, they must give you reasons for the arrest. You also have the right to remain silent and be represented by a lawyer during questioning. If you are under 21 years old, the police cannot arrest or detain you without a warrant from a magistrate. The police can only search your home if they have permission from a magistrate or if they have reasonable grounds to believe that there is evidence of an offence at your home. In such cases, they may ask for permission to enter your property and search it without making an arrest beforehand.
The South African Police Service follows national guidelines when treating suspects:
- Suspects have the right not to be forced into answering questions;
- Suspects have the right not to sign any documents without first consulting with their legal representative or according to conditions set out in the law.
Book A Consult With Specialist Unlawful Arrest Lawyers In South Africa Today.
Being arrested is a serious matter and you need to know your rights. If you have been arrested, you have the right to an attorney and should not be pressured into answering questions or signing documents without first consulting with a lawyer. If you feel that your rights have been violated during your arrest or interrogation, contact PM Attorneys’ unlawful arrest lawyers immediately. Our law firm has extensive experience dealing with the SAPS, police brutality and Metro Police Officers in relation to unlawful actions across South Africa.