How to Sue the SAPS

The police and the country’s security services are there to protect us. For the most part, they do a commendable job, despite the many challenges they face.

However, members of the South African Police Service (SAPS) sometimes act wrongly. This can have devastating consequences for those who get caught up police-related incidents.

Increase in the number of claims against wrongful police action

Police officers can make hasty decisions in the heat of the moment that could result in police violence or unlawful behaviour. The abuse of power, poor training and incompetence can also result in incidents that infringe on the rights of citizens.

These incidents often are accompanied by physical or psychological harm.

In 2018, the High Court in Mthatha ordered the Minister of Police to pay R560,000 in damages for the unlawful arrest and subsequent detention of a Grade 8 boy.

The number of claims against SAPS has increased in recent years. In 2018/2019, 473 claims against the Eastern Cape Police totalled R39 million, compared to R34 million during the previous year.

Already in 2017, Parliament had expressed concern over the increased number of claims against the police nationally, totalling R14.6 billion of which R290 million was paid out.

Most of the cases involved illegal arrest, unlawful detention and police shootings.

What constitutes a valid claim against the police?

The following incidents can be grounds for a claim against the police:

• injury or death while in police custody, or as a result of police actions
• loss of income due to unlawful detention
• loss of support, if a breadwinner dies as a result of a police incident
• rape by a police officer (on or off duty) or while in police custody
• torture or assault by police or assault while in police custody
• the discharge of a firearm
• unreasonable loss of freedom
• medical costs for physical, emotional or psychological harm as a result of unreasonable police actions
• arrest without justifiable cause
• malicious persecution
• impairment of dignity.

Note that police may arrest citizens without a warrant only if they witness a crime or have reasonable suspicion that an individual is guilty of a Schedule 1 offence, such as rape, robbery or arson.

What to do if you’re arrested by the police

Do not resist arrest, even if you are innocent of any wrongdoing. Do not act aggressively toward the police. Do not attempt to flee or pay a bribe.

These actions could put you at risk. They could also negatively affect your chances of winning a subsequent claim against the police.

Procedure for lodging a complaint against the police

The claim process should begin as soon as possible after a police incident – so contact a suitably qualified attorney as soon as you can.

Because a police claim is a type of claim against the state, specific rules and time limits apply.

Your attorney will need to notify the Minister of Police of your intent to pursue a personal injury claim. Typically, this must happen within six months of the incident.

If the six-month limit has lapsed, it may still be possible to lodge a complaint. The courts may grant condonation – special permission – to proceed if there are good reasons for this.

Ninety days after serving the notice of the intended legal proceedings, a civil action can be instituted against the Minister.

A prescription period, typically of three years, applies. In other words, a claim against the police must be submitted within three years of the incident, or it will lapse.

What information do you need to lodge a claim?

The more information and details you have about the incident, the better your chances of being successful in your claim. This includes:

• the name(s) of the offending officer(s)
• the names and contact details of witnesses to the incident
• reports from medical professionals
• receipts for medical costs or other costs related to the incident
• photographs of any visible injuries or footage of the incident.