Right when arrested

It's the duty of the South African Police Service to promote justice and protect the South African public. In seeking to meet this duty, the police made a total of 1 707 654 arrests in 2015 alone.

Unfortunately, sometimes mistakes are made. People may be wrongfully arrested or detained, and their basic rights may be violated.

So you can protect yourself, it's important to know exactly what your legal rights are if you're arrested or detained.

What the law says

The Criminal Procedure Act (CPA) provides strict guidelines about when a person may be arrested. It gives police the right to arrest and detain an individual on the basis of a warrant of arrest, or if an officer witnesses that person committing an offence.

Under the CPA, it's up to the National Prosecuting Authority of South Africa to determine whether charges against someone are valid. In other words, it's not the job of individual police officers to weigh evidence or explanations provided to them at the time of an arrest.

Know your rights

If you're arrested or detained in South Africa, you have the right to:

  • know why you're being arrested
    The arresting officer is required to inform you of the reason for the arrest – either at the time of the arrest or immediately after. If the police have a warrant for your arrest, you can request a copy of this document.
  • remain silent
    Under South African law, you're innocent until proven guilty in court. For this reason, you're under no obligation to give information to the police.
  • seek legal counsel
    Before making a statement to the police, you have the right to speak to a legal representative. If you're unable to afford this service, legal counsel will be provided by the state.
  • be brought before a court within 48 hours of arrest
    Thankfully, the days of widespread detentions without trial are over in South Africa. Legally, you can't be held without trial for longer than two full days.
  • be held in conditions that are consistent with human dignity
    Once you've been detained, you have the right to accommodation, food, and medical treatment that meet basic standards.
  • a fair, public trial before a court
    Within 48 hours of your arrest, you should be tried by an impartial court, in a language you understand.

It's worth noting that not all individuals have the right to bail. If the charges brought against you suggest that you could pose a danger to the public or a flight risk, the police have the right to keep you in custody until your court date.

Making a claim for wrongful arrest and detainment

Over recent years, there has been a substantial increase in civil claims filed against the the South African police.

For the 2014/15 reporting period, these claims amounted to more than R26 billion in damages. They included claims for wrongful arrest and detainment, as well as for police brutality, both in and out of custody.

If you're the victim of unlawful arrest or mistreatment while you're in police custody, you may be entitled to claim compensation.

Damages for which you can claim against the SAPS may include:

  • loss of income while in police custody
  • past and future medical/hospital expenses
  • general damages for pain and suffering
  • loss of support if you're the dependent of the accused and this person dies during arrest or in custody.

If you feel you have a valid claim against the SAPS for unlawful arrest or detainment, the best advice is to seek competent legal counsel, as soon as possible.

At DSC Attorneys, we have extensive experience in unlawful arrest and detainment cases. Our highly qualified attorneys can guide you through the process of preparing and filing a claim, and represent your interests in court.

We work on a "no win, no fee" basis. Contact us to discuss your needs and we'll be happy to assist.

Contact us to see if you have a claim