By: William Mogale Sekgala 7 March 2022
ARREST & THE CONSTITUTION OF SOUTH AFRICA:
Every person has the right to freedom and security of her person which right includes the right not to be deprived of freedom / liberty arbitrarily or without just cause. Section 35 of the Constitution provides for the rights of the arrested, detained and accused persons including the right to be released if the interests of justice permit and upon reasonable conditions and to human conditions of detention.
When a person is arrested, the aforementioned human rights are affected and the question that follows is whether the conduct of the person effecting the arrest is lawful and within the bounds of the law.
The police have extensive powers that the courts must be astute in standing judiciously resolute against any abuse thereof.
ARREST WITHOUT A WARRANT:
Although private individuals (citizens) may make an arrest, such is normally the duty of police officers authorized thereto by virtue of their office. Police officers normally make arrests after having obtained a warrant authorizing them to do so. It is however not the only way that police officers may make arrests. Police officers are also authorized to make an arrest without a warrant by Section 40(1) of the Criminal Procedure Act 51 of 1977 which will be the focus of this article.
In summary, Section 40(1) authorizes police officers to make an arrest in cases wherein they reasonably suspect someone has committed an offence specified in Schedule 1 of the Criminal Procedure Act and crimes that are committed in their presence. The list of offences that police officers may make arrests for is lengthy for the purposes of this article. However, it is important to note that, in most of the listed offences (i.e murder, rape, kidnapping, public violence etc), the police officer must have a reasonable suspicion that the offence was committed.
WHO HAS TO PROVE THE LAWFULNESS OF AN ARREST?:
An arrest of a person constitutes an interference with the liberty of the individual concerned, it is therefore fair and just to require the person effecting the arrest to bear the onus of proving that his action was justified. Therefore, the onus to prove that an arrest is lawful rests with the police officer making the arrest.
In determining whether an arrest without a warrant is unlawful, l an inquiry [factual] must be made in that the police officer must have had a reasonable suspicion that a suspect has committed an offence and such test is an objective one – that of a reasonable person. Would a reasonable person in the place of the police officer make an arrest?
The arresting officer must have exercised his discretion as to whether the suspect must be arrested or not and, in this regard, his suspicion must be realistic and well-founded having regard to the circumstances. A police officer cannot merely rely on allegations or information provided to him to effect an arrest without applying his mind to the matter at hand.
LIABILITY (WHO IS SUED?):
When an arrest is unlawful, the Minister of Police is sued in his capacity as the executive head responsible for the South African Police Services. The Minister is vicariously liable for the conduct of the police officers acting in the course of their employment.
WHAT MAY YOU CLAIM FOR?:
Some of the heads of damages that a person may claim for compensation from the Minister of Police are:
- Loss of enjoyment of amenities to life.
- Pain and Suffering (if the person arrested was assaulted by the police);
- Deprivation of freedom and discomfort;
- Contumelia (insult, violence and abuse)
- Mental anguish and psychological trauma.
The above heads of damages are called general damages and are not easily quantified as they are attached to a person’s feelings. As such the courts are guided by previously decided cases to come to an amount for compensation that would be fair and just given the circumstances of the case.
UNLAWFUL DETENTION:
It is important to note that if an arrest is unlawful then it automatically means that the detention of such a person is also unlawful.
Can an arrest of person be lawful, but the detention of same person be unlawful? The answer is yes. The purpose of arrest is to secure the accused before court to answer the charges put to them.
In some instances, an arrest may be lawful, but it would not be in the interests of justice that such a person be detained until he is brought to court. Police officers are empowered to release accused persons on warning or on police bail depending on the nature of the offence. So, it is unlawful for a police officer to detain an accused person where he can release him on warning or police bail.
A claim of unlawful arrest is normally accompanied by a claim for unlawful detention coupled with a claim for pain and suffering as a result of assault where applicable.
Lookout for our article on bail which is to follow this one!
If you have been wrongfully arrested, detained and assaulted in the hands of the police officers contact us and our team at Sekgala and Njau Attorneys will assist you.