What to do if you are arrested
How to get justice if you were unlawfully arrested and convicted for a crime you did not commit
MANY South Africans have unfortunately gone through and are still going through the reality of being falsely arrested for something they did not do. Experts, Sboniso Mkhize, the director of SB Attorneys based in Johannesburg, and Sello Baloyi, an attorney at SE Baloyi Incorporated, also based in Johannesburg, share information to protect you from standing accused of something that could destroy your life.
THE DAMAGE OF WRONGFUL ARRESTS
Sboniso says wrongful arrests have cost the state hundreds of millions of rands in recent years.
“Courts deal with many civil claims against the minister of police daily for unlawful arrests and detention. In 2016, the police ministry revealed to Parliament that government spent R854 million in damages, compensating people who were unlawfully arrested since 2009,” says Sboniso.
If you are wrongfully arrested, the damage and trauma you suffer as a result can’t be measured as the compensation often includes pain and suffering, loss of earnings as a result of the unlawful arrest and injury to reputation.
Sello says there are far too many wrongful arrests in this country.
“This, in my opinion, is as a result of a lack of proper investigations by the police before effecting an arrest, along with ignorance, negligence and recklessness by the officers. It is also a norm for officers to arrest people without a warrant, which also leads to most arrests being unlawful,” Sello says.
WHAT IS A LAWFUL ARREST?
Sboniso says an arrest is lawful if it is in accordance with the law.
“Section 40 of the Criminal Procedure Act 51 of 1977 empowers the police to arrest anyone with or without a warrant if they reasonably suspect that such a person has committed a crime, except for
minor crimes that do not warrant arrest,” says Sboniso.
“In a nutshell, if the police witness a crime being committed such as murder or assault or reasonably suspect that a person has committed a crime, then by law, they can arrest that person. Generally if a person is accused of committing a serious crime such as rape, murder, corruption and others, police can arrest that person with or without a warrant. There are rare instances where someone who is accused of a crime agrees to hand themselves over to the police.”
UNDERSTANDING AN UNLAWFUL ARREST
Sboniso says it is important for you to know the difference between a lawful and unlawful arrest in order to protect yourself.
“An arrest is unlawful if it cannot be justified according to the law,” says Sboniso.
“An arrest constitutes an interference with the liberty of the individual concerned and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”
Sboniso says if you are arrested without any evidence linking you to the crime you are accused of, such an arrest is unlawful. This is not to say that whenever you are found not guilty in court that your arrest was unlawful.
“There are instances where a person is arrested and on face value, there is a case to answer in court. If a person is found not guilty in court owing to various factors such as poor witnesses, poor quality of evidence or procedural irregularities, it does not necessarily mean that their arrest was unlawful. At the time of the arrest, the police officer has to be reasonably satisfied that there is a reason to believe that you committed a crime,” he adds.
The South African Police Service (SAPS) provides some of your rights when being arrested: You have the right to be informed of the charges on which you are being arrested. Any information you give may be used against you in court.
You have the right to be informed of the reason of your arrest.
The police must inform you of these rights in a language you understand.
You have the right to consult with an attorney of your choice and if you don't have one, the state will appoint one for you.
You are presumed innocent until proven guilty.
FIGHTING AN UNLAWFUL ARREST
Sello says the procedure to challenging the law and being compensated as a result is not that simple and that it is one that most definitely needs the services of an attorney.
“In terms of the law you must send a letter of demand, which serves as notice to take legal action against the minister of police. This must be done within six months from the day you have knowledge of the claim. Thereafter, you must issue summons in court within three years. The court process may take a minimum of six to nine months to finalise, but due to the number of matters in our courts, this may drag for even three years,” says Sello.
“By nature, being arrested deprives you of your freedom, so whenever someone is arrested, such an arrest has to be lawful,” Sboniso further explains.
“If the police arrest you and the National Prosecuting Authority (NPA), which has the power to institute criminal proceedings on behalf of the state, decides not to prosecute owing to a lack of evidence linking you to the crime you were arrested for, you can then can sue the minister of police for damages.”
THE DAMAGE AND TRAUMA CAN'T BE MEASURED