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

Move! - - FRONT PAGE - By Bonolo Sekudu

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.

YOUR RIGHTS

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

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