Being arrested is traumatic and humiliating. If you have been arrested unlawfully, you are probably outraged as well as distressed. But it is important you handle the situation calmly.
What is ‘unlawful arrest’?
An arrest can be made only via a warrant. If the police officer reasonably believes there are grounds to arrest someone, they can do so without a warrant, but they must be able to justify their action. In the absence of sufficient justification, the arrest is unlawful.
What to do if you are arrested unlawfully
Regardless of the situation, you have rights. Remembering these three key points will stop the situation going from bad to worse:
- Keep calm and make notes about what is happening to you. Ask for pen and paper if you have no writing materials with you.
- Remember – you are innocent until proven guilty. The state must prove your guilt; you don’t have to prove your innocence.
- Contact your attorney as soon as possible. You are entitled to legal representation.
Make detailed written notes, if possible, about the incident. Don’t overlook details; they may be more important than you think. Note the following:
- Conversations between you and the officer/s involved – write down what was said.
- Were you shown a warrant?
- Were you advised of your rights?
- Were you advised about your rights to apply for bail and were you allowed to contact an attorney?
- Was force used? Describe this, including whether you thought the force used was excessive.
What are your rights?
You have constitutional rights, whether you are guilty or not:
- You have the right to remain silent
- The arresting officer must inform you of your rights
- You cannot be coerced into making a confession
- You have the right to contact a bail lawyer and to start bail proceedings
- The police have 48 hours (or until the end of the first working day after the weekend) to bring the matter to court
- You have to be charged or told why you’re still being detained or released at the first court appearance
- You have to be released if this is in the interests of justice, subject to conditions (usually bail)
Application for bail
When you are arrested and taken to the police station, you will be given the opportunity to make a phone call. You should use your one phone call to call SD Law & Associates or someone who will contact us for you. When your attorney arrives at the police station, the bail application procedure begins. We will negotiate the bail price for you.
If you are treated badly by the police
If a police officer uses force or threatens the use of force, this is assault. Assault can be verbal, physical or psychological. If you experience this, try to gather the following information:
- Names of the officers involved, including badge numbers and car registration numbers
- Names and contact details of witnesses
- Photographs of your injuries
Report the crime by visiting your nearest police station, reporting the assault and laying a charge against the officer/s involved. If the assault happens in the police station, you must still make the report. Tell your lawyer exactly what you said and how you were treated when you attempted to lay the charge.
You are also entitled to medical attention. The police officer taking your report should instruct the district surgeon to compile a report on your injuries, following examination. (This is done on form J88 and will be included in your police docket.)
What to do if you’re stopped at a roadblock for unpaid fines
You may only be arrested for an unpaid fine if a valid arrest warrant has been issued. You must be advised of the reason for your arrest and you are entitled to see a copy of this warrant at the time. If the warrant isn’t available, you can bring a civil case against the police. You may receive compensation if the arrest or subsequent detention proves to be unlawful.
Other legal options
A charge of wrongful arrest is a criminal proceeding. You may also choose to make a civil claim for damages against the officers and against the Minister of Police for damage to your reputation, loss of income (while you are in prison) and physical injury (if appropriate). You can also lodge a complaint with the Independent Complaints Directorate.
Visit www.ipid.gov.za/lodge_complaint/lodge_complaint.asp
This is a process that requires legal expertise and we can help.
Contact us for expert advice on unlawful arrest or how to lay a civil claim.
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