“I don’t break the law, so I will never get arrested” a common misconception amongst many. It is the duty of the South African Police Service to promote justice and protect the South African public. Unfortunately, sometimes mistakes are made. People may be wrongfully arrested or detained, and their basic rights may be violated.
So that you can protect yourself, it’s important to know exactly what your legal rights are if you’re arrested or detained.
The Criminal Procedure Act, Act No. 51 of 1977 (CPA) regulates the area of criminal justice in South Africa. Many believe that for an arrest to be lawful, the person making the arrest needs to be in possession of a warrant of arrest. This is another misconception. Arrests can be made without a warrant and are lawful if they are in accordance with the provisions of Section 40 of the Criminal Procedure Act.
In the case of an arrest which is effected by a warrant, the person getting arrested must demand a copy of the warrant to be produced, however on the other hand, the CPA has an expansive list of circumstances which allows for arrests to be made without a warrant.
Undermentioned are some of the circumstances listed under Section 40 of the Criminal Procedure Act which allows for arrests to be made without a warrant: –
- Where a police officer has reasonable suspicion that you (the suspect) committed an offence in terms of Schedule 1 of the Criminal Procedure Act.
- Where the suspect has in his/her possession house or car breaking implements.
- Where a person wilfully obstructs a peace officer from carrying out his duties
- Any person who is reasonably suspected of having committed an act of Domestic Violence Act, 1998.
What are your rights as an arrested person?
- You have the right to be informed of the charge/s against you, for which you are 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.
- You have the right to promptly informed of your right to 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.
- You have the right to be informed of the consequences of not remaining silent.
- You have the right to legal representation. If you’re unable to afford this service, legal counsel will be provided by the state.
- Once arrested and detained you have a right to be brought to court as reasonably possible but not later than 48 hours after the arrest. If the 48 hours expires outside ordinary court hours the accused must be brought before a court no later than the end of the first following court day.
- You have the right to 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.
What are your obligations as an arrested person?
- You are obliged to furnish the police with your full name, identity number and residential address.
It is important to remember that when getting arrested, do not resist the arrest, always try to keep a calm disposition and never offer a bribe to the arresting officer. Once arrested, you will be taken immediately or as soon as reasonably possible thereafter, to a police station for the charge to be processed. An arrested person can be released from custody if the offence is minor. In this instance the police will release you on warning or on police bail. 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
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 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. Please contact our offices should you require legal assistance in this regard.
By RENITHA BECHAN