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Once an arresting officer affects an arrest on an individual, the arresting officer must bring the arrestee before a court as soon as reasonably possible and at least within 48 hours (depending on court hours). Once that has been done, the authority to detain a suspect has been exhausted. Any further authority to detain a person further is then within the discretion of the court.

The right of a suspect or accused to be brought before a court of law as soon as possible is not only entrenched in case law but also given Constitutional protection. In terms of Section 35 of the Constitution, everyone has the right at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and to be released from detention if the interests of justice permit, subject to reasonable considerations. Section 12 of the Constitution goes further and deals with freedom and security of a person and the right not to be deprived of freedom arbitrarily or without just cause.

The deprivation of an individual’s liberty and freedom is indeed a serious matter and the courts often consider the circumstances under which the deprivation of liberty took place, the conduct of the defendants and/or the arresting officials and the nature and duration of the deprivation or arrest.

What is an unlawful arrest? Is an arrest without a warrant considered unlawful?

The requirements for a lawful arrest without a warrant are set out clearly in the Criminal Procedure Act. A peace officer may without a warrant, arrest any person who commits or attempts to commit an offence in his presence and/or whom he reasonably suspects of having committed an offence, other than an offence of escaping from lawful custody. Therefore, an official may arrest or detain a suspect if he/she satisfies him/herself as to the above requirements.

What if an individual is detained and subsequently prosecuted based on no reasonable grounds?

If an individual is to succeed with a claim for prosecution based on no reasonable grounds, i.e. malicious prosecution, a person must prove:

  1. That the defendant instituted the proceedings;
  2. That the defendants acted without any reasonable or probable cause;
  3. That the defendants acted with the intention to injure the individual concerned; and
  4. That the prosecution has failed.

Therefore, the defendant must thus not only have been aware of what he/she was doing in instituting the prosecution, but must at least have foreseen the possibility that he/she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his/her conduct.

In cases of unlawful arrest and detention, what can be claimed is often a difficult question confronted by our courts. The facts of each particular case need to be looked at as a whole and few cases are directly similar or comparable to each other. Previous cases are a useful guide to what other courts have considered being appropriate but no set of facts carries higher value than others. There is no “one-size-fits-all” formula for the determination of an amount to be claimed when dealing with infringing rights such as dignity, freedom and security. Such determinations are ultimately in the discretion of the presiding officers, who must determine the quantum by taking into account all relevant factors and circumstances according to what is deemed just and fair.

It must be emphasised that the purpose of the amount of damages claimed is not to merely enrich the aggrieved party, but to offer some much-needed comfort and/or solace for his/her injured or infringed rights. It is therefore important that the courts be astute to ensure that the awards they make for such infringements correctly balance the rights to personal liberty and injury suffered by the individual.

Reference List:

  • Ngwenya v Minister of Police (942/2016) [2019] ZANWHC 3 (7 February 2019)
  • Sofika v Minister of Police (330/2/12) [2018] ZAECMHC 37 (31 July 2018)
  • De Klerk v Minister of Police (329/17) [2018] ZASCA 45; [2018] 2 All SA 597 (SCA); 2018 (2) SACR 28 (SCA) (28 March 2018)
  • Criminal Procedure Act 51 of 1977.
  • The Constitution of South Africa.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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