Arrested unlawfully

Don’t wait for the worst to happen. We’ve written about arrestees’ right in the past, but the recent student protest action both here in Cape Town and across the country, especially at the Union Buildings, has seen a police response out of proportion to the threat posed by students protesting peacefully with a legitimate grievance; and we feel it is important to repeat the process you should follow in the event of arrest.

The government has responded to the #FeesMustFall campaign by announcing that the planned fee increases will not go ahead; nevertheless students at some universities have decided to continue their protest. The issue of fees has triggered wider discontent with inequalities that still exist in our society and we expect that more protest action will follow.

So if you are taking part in a protest and find yourself arrested unlawfully it is important that you know your rights and the appropriate course of action.

Arrestees’ rights

Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been arrested unlawfully, for example in a protest situation, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

  • Be informed of your rights as well as the consequences of not remaining silent
  • Remain silent
  • Not be forced to make a confession that could be used against you
  • Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)
  • Be charged, or informed of the reason for continued detention, or released at the first court appearance
  • Be released if the interests of justice permit, subject to conditions, e.g. bail
  • Be informed of your right to institute bail proceedings
Make a note of how you are treated

Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. To ensure we can help you in the event of a breach of your rights, it is worthwhile making a note – mental or written if possible – of the following:

  • The precise events and conversations that occur between the representative of the law and yourself
  • The degree of force used in effecting the arrest
  • Whether a warrant was shown
  • Whether you were informed of your rights on arrest
  • Whether you were allowed to contact a bail attorney

Most importantly, try to keep calm at all time. Inflaming the situation with the police will not help your case, no matter how aggrieved you may feel at the treatment you receive.

What to do if you’re a victim of police brutality & arrested unlawfully

In the light of the student protests and the experience some students have had of excessive use of force by police, the Equal Education Law Centre in Cape Town has issued the following advice, which we fully support:

If police use actual force or unlawfully threaten the use of force on any individual, it constitutes assault. If you are a victim of this and arrested unlawfully, here are some steps you can take.

Step one: collect relevant information

If possible, obtain important information at the scene of the assault, such as:

  • Names of the offending police officers
  • Names and contact details of any witnesses
  • Photographs of all your injuries
Step two: report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with being arrested unlawfully.

Step three: see a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step four: document the story

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. When arrested unlawfully, be as specific as possible in detailing the assault and the injuries you sustained.

Other legal options

Once you lay a charge against an offending police officer at the police station, you institute criminal proceedings. However, you are also able to institute a civil claim by instituting an action for damages against the offending police officers and the Minister of Police. You will need to consult with a lawyer in order to begin these proceedings. Click here to contact us for more information.

You can lodge a complaint with the Independent Complaints Directorate. Please click here

Contributed by attorney Simon Dippenaar of SD Law.
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