UNLAWFUL ARREST / UNLAWFUL DETENTION
What are your rights under the Constitution?

S. 10: Everyone has inherent dignity and the right to have their dignity respected and protected.
S. 12(1): Everyone has the right to freedom and security of the person, which includes the right:
(a) not to be deprived of freedom arbitrarily;
(b) not to be detained without trial;
(c) to be free from all forms of violence from public or private sources;
(d) not to be tortured in any way, and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
S. 12(2)(b): Everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body.
S. 14: Everyone has the right to privacy, which includes the right not to have:
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communication infringed
S. 21 (1): Everyone has the right to freedom of movement

NB However, it must be noted that none of the above rights are absolute. They may be limited by a law of general application where such
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (S. 36(1) of the
Constitution)
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What are your rights when you are arrested?

According to S. 35(1) of the Constitution, everyone that is arrested for allegedly committing an offence has the right:
(a)  To remain silent;
(b)  To be promptly informed of the right to remain silent and the consequences of not remaining silent;
(c)  Not to be compelled to make any confession or admissions that could be used in evidence against you;
(d)  To be brought to court as soon as reasonably possible, but no later than 48 hours after the arrest;
(e)  To be charged or to be informed of the reason for your continued detention or to be released, at the first court appearance
       following the arrest;
(f)  To be released on bail if the interests of justice permit, subject to reasonable conditions.
What are your rights when you are detained?

Section 35(2) of the Constitution states that you have the following rights:
(a)  To be immediately informed of the reasons for your detention;
(b)  To choose and consult with a lawyer and to be immediately informed of this right;
(c)  To have a lawyer assigned to you by the State at the State‚Äôs expense, if substantial injustice would result should this not be
       done, and to be immediately informed of this right;
(d)  To challenge the lawfulness of your detention in person before a court and to be released, if the detention is unlawful;
(e)  To be detained under conditions that are consistent with human dignity - e.g. the provision, at state expense of adequate
       accommodation, nutrition, reading material and medical treatment;
(f)  To communicate with and be visited by your spouse, partner, relatives, your chosen religious counsellor or chosen medical
       practitioner.


Can the SAPS arrest you without a Warrant of Arrest?

As a general rule, NO. However, S. 40 (1) of the Criminal Procedure Act 51/1977 entitles a police officer to arrest without a warrant in certain
cases, such as: where a person commits or attempts to commit an offence in the presence of the police officer; where a person wilfully
obstructs a police officer in the execution of his duties; where the officer reasonably suspects that a person committed a serious offence (e.g. a
Schedule 1 offence), such as murder, public violence, assault where a dangerous wound is inflicted, rape, sexual assault, fraud, kidnapping, etc.

What is Unlawful Arrest?

This is any arrest effected without a warrant of arrest in circumstances where it should have been obtained.

What is Unlawful Detention?

This refers to a situation where the SAPS / Metro Police detain you or deprive you of your freedom arbitrarily or without just cause.

What is Malicious Prosecution?

This occurs where a person acts with malice and without a reasonable and probable cause in instigating a criminal complaint against another
person, the prosecution of which subsequently fails.