What are your remedies for Unlawful Arrest, Detention or Malicious Prosecution?
You are entitled to instruct an attorney to bring an action for damages against the SAPS / Metro Police - e.g. loss of support, where a breadwinner dies while unlawfully arrested and detained; damages for loss of earnings, medical costs incurred and any future medical costs; damages for loss of dignity as a result of the unlawful arrest and detention, trauma sustained while in police custody, etc. You also need to bring to our attention if you lost your job as a result of the arrest / detention as well as how this has affected your ability to apply for and obtain employment (if relevant). If any of your personal belongings that you had to hand over to the SAPS when you were at the holding cells went missing and never returned to you after your release, we need to know about these as well so that we may claim for them as well.
What to do when being arrested by the SAPS / Metro Police
It is advisable to cooperate with the officers and not to impede them in the execution of their duties, even if you believe that they are acting illegally. Remember, obstructing a police officer in the execution of their duties is a crime that entitles them to arrest you without a warrant of arrest.
It is important that you do / take note of the following as it might prove crucial to any damages claim that you might want to bring against the SAPS / Metro Police: date and time of arrest; full names and force number of the arresting officer(s) - always ask for their name tag / appointment card which they should carry with them at all times ; name, make and registration number of the SAPS / Metro Police vehicle in which you are transported; note the condition of the vehicle and if there are other occupants in the vehicle, whether they are convicted criminals or not; note how the vehicle is driven (fast / recklessly / brakes applied harshly, etc.); once at the Police Station / holding cells, take note of the condition of the cells - i.e. are they clean / filthy, whether the ablution facilities in your cell are working and how many of you had to share those facilities, how many people you are held within the cells, whether any of these other people are convicted criminals and what offenses they have been convicted of, whether you were fearful for your life and safety; the condition of any bedding / sleeping material, such as blankets that you were provided with (if any) - were they clean, infested with fleas / lice? Also note your own feelings about the experience - did you feel humiliated and degraded? If you had to undergo counselling after the ordeal, you will need to provide a copy of the psychologist’s report to us. Also note how your community perceives you following the arrest - do people now regard you as a criminal? Did you experience any harassment - e.g. by gang members while in police custody, did you experience or witness any prison gang violence? Your health condition before and after your arrest and detention; date and time of release from custody. While in police custody did you suffer any police brutality, torture, unlawful search, assault or even sexual violence? Name of the police station where you have been detained; police case number; reason for arrest / detention.
Are you entitled to Police Bail?
Generally, at any police station there should always be an officer on duty that is sufficiently senior to consider your request for so-called “police bail”. Where you have committed a minor offence, the investigating officer can agree and propose an amount of so-called ’police bail’ or to release you on a warning. You would be entitled to be released upon payment of the police bail.
If the investigating officer unreasonably and without just cause opposes your request for bail or furnishes false information to the court with the result that your bail application is declined by the court, you could be entitled to sue the SAPS for malicious prosecution.
Is it too late to sue?
According to the Institution of Legal Proceedings Against Certain Organs of State Act 40/2002, you must give the SAPS / Metro Police notice of your intention to sue them within 6 months of the unlawful arrest / detention. However, if you approach us after the 6-month period we might be able to assist, if the court agrees to condone the late service of the Notice. Further, any action against the SAPS / Metro Police must be brought within 3 years from the date of the unlawful arrest / unlawful detention / malicious prosecution. Accordingly, the sooner you approach us, the better.
How can we help you?
Once we have your instructions, we will assess whether your case has any prospects for success and if so, we will negotiate with you whether to represent you on the basis that you will pay us and our Advocates at an hourly rate for our services or whether you prefer that we take on your case on a no-win no-pay basis i.e. contingency basis in accordance with the Contingency Fees Act, 66/1997.
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