Very often than not be it by way of local news reports or even social media we stumble upon horrific stories of innocent individual who were unfairly treated by The South African Police Service. The question on every victims mind more often than not is if he or she is entitled to claim damages from the very body established for the primary purpose of protecting and safeguarding all South African citizens.
In practice it has become common cause to consult with potential clients who found themselves in the unfortunate situation of being wrongfully arrested be it as a result of a routine investigation or simply as a result of a misunderstanding.
When considering a claim for damages based on unlawful arrest you need to understand and consider the following principals:
THE CAUSE OF ACTION
Arrest by members of the South African Police Service (SAPS) or Metro Police that in itself is lawful, will not lead to a claim for damages. If the arrest is unlawful such unlawful deprivation of a person’s liberty is an infringement upon the arrested person’s liberty and a claim for damages may be instituted for such deprivation. The relief for such an unlawful arrest and detention lies in the actio iniuriarum being the violation of a person’s bodily integrity, dignity or reputation.
An unlawful arrest and detention could be done maliciously. This implies that the procedure for a lawful arrest is abused in order to achieve an unlawful deprivation of a person’s liberty. This may be done in various ways:
- The arrest may be done in terms of an irregular warrant where the arrestor is aware of such irregularity;or
- The arrest may be done in terms of an irregular process where the arrestor is aware of such irregularity.
WHO MAY BE HELD LIABLE
- If the Defendant is a member of the South African Police Service acting within the course and scope of his employment the Minister of Police will be the liable party.
- If the Defendant is a member of a Metro Police Department acting within the course and scope of his employment the Municipal Counsel in question will be the liable party.
Irrespective as to whether the Defendant is a member of the South African Police Service or a member of a Metro Police Department summons need to be served before the expiry of three years from the date on which the claim arose. In the case of a minor his or her claim will become prescribed within one year after the year in which he becomes a major.
THE INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002
Irrespective as to whether the Defendant is a member of the South African Police Service or a member of a Metro Police Department Section 3(1) (a) of Act No 40 of 2002 needs to be adhered to in that:
- The Defendant must be given notice in writing within six months of the date on which the cause of action arose which notice must briefly set out the facts giving rise to the action as well as such particulars of such action as are within the knowledge of the Plaintiff.
Should the Plaintiff fail to serve such a notice in accordance with the provisions of the act, the Plaintiff would first have to request and obtain condonation from the Defendant. If it is refused the Plaintiff will have to bring an application to Court for condonation of the fact that the notice had been given late.
The notice period also runs against minors and their natural guardians.
JUSTIFICATION AS A POSSIBLE DEFENSE
Section 49 of The Criminal Procedure Act 51 of 1977 provides that, if any person authorized under the Act to arrest or assist in arresting another attempts to arrest such person and the latter:
- Resists the attempt and cannot be arrested without the use of force; or
- Flees when it is clear that an attempt to arrest her or him is being made, or resists such attempt and flees, the person so authorized may, in order to affect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.
In order for the Defendant to succeed with the defense of justification the following factors need to be alleged as well as proven:
- The Defendant acted lawfully;
- The Defendant had reasonable grounds for suspecting the commission of an offence by the Plaintiff, on which grounds the Defendant was by law entitled to arrest the Plaintiff;
- The Defendant attempted to arrest in a manner prescribed by law;
- The Plaintiff attempted to prevent or escape arrest; and
- The force employed by the Defendant was reasonably necessary to bring about the arrest.
HEADS OF DAMAGES CLAIMABLE
- General damages for pain and suffering and loss of enjoyment of amenities of life.
- Past and future loss of income.
- Past and future medical expenses.
When considering your position do not be afraid to lodge a claim but most importantly be vigilant of your rights when it comes to the process of arrest.
Written by : Yolandi Vosloo (LL.B)