Wrongful Arrest

What classifies as wrongful arrest?

wrongful arrest

This can be described as the detainment or arrest of a person who by law does not qualify to be detained or arrested.

Police brutality (or misconduct) is the use of excessive force by a law enforcement officer. In the line of duty, there may be times when force is necessary to ensure the safety of the police officer, bystanders, or even the offender themselves. However, there are instances in which law enforcement officers have abused their authoritative power and mistreated citizens.

Anyone who is arrested unlawfully should immediately seek advice on claiming damages.

Until now, such claims - and the attendant legal costs - have been paid by Government. As the High Court has pointed out in a recent judgment, the result is that effectively we the public have been footing the bill for the unconstitutional actions of officials "who think that they can do as they please, simply because they have the force of the whole law enforcing system behind them".

That however looks set to change. In the case in question, a motorist had been arrested by the Metro police and then detained by SAPS, who refused to release him on "police bail" (which the police are obliged to consider granting in less serious matters). The Court, in an urgent late-night application, ordered the motorist's immediate release.

Thereafter, holding both the arrest and the detention to have been unlawful, the Court ordered that:

  • The costs of the application be paid, not by the State as would normally be the case, but by the Metro Police and SAPS officers themselves in their personal capacities,
  • " The officers must personally pay not just the motorist's legal costs, but also those incurred by the State and by the National Commissioner of Police,
  • " The punitive "attorney and own client" scale is to be applied to these costs.

  • Note that the Court's warning isn't confined to just police officers, but applies to all public officials: "Any public official who knows that he would be ordered personally to pay costs of any court application or litigation flowing from his unlawful actions, instead of the taxpayer having to carry such a burden, and such an official not suffering any consequences therefrom, will think twice before acting in the manner and fashion those responsible in this matter had acted."

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