26 February 2020

Law enforcement members such as officers or officials of the South African Police Service (SAPS) or Metro Police is not allowed to arrest a person or just take a person into custody whenever they feel like it- they must have probable cause to make an arrest.

Probable cause is a conformable indication that a crime has already been committed, or that a crime is about to be committed. Without this probable cause, an arrest of a citizen may be considered to unlawful.

Common examples of unlawful arrests include:

  • Arrests of the wrong person;
  • Arrests that occur after planting false evidence;
  • Arrests of a person without probable cause that a person committed a crime;
  • Arrests for personal gain;
  • Arrests due to a vindictive police officer;
  • Arrests due to racial profiling;
  • Arrests due to a citizen's vicinity of a crime;
  • Arrests based on pure malice.

The manner in which a person is arrested and in which an arrest is executed, may also give rise to an unlawful or wrongful arrest claim.

This includes:

  • excessive use of force;
  • improper or illegal search;
  • police brutality;
  • prison injury during which a person is detained;
  • sexual abuse.