WHAT IS AN UNLAWFUL ARREST?


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.