Abstract
In recent times there has been a proliferation of press reports about ordinary, law-abiding citizens who suffered the indignity and inconvenience of a wrongful (unlawful) arrest at the hands of officers of the South African Police Service or Metro Police Services. According to the most recent of these reports, this increase in the incidence of wrongful arrests have even resulted in deliberations between members of the Law Society of the Northern Provinces and the top management of the SAPS, in which the latter undertook to pay special attention to the training of police officers in order to better the present state of affairs. It is not far-fetched to describe thepresent situation on the ground in respect of wrongful arrests as epidemic. In recent interviews with attorneys who have been representing clients in wrongful arrest claims against the Minister of Safety and Security, the present writer was told about certain standard practices regarding arrests: it would seem that it is a favourite practice among certain police officials to arrest suspects on a Friday, or even a Thursday afternoon, in order to prolong the normal 48-hour maximum period of detention before bringing an arrestee before court. Furthermore, metro police spokespersons often announce, at the beginning of some road-safety drive or crack-down on traffic offenders, that certain types of offenders will, without exception, be arrested. The worst recent example recounted to the author of lamentable conduct in this context on the part of a high-ranking police official concerns an order issued on a Friday afternoon in which the officers under his command were ordered to endeavour arresting more persons of a specific ethnic group, seeing that the weekend population of the police cells under his command did not reflect the demographics of his jurisdiction!
Highlights
In recent times there has been a proliferation of press reports about ordinary, law-abiding citizens who suffered the indignity and inconvenience of a wrongful arrest at the hands of officers of the South African Police Service or Metro Police Services
In recent interviews with attorneys who have been representing clients in wrongful arrest claims against the Minister of Safety and Security, the present writer was told about certain standard practices regarding arrests: it would seem that it is a favourite practice among certain police officials to arrest suspects on a Friday, or even a Thursday afternoon, in order to prolong the normal 48-hour maximum period of detention before bringing an arrestee before court
The worst recent example recounted to the author of lamentable conduct in this context on the part of a high-ranking police official concerns an order issued on a Friday afternoon in which the officers under his command were ordered to endeavour arresting more persons of a specific ethnic group, seeing that the weekend population of the police cells under his command did not reflect the demographics of his jurisdiction!
Summary
In recent times there has been a proliferation of press reports about ordinary, law-abiding citizens who suffered the indignity and inconvenience of a wrongful (unlawful) arrest at the hands of officers of the South African Police Service or Metro Police Services. From a practical point of view the placement of this delict in the case law would appear rather strange: virtually all new cases on this topic are reported in the South African Criminal Law Reports; commentaries on cases are by and large of those who specialise in criminal procedure (see, eg, the entries under the heading “Criminal Procedure” in the South African Journal of Criminal Justice); and constitutional law principles permeate this area in recent times The reason for this phenomenon is that most of the difficulties surrounding this iniuria surface in the domain of the ground of justification just referred to, viz statutory authority – where the main piece of relevant legislation is the Criminal Procedure Act – and that the common-law interests of corpus (see D 47 10 2) infringed by an act of wrongful arrest are simultaneously fundamental human rights enshrined in the Bill of Rights (contained in Ch 2 of the Constitution; see the relevant sections referred to under par 2 above). Orders provide guidance as to the power of arrest, as well as procedures to be followed in executing an arrest (see the title “Police” in LAWSA (2ed) vol 2(2) par 141-146 for a concise but extremely practical and clear exposition of the applicable principles)
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