Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
The police have no powers other than those granted by acts of
parliament, the most important being the Criminal Procedure Act,
1977, and the South African Police Service Act, 1995. Any police
officer acting outside these powers is liable to disciplinary
proceedings, criminal prosecution or to a civil action for
damages.
Misconduct
If you feel that a police officer has acted in an improper or
illegal manner you may complain at the nearest police station.
The police must investigate your complaint, but if you are
unhappy about the way the matter is being handled, ask to speak
to the station commander. If you are still dissatisfied, complain
in writing to the district Commissioner of Police for the area.
If all approaches fail, contact a newspaper or a member of
parliament (MP), or a political party constituency office.
Illegal search and entry
A police officer who unlawfully enters private property is
regarded in law as a trespasser. Such an officer may be charged
with trespass, or with malicious damage to property if
he or she breaks in, or with assault
if a person on the property is forcibly searched. The general
rule is that a search warrant must be produced.
The police may, however, enter and search, and seize goods
without a warrant if the person in charge of the premises
consents, or if they have reasonable grounds for believing that
they could have obtained a warrant, but that the delay in doing
so would defeat the object of the search. (See police, powers of the.)
A police officer who exceeds the limits of a warrant - for
example, by searching a person when the warrant does not
authorise it or by acting without a warrant unjustifiably - may
be sentenced to a fine or imprisonment and may also be liable to
a civil action for damages.
Unlawful arrest
A police officer who exceeds the limits of authority to arrest
is liable to conviction for assault or any other crime committed
while making the arrest. Even the mistaken belief that an arrest
was authorised, would not normally be excused.
A police officer who makes an arrest in terms of a warrant,
must produce the warrant - you cannot be arrested until you know
what you are being arrested for.
Note, however, that resisting arrest, or interference or
obstruction of a police officer must be justifiable (for example,
the police were not authorised to act or you were acting in
self-defence). Resistance which is not justifiable could result
in a charge of obstructing the
police in the execution of their duties.
A charge of unlawful arrest or assault or both may be brought
against a police officer who makes an arrest while not empowered
to do so or makes an improper arrest. The charge can be laid at
any police station and the police must make an official record of
the charge and investigate the matter as they would with any
other alleged crime.
If you are arrested unlawfully and held by the police, you may
apply to court for your release. It is best to do this through an
attorney. If you do not have
an attorney, phone around until you find one who is prepared to
act for you.
Complaints in court
If you wish to complain about the way you were treated when
you were arrested or while you were in custody, you should do so
when you are brought before a court. If you were denied access to
a lawyer, bring it to the attention of the court.
Civil claims against the police
A police officer who breaks down a door and enters your house
unlawfully is guilty of malicious injury to property and of
trespass; in this instance, unlawful arrest may also lead to a
charge of assault.
In addition to criminal charges, you may institute a civil
action against the police for damages
caused by their unlawful conduct, involving trespass, assault,
wrongful imprisonment, malicious damage to property or malicious
prosecution.
In law, police officers are regarded just as any other
employees are. They are employed by the state, which, like any
employer, is liable for any civil claim that may arise from
unlawful action by its employees in the course of their
employment.
If you have been wrongfully arrested or assaulted by the
police and you wish to sue for compensation, there is one
essential fact to remember: if you do not act swiftly, you may
find that your action has prescribed ('gone stale') and you can
no longer proceed with it.
Generally, if you wish to sue a private citizen for assault,
you must begin the action within three years, or your action will
prescribe. When assault, or any other wrongful action, concerns
the police, however, the South African Police Service Act, 1995
states that your action will prescribe after 12 months. Before
you sue the police, you must give the national Commissioner of
Police one month's written notice of intention to do so.
Failure to give this notice, which must include details of the
incident which has led to the proposed action, will jeopardise
your case.
