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It really is surprising how many arrests take place in South Africa on a daily basis.

 

Whether this is a symptom of moral decay or of the poverty rate in S.A. remains open to debate.

When it comes to the legalities thereof we always receive the following questions:

 

1. If I was in a fight, will I be arrested if I make a case against the other person?

2. If I am arrested, may the police assault me?

 

Again, the answer is a bit ambiguous depending on the situation.

 

When you are involved in a physical confrontation and want to open a case against the other person, the criminal charge will be for assault, Assault with the intent to do grievous bodily harm or attempted murder. Each of these is increasingly serious and makes the matter and results of the matter more serious as they progress. The fact is that if you open a criminal investigation, you are acting in accordance with your rights and the other party or accused may open a case against you also.

 

What does this mean in practice. If you go to the police station and open a charge of common assault, you will be questioned as to the actions you took to protect yourself. If you hit someone with a baseball bat after being slapped with a flat hand this could be deemed to be assault, and if a case was opened against you for assault, you may very well be arrested.

 

The only reason for arrest is to bring you before court and the officers may arrest you as set out in section 40 of the criminal procedure act. The sad thing is that most of the time, arrests can be seen to be unlawful. This is due to the fact that arrest should be done as a last recourse to bring you before court. This recourse can and should be avoided where possible. If you have a valid and verifiable residential address and employment address in the jurisdiction, there should be no reason to arrest you unless the charge is of such a serious nature that arrest could be justified. This means that on many many MANY arrests throughout S.A. that the arrested persons may have a claim against the minister of police, provincial traffic department or the police member himself if no vicarious liability can be proven. This is also the newest method used by many attorneys to claim damages amounts from the state which may in some instances be very large payments.

 

As far as using force during arrest, a police officer may use such force as is necessary to obtain control of the arrested person. This does not mean that if you willingly go with police they can still assault you. If you run away, you may be tackled and brought to the ground. If you attack an officer, he/she may protect himself/herself. This means that the amount of physical actions taken by the officer depend solely on you as the person being arrested. 

 

If you are assaulted this may also be claimed as personal injury from the relevant minister as mentioned above if same was unlawful.

The best thing is to have an attorney present, but if you cannot have an attorney with you, remain calm and obtain legal representation as soon as possible.

 

As always our office is available to assist you in this regard

 

Have a wonderful day

 

-Du Bruyn Attorneys