Unlawful Arrest: Can You Sue the Police? (Claims Guide)

The Nightmare Scenario

It's Friday night. You are pulled over at a roadblock or stopped on the street. The police accuse you of something vaguely defined. "Interfering with duties" or "suspicious behavior." Next thing you know, you are thrown into the back of a van. You spend the weekend in a dirty, overcrowded cell. On Monday morning, you are released without even appearing in court. "Charges dropped," they say.

You are angry. You are humiliated. And you lost a weekend of your life. Do you have to just accept this? No.

You can sue the Minister of Police for Unlawful Arrest and Detention.

When is an Arrest "Unlawful"?

Police do have the power to arrest you, but that power is not unlimited. Under the Criminal Procedure Act, an arrest is generally lawful ONLY if:

They have a Warrant: A magistrate signed a paper authorizing your arrest.
OR You committed a crime in their presence: They saw you stealing or fighting.
OR They have a "Reasonable Suspicion" of a Schedule 1 Offence: This is the tricky one. Schedule 1 offences are serious (theft, assault GBH, fraud, etc.).

It is UNLAWFUL if:

They arrested you for a minor offence that didn't require arrest (e.g., waiting for your name to be checked).
They arrested you just to "investigate" or "scare" you (Arrest is for bringing you to court, not for punishing you).
They had no evidence, just a rumor.
They failed to explain your rights (The "Miranda" rights: right to silence, right to a lawyer).

Example: Police arrest you for "drunk driving" but refuse to give you a breathalyzer or blood test, then hold you for 2 days and release you. This is a classic unlawful arrest case.

What Can You Claim For?

This is a civil claim for damages. You are asking the court to order the Minister of Police to pay you money for the harm you suffered.

You can claim for:

General Damages (Contumelia): This is for the violation of your Constitutional rights—dignity, freedom, and reputation. The court looks at how long you stayed in jail and how bad the conditions were.
Loss of Income: Did you miss work? Did you lose your job because you were in jail?
Legal Costs: The money you paid your bail lawyer to get you out.
Medical Expenses: If you were assaulted or assaulted by other inmates.

How Much is a Claim Worth?

There is no fixed price menu. The amount depends on the circumstances.

Note: These are estimates based on past case law, not guarantees.

Short Detention (few hours): R10,000 – R50,000
Weekend Detention (2-3 days): R50,000 – R150,000
Long Detention / Bad Conditions: R200,000+

Factors that increase the amount: Dirty cells, no food/water, police malice, public humiliation (arrested in front of your boss), or if you were assaulted.

The Process: Urgent Deadlines

Suing the government (SAPS) has stricter rules than suing a person.

Rule 1: The 6-Month Notice

This is critical. You MUST send a formal "Notice of Intention to Sue" to the National/Provincial Commissioner of Police within 6 months of the arrest. If you miss this 6-month deadline, your claim usually dies immediately (unless you have a very special excuse).

Rule 2: Issue Summons

After the notice, your attorney issues a Summons to start the High Court or Magistrate's Court process.

Rule 3: prescription

You generally have 3 years to finalize the claim, but the 6-month notice is the first hurdle.

What You Need to Do

If you were released and want to sue:

Keep Records. Keep your "Notice of Rights" form the police gave you. Remember the date, time, and station.
Get the Case Number (CAS). Even if charges were dropped, there is a CAS number.
Do Not Wait. The 6-month clock is ticking.

Unlawful arrest claims are complex. You need an attorney who specializes in "Delictual Claims against the State."

→ Find a Civil Litigation Attorney