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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-04-16
The recent death of the taxi driver, who was chained to the back of the police van and then driven by the police to the police station has prompted this week's edition of Law Talk.

Needless to say, the conduct of the police in that case was both wrongful and unlawful and amounted to a gross abuse of their powers.

When effecting an arrest the police are required to identify themselves and inform the suspect that why he or she is being arrested.

The police are also required, in terms of our Constitution, to inform a suspect of his rights including his right to bail.

According to Section 39(1) of the Criminal Procedure Act, a person can be arrested with or without a warrant of arrest and "unless the person to be arrested, submits to custody" the police are allowed to touch his body or, if the circumstances so require, by forcibly confining his body."

The Act also states that an arresting officer is obliged either at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the reason why he or she has been arrested. This means the police are not given the power to make arbitrary arrests.

According to Section 35 of the Constitution any person who is detained, including every sentenced prisoner has the right "to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment".

Should the police not do any of the above, this would be considered a violation of their duties. Any arrest and consequent detention under those circumstances could then be rendered unlawful and a leave open a damages claim to be instituted against the Minister of Safety and Security.

A judge hearing a matter involving unlawful arrest and detention recently held that "the state is therefore required to take its constitutional duties seriously and those representing the state in litigation are required to act in accordance with that duty" and granted a victim the sum of R150 000,00 as compensation for damages for the harm done to him as a result of his unlawful arrest and detention.

Know your rights! Email fawzia@thelawdesk.co.za or call 031- 5025670 for any legal assistance.