How to sue for wrongful arrest and unlawful detention

Being arrested and released without charge, or held for a weekend and then told the matter is withdrawn, leaves most people with a sense of grievance and no idea that it is a claim.

It frequently is. Wrongful arrest and unlawful detention claims against the police are among the more commonly litigated civil claims in South Africa, and they turn on a rule that works in the claimant's favour more decisively than in almost any other area.

The onus is on the state

In an ordinary civil claim the plaintiff must prove their case. Here, the position is reversed.

An arrest is a deprivation of liberty, and it is treated as prima facie unlawful. Once the claimant proves that they were arrested and detained, the state bears the onus of justifying it. The police must establish that the arrest was lawful, not the other way round.

That matters enormously in practice. A claimant does not have to prove that the officer acted badly, or that there was no reasonable suspicion. They prove the arrest and the period of detention, and the defendant has to make good the justification.

Where the arrest was made without a warrant, the state must establish the jurisdictional facts that permitted it: that the arrestor was a peace officer, that they entertained a suspicion, that the suspicion was of an offence in the relevant schedule, and that the suspicion rested on reasonable grounds. Our guide on whether the police can arrest you without a warrant sets out those requirements.

Even where those facts are established, the exercise of the discretion to arrest can be attacked. An arrest is not the only way to secure attendance at court, and an officer who arrests where a summons would plainly have sufficed may have exercised the discretion improperly.

The six-month notice

This is the provision that destroys more of these claims than any defence on the merits.

Under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, written notice of an intended claim must be given to the organ of state within six months from the date on which the debt became due, which for an arrest is generally the date of the arrest or of the release.

The notice must set out the particulars of the claim: the parties, the date the debt became due, the facts giving rise to it, and the amount claimed. It is a substantive requirement, not a courtesy, and proceedings cannot be instituted without it.

Six months is short, and people spend it waiting to see whether the criminal case against them is withdrawn. That is understandable and it is the single most common way the claim is lost.

If you have been wrongfully arrested, the notice is the first thing to deal with, not the last. It can be given while the criminal matter is still running.

If you missed it

Missing the notice period is not automatically the end. A court may condone the failure where it is satisfied that:

• the debt has not been extinguished by prescription
• good cause exists for the failure to give notice
• the organ of state was not unreasonably prejudiced by the failure

Condonation is granted regularly, but it is an application with its own costs, and "I did not know about the notice requirement" is a weaker explanation than a documented reason. The longer the delay, the more work the explanation has to do.

Two clocks, not one

Claimants often conflate these and should not.

The notice must be given within six months of the debt arising.

The claim itself prescribes after three years, meaning summons must be issued and served within that period.

Giving notice does not stop prescription running. A claimant who gave notice promptly and then waited four years has complied with one requirement and lost the claim on the other. Our prescription checker works out where a claim stands.

What these claims are worth

Awards are assessed on the facts and courts consider a range of factors, so any figure quoted as a rate per day should be treated with caution. What the case law consistently weighs is:

• the duration of the detention, with the first hours and the first night carrying disproportionate weight
• the conditions in which the claimant was held
• the circumstances of the arrest, including whether it was public, whether force was used, and whether the claimant was handcuffed in front of family, colleagues or customers
• the claimant's standing and the effect on their reputation, employment and business
• the conduct of the police, including whether the arrest was malicious or merely unlawful
• whether the claimant was charged, taken to court, or simply released

A short detention handled correctly and a weekend in custody after a public arrest are separated by an order of magnitude in value.

Related claims frequently run alongside: malicious prosecution where a prosecution was instituted without reasonable and probable cause and with an improper motive, and assault where force was used. These have different requirements, and in particular malicious prosecution requires proof of malice, so the onus does not reverse in the same way.

What to gather, and when

The evidence that decides these claims is gathered in the first days, and almost all of it is available to you at the time.

Names, ranks and force numbers of every officer involved, and the station.

The times. When you were arrested, when you arrived at the station, when you were placed in a cell, when you appeared in court, and when you were released. The occurrence book and the custody register record these and are obtainable.

The case number and the eventual outcome. A withdrawal or an acquittal is not itself proof that the arrest was unlawful, but it is relevant.

Photographs of any injury, taken as soon as possible, and a medical examination if force was used.

Witnesses. Anyone who saw the arrest, particularly at a workplace or in public.

The effect. Lost earnings, a cancelled contract, an employer's reaction, the effect on your family. This is what converts a legal wrong into a quantified claim.

You can also lay a complaint with the Independent Police Investigative Directorate, which investigates police misconduct. That is a separate process from a civil claim and does not replace it, but the investigation can produce useful material.

Suing is not the only route, and it is slow

These claims take years. A summons issued this year may be tried in three, and the Minister of Police defends a great many of them.

That has two practical consequences.

Attorneys often take these on contingency, because the onus position makes the merits more predictable than in most delictual claims. A contingency fee agreement must be in writing on the prescribed form and the fee is capped at 25% of the amount recovered, or double the normal fee, whichever is lower. Our guide on how no-win-no-fee works sets out the limits, and an agreement that does not comply with the Act is not enforceable.

The IPID complaint runs in parallel and costs nothing. It will not compensate you, but it is the route for misconduct, it can produce an investigation record, and it does not wait for the civil claim.

Where the amount is modest and the facts are simple, the Small Claims Court is not available for claims against the State, so the choice is a Magistrates' Court action or nothing. That is worth knowing before deciding whether a short detention is worth pursuing.

Worked example

This example is illustrative. Musa is arrested at his workplace on a Friday afternoon on a complaint of theft, in front of his colleagues. He is held at the station over the weekend, appears in court on Monday, and the prosecutor declines to prosecute. He is released.

He does nothing for eight months, assuming the matter is over.

His claim was strong. The state would have had to justify the arrest: the jurisdictional facts for a warrantless arrest, and the exercise of the discretion where a summons was plainly available for a man with a fixed address and a job. Three nights in custody, a public arrest at his place of work, and the effect on his standing with his employer are exactly the factors courts weigh.

His problem is the notice. Eight months have passed and the six-month period expired. He now needs condonation, which means an application explaining why he did not give notice, supported by something better than not having known the requirement existed.

The version of this that works costs nothing on the Monday he was released: a letter to the Minister of Police, setting out the date, the facts and the claim. The criminal matter being over is not a precondition to giving notice, and waiting for closure is what costs people the claim.