• Kevin Smith


Arrests during Lockdown – arrestees’ rights

Everyone arrested has certain rights guaranteed under the Constitution. These rights are inherent to you whether you feel you have been wrongfully arrested or have been caught red-handed committing a crime. There is certain behaviour incumbent on the police making the arrest. You have the right to:

§ Be informed of your rights as well as the consequences of not remaining silent

§ Remain silent

§ Not be forced to make a confession that could be used against you

§ Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)

§ Be charged, or informed of the reason for continued detention, or released at the first court appearance

§ Be released if the interests of justice permit, subject to conditions, e.g. bail

§ Be informed of your right to institute bail proceedings

Make a note of how you are treated while arrested

South African police force is obligated to uphold the Constitution and act within the law. Occasionally it does not. Unfortunately, at present our police have been found to be overreaching their authority and you may find your rights transgressed. It is worthwhile making a note – mental or written if possible – of the following:

§ The circumstances surrounding your arrest

§ The precise events and conversations that occur between the representative of the law and yourself

§ The degree of force used in effecting the arrest

§ Whether a warrant was shown

§ Whether you were informed of your rights on arrest

§ Whether you were allowed to contact a bail attorney

Most importantly, avoid escalating the situation. Aggressive or inflammatory behaviour will not help, no matter how aggrieved you may feel. Always remember that you are in a situation where your civil liberty is being deprived by authority, you are not on equal footing.

What to do if you are arrested unlawfully

Right now, because of the lack of clarity of the rules, it’s quite possible you will be arrested unlawfully, or feel that you have been. Keep calm and know your rights.

§ First, try to make notes concerning everything that is happening to you. Ask for pen and paper if you don’t have writing materials with you or have witnesses document the situation

§ Secondly, always remember that you are innocent until proven guilty and it is the state’s responsibility to prove your guilt

§ Third, you have a right to legal representation, as such make sure you contact your legal representative as soon as possible.

What to do if you’re a victim of police brutality:

In South Africa and elsewhere across the globe, force has been a hallmark of police activity prior to, during and most likely post lockdown. The United Nations has stated that South Africa is abusing the lockdown with gratuitous violence, “…using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods”. It must be notes that this constitutes assault. Follow these steps if you are the unfortunate victim of these:

Step one: collect relevant information

If possible, obtain important information at the scene of the assault, such as:

§ Names of the offending police officers

§ Names and contact details of any witnesses

§ Photographs of all your injuries

Step two: report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with this.

Step three: see a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step four: document the story

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. Be as specific as possible in detailing the assault and the injuries you sustained.

Alternative legal options:

Laying a charge against an offending police officer at the police station constitutes criminal proceedings. You may also institute a civil claim by opening an action for damages against the offending police officers and the Minister of Safety and Security. You will need to consult with a lawyer in order to begin these proceedings. Contact us for more information.

You can lodge a complaint with the Independent Complaints Directorate. Please go to

Or contact them at

Eastern Cape | 082 592 9888 Free State | 063 225 6081 Gauteng | 076 745 5718 Limpopo | 078 871 4811 Kwazulu-Natal | 079 895 2741 Mpumalanga | 072 881 4196 Northern Cape | 064 624 8203 North West | 078 163 6874 Western Cape | 073 890 1269

Where you have been the victim at the hands of the military, you can contact:


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