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Unlawful Arrest and Detention

Teachings on Unlawful Arrest


You may want to consider consulting with a lawyer who specializes in civil rights and criminal defence. They can assess the situation and help determine if your rights were violated. If it is determined that your rights were violated, they can help you pursue legal action to seek justice and compensation for your experience.


It is important to act in cases of unlawful arrest and detention to hold law enforcement accountable and prevent future incidents.


Unlawful arrest and detention are the act of apprehending or holding a person against their will without legal justification or without following proper procedures. It is considered a violation of an individual's civil liberties and human rights.


During the arrest, the utmost importance to be assisted by a legal practitioner to apply for Bail even before appearing before the court for the first time.


Your Rights in terms of Section 35 Constitution of the Republic of South Africa Act 108 of 1996 Arrested, detained, and accused persons


Subsection 1. Everyone who is arrested for allegedly committing an offence has the right-

a. to remain silent.

b. to be informed promptly-


 1.   of the right to remain silent; and

 2.   of the consequences of not remaining silent.


c. not to be compelled to make any confession or admission that could be used in evidence against that person.


d. to be brought before a court as soon as reasonably possible, but not later than-

1. 48 hours after the arrest; or

2. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day.


For example, at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and


f. to be released from detention if the interests of justice allow your release, subject to reasonable conditions.


In terms of Subsection (2) Everyone who is detained, including every sentenced prisoner, has the right to be informed promptly of the reason for being detained.


  1. to choose, to consult with a legal practitioner, and to be informed of this right timeously.

  2. to have a legal practitioner assigned to the detained person by the state and at state expense if substantial injustice would otherwise result, and

  3. to be informed of this right promptly.

  4. to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.

  5. 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; and

  6. to communicate with, and be visited by, that person's-


1. spouse or life partner.

2. next of kin.

3. chosen religious counsellor; and

4. chosen medical practitioner.


It may occur when a Police officer or other authority figure exceeds their lawful authority, uses excessive force, or arrests and detains a person without sufficient evidence to support a valid arrest. This legal penalty for the arresting officer or Minister of Police, to claim monetary damages for the person who was unlawfully arrested and detained.

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