Know Your Rights From the Moment of Arrest
One complaint. Sixteen police officers. Three vehicles.
That is what it took to put Johannes Claassens, a 60-year-old conservationist from Polokwane, in a police cell for two nights in July 2015.
According to his evidence, which nobody challenged in court, the officers never read him his rights. At the police station he was told to sign a document that nobody explained. He was locked in a cell with about 22 other people, shown a place to sit on a floor wet with shower water and urine, and sat upright through the first night because there was no space to sleep.
He had done nothing wrong. The charges, contravening a protection order and theft, were later withdrawn. They had been laid by his neighbour, a former police officer who, the court found, had abused “his power and connections”.
In August 2022, a full bench of the Limpopo High Court ordered the Minister of Police to pay Claassens R400,000 for unlawful arrest and detention. It ordered the neighbour to pay him a further R200,000. At the original trial, the police had made no attempt to justify the arrest.
It took seven years and an appeal to get there.
Now change the name. It could be you, or your finance manager, arrested on a complaint that nobody checked. Or it could be your company that laid the complaint.
Tens of Thousands of Claims
Claassens is one of many. At the end of September 2025, SAPS faced 48,569 pending claims for unlawful arrest and detention, according to a written parliamentary reply by Acting Police Minister Firoz Cachalia. Together, those claims carry a contingent liability of R56.77 billion.
A pending claim is an allegation, not a court finding. A contingent liability is what the state could owe if every claim succeeded, and the minister stressed that it does not represent what SAPS may actually have to pay. The money already paid out is real: R620.3 million in 2024/25, and R301.6 million in the first six months of 2025/26 alone. Every rand of it comes from public funds.
In September 2026, Business Day reported that the State Information Technology Agency has gone to market for body-worn and dashboard cameras for SAPS, which currently has none. One stated aim is to help police “refute false civil claims”. The same footage that protects an honest officer also protects the person being arrested.
What the Law Allows Police to Do
Police need the power to arrest, and the law gives it to them, with limits. Section 12 of the Constitution protects everyone from being deprived of freedom “arbitrarily or without just cause”. Any arrest is treated as unlawful until it is shown to be justified, so the police must prove they had lawful grounds to arrest. You do not have to prove that they didn’t.
The Criminal Procedure Act provides four ways of bringing an accused person to court: arrest, summons, written notice and indictment. Arrest is the most intrusive of the four.
Police can arrest without a warrant in several situations, including when an offence is committed in front of them, or when they reasonably suspect someone of a serious offence listed in Schedule 1 of the Act. For that second ground, the important word is “reasonably”. In Mabona v Minister of Law and Order, a 1988 judgment that courts still apply, the court said a reasonable officer will not accept information “lightly or without checking it where it can be checked”. The law requires suspicion, not certainty. The suspicion must still rest on solid grounds.
Even when those grounds exist, an officer is not obliged to arrest. In Minister of Safety and Security v Sekhoto (2010), the Supreme Court of Appeal confirmed that officers have a discretion, which must be exercised in good faith, rationally and not arbitrarily. The standard is realistic: for serious crimes an officer can seldom be criticised for arresting, while for trivial offences an arrest may be irrational. Using arrest to frighten, harass or punish someone is unlawful. If you claim that an officer misused this discretion, however, the burden of proving it is yours. In Sekhoto itself, the court upheld the arrests.
Your Rights From the Moment of Arrest
Section 35 of the Constitution applies the moment you are arrested.
You have the right to remain silent, and the police must tell you so promptly, along with what could happen if you choose to speak. You cannot be forced to make a confession or admission that could be used in evidence against you.
You must be told promptly why you are being detained. You may choose and consult a lawyer. Where substantial injustice would otherwise result, the state must provide one at its expense.
You must be brought before a court as soon as reasonably possible, and no later than 48 hours after your arrest. If that period ends outside court hours or on a day that is not a court day, the deadline becomes the end of the next court day. At that first appearance, you must be charged, told why your detention continues, or released. You also have the right to challenge the lawfulness of your detention in court.
While you are held, your conditions must be consistent with human dignity. You have the right to communicate with, and be visited by, your spouse or partner, your next of kin, a religious counsellor and a doctor of your choice.
Measure that list against what happened to Johannes Claassens.
What to Do in the Moment
Stay calm and do not resist physically, even if you are certain the arrest is wrong. The place to challenge an unlawful arrest is a court.
Ask why you are being arrested, and note the officer’s name, rank and station. Say clearly that you will remain silent until you have spoken to a lawyer, then keep to it. Do not sign any statement or document you do not understand. Ask to contact a family member and an attorney. If you cannot afford one, ask for Legal Aid South Africa, which gives free legal help to people who qualify. Its Advice Line, 0800 110 110, is open on weekdays from 7am to 7pm, or you can send a Please Call Me to 079 835 7179.
Never offer money to make an arrest go away. Offering a police officer gratification is a crime under the Prevention and Combating of Corrupt Activities Act. A wrongful arrest may give you a legal claim. A bribe gives the state a real case against you.
If the Arrest Was Unlawful
See an attorney as soon as you can, because the deadlines are strict. The Institution of Legal Proceedings Against Certain Organs of State Act requires you to give the state written notice of your intended claim within six months. For an unlawful arrest, that period usually runs from the date of the arrest. A court can condone a late notice, but it does not have to. Separately, the Prescription Act gives you three years to issue summons.
Write everything down while it is fresh: times, names, the police station, the case number and any witnesses. If you were injured, see a doctor and keep the medical records.
Police liability does not always end at the first court appearance. In Mahlangu v Minister of Police (2021), police arrested a man without a warrant or a reasonable suspicion and tortured him into a false confession that implicated a second man, without telling the prosecutor how it was obtained. The Constitutional Court held the Minister liable for their full detention of more than eight months and awarded them R550,000 and R500,000.
If police assaulted or tortured you, or demanded a bribe, report it to the Independent Police Investigative Directorate (IPID), which investigates these complaints independently of SAPS.
The Other Side of an Accusation
Go back to the neighbour’s R200,000. The judgment records what he admitted: he set the law in motion, acted without reasonable and probable cause, intended to harm Claassens, and the prosecution failed. Together, those elements make up malicious prosecution, and they made him personally liable.
None of this should stop anyone from reporting a crime. An honest complaint, made in good faith, does not meet that test. The risk arises when an organisation that suspects an employee, supplier or customer of fraud gives in to the pressure to “just lay a charge”. A charge laid on suspicion alone puts someone’s freedom at risk, and a weak case is likely to fail in court.
The answer is to establish the facts first. At JGL Forensic Services, that is where every investigation starts: with evidence, gathered and tested, before anyone is accused.
Freedom is the rule in South African law, and arrest is the exception. Before anyone loses their freedom, someone should have checked the facts.
This article is general information, not legal advice. If you have been arrested, speak to an attorney about your situation.