The Recourse available for being Unlawfully Arrested and Detained

By 28th September 2023Criminal Law
unlawfully arrested

The Constitution of the Republic of South Africa of 1996 provides in section 35 (2)(d) that everyone who has been detained has the right to – challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released. In other words, when you have been unlawfully detained and arrested you have a right to challenge such unlawful detention especially when you have protested your innocence.

In the recent judgement of Wigg v Minister of Police of 2022, Plaintiff claimed damages against Defendant being the Minister of Police for an unlawful arrest and brief detainment of the Plaintiff by two on-duty police officers.

The plaintiff avers that on 30 April 2019, she was pulled over by two police officers who were acting in the course and scope of their employment. The two police officers arrested the Plaintiff in full view of the members of the public. The plaintiff was suspected of dealing or buying drugs as one of the police officers told the Plaintiff that she came out of a property belonging to a drug dealer. Plaintiff denied the accusations however, despite denying it the two police officers arrested and handcuffed Plaintiff at the scene. It is imperative to note that Plaintiff is a sales representative and only delivered a quotation at the said property for one of her clients.

Further, one of the police officers proceeded to confiscate Plaintiff’s phone without her permission and searched Plaintiff’s handbag and motor vehicle. Plaintiff was extremely scared and stressed as Plaintiff feared that the two police officers would rape her. The plaintiff felt vulnerable, helpless, and embarrassed. In contrast, the police officers averred that they saw Plaintiff reverse out of the property of a person who is a drug dealer and reasonably suspected that Plaintiff was committing an offence listed in Schedule 1 of the Criminal Procedure Act and was authorized to arrest and detain the Plaintiff in terms of section 40 (1)(b) of the Criminal Procedure Act.

The court had to decide on the quantum that Plaintiff is claiming from Defendant for the unlawful arrest, impairment of dignity, loss of freedom, deprivation of her freedom of movement, pain, suffering, psychological trauma and humiliation as a result of the arrest and detention. The court found that although there was no evidence adduced to the extent of the publicity of the arrest, the court was unable to deny it. Further, the court found that although there was no evidence to conclude that the arrest was malicious, the court is satisfied that the police officers were harsh in the way they arrested the Plaintiff and the way they handcuffed the Plaintiff by physically hurting her. The court found that although there was no evidence the police were not circumspect in the manner they arrested the Plaintiff after the Plaintiff protested that she was innocent. The court further elaborated that “this type of behaviour by the police should not be tolerated and must be discouraged at all costs.” Also, the manner in which they mocked Plaintiff with their sneering remarks during the arrest and not apologizing aggravates the aggressive nature of the arrest and consequently violates Plaintiff’s rights. Further, although the body search was conducted by a female officer, it constituted an unwarranted and avoidable invasion of the Plaintiff’s rights to dignity, privacy, and bodily integrity which must be taken into account by the courts when determining the quantum.

The court held that in respect of the circumstances, an amount of R540 000.00 (five hundred and forty thousand rands) would constitute sufficient solatium for the Plaintiff’s injured feelings. In this matter, Plaintiff’s dignity was desecrated by the arresting officers and Plaintiff was deeply hurt by the incident which was evident in court and by her tearfulness.

If you have been a victim of unlawful arrest and detainment, feel free to contact us for assistance.


Shervona Tia Marshall
Candidate Attorney



Leave a Reply