The police arrest you after they catch you shoplifting a shirt from the local department store. They take you to their van waiting outside. On the way to the police station they ask you questions about what happened. You refuse to answer their questions. Two of the police assault you.

What Does the Law Say?

The law says that you only have to give the police your name and address. You do not have to say anything else to the police. So you did not have to answer the questions that the police officer asked you in the van. The law says that if you do not try to fight or run away, the police cannot use force to make the arrest. In this case, you did not resist the arrest. So the use of force was unlawful.

(See: Police)

(See: Section 35 of the Bill of Rights: Arrested, detained and accused persons)

As soon as you get to the police station, ask to see your attorney or to telephone someone you know to arrange an attorney for you. Ask to see a doctor immediately. In this example, you can sue the safety and security minister in the civil courts for damages suffered as a result of the use of unlawful force. You can also make a criminal charge against the individual police officer who assaulted you.

If the police:

• Unlawfully search you or your premises
• Arrest you unlawfully
• Use unlawful force when arresting you
• Refuse to give you your rights once you are arrested
• Do not bring you to court within 48 hours after your arrest, or on the first possible court day if the 48 hours ends on a weekend or a public holiday then you can sue the police to pay you compensation. This is a civil claim against the police.

Unless you were resisting arrest and the police used a lawful amount of force, the police may not abuse, torture, assault, shoot, sexually assault or rape you when they question you, search you or your premises, arrest you, or try to get you to make a statement. If they do, you can sue the police to pay you compensation in a civil claim, and you can lay a criminal charge against the police.

If you were raped or injured, you must see a doctor as soon as possible after the assault. The doctor will treat your injuries and will make a medical report, which will be used in the criminal case against the police.

• If you are not in jail you can go to your own private doctor or a government doctor.
• If you are in jail, you must ask to see a doctor immediately. You will see a district surgeon, who is a government doctor. Ask for the doctor’s name and remember it, or write it down.

Ask the doctor to write down all your injuries.

What Can You Do?

Report a Case of Misconduct to the Independent Police Investigative Directorate (IPID)

This is an independent body set up by the government to investigate serious cases of police misconduct.

If someone has been seriously injured or killed by the police, you must contact the IPID for help. You can also complain to the IPID about police corruption, or other serious complaints about police behaviour.

You can ask at any police station or Magistrate’s Court how to lodge a complaint with the IPID. There must be an IPID office in each province who must investigate the complaint. (See: Reporting a case of police misconduct)

Make a Civil Claim Against the Police

The Minister of Police is responsible for police officers if they commit an offence ‘in the course and scope of their duties’ (in other words, while they are on duty or as part of their police work). In a civil case your claim for compensation would therefore be against this minister.

You will only sue the individual police officer who acted unlawfully, if that officer was off duty at the time or if the action was not a part of his or her police duties.

Example

Your neighbour is a police officer and one night, out of anger, he assaults you because you are making too much noise. This action was not part of his police duties. He was acting as an individual. So you would sue the police officer himself and not the Minister of Police.

If you want to make a civil claim against the police, you must:

• Get help from an attorney
• Make the claim before 12 months have passed from
  • the date of the event, or
  • the date when you should have become aware of the event whichever is the later date
• Give the police 1 month’s notice that you are going to sue them

So your attorney must first write to the police to say that you are going to make a case against them and why you are making a claim. The notice must reach the police within 11 months. Then you must wait 1 month from the date that the notice reached the police, before starting the case.

If you bring the claim after 12 months have passed or if you haven’t given the police 1 month’s notice, the court may still hear your claim if you can prove to the court that it is in the interests of justice for your claim to be heard.

Laying a Criminal Charge Against the Police

Make a statement to an attorney as soon as possible regarding the assault made on you by the police officers. The attorney will help you to lay a charge against the police officer(s) who assaulted you. If you are charged, you must tell the magistrate or judge as soon as you get to court that you were assaulted. If the police refused to get you an attorney or a doctor, you must also tell the magistrate or judge this. These things are written down in the court record, and will be part of the evidence.

Follow the usual procedure to lay a criminal charge against the police officers.(See Laying a Criminal Charge Against Another Person)