Being arrested is frightening and humiliating, even when the arrest is lawful. When it is not, the harm can be lasting: nights in a police cell, time away from work and family, damage to reputation and, in some cases, months spent fighting a prosecution that should never have been brought.
South African law allows people in this position to claim damages from the state. These claims are common. In a parliamentary reply reported in February 2026, the acting police minister disclosed that the South African Police Service (SAPS) paid out more than R620 million for unlawful arrest and detention claims in the 2024/25 financial year alone, with tens of thousands of claims still outstanding.
This article explains when an arrest or prosecution is unlawful, the strict time limits for claiming and the steps to take.
Your constitutional starting point
Section 12 of the Constitution protects everyone’s right not to be deprived of freedom arbitrarily or without just cause. Section 35 gives arrested persons further rights, including the right to remain silent, to be told promptly why they are being held, and to be brought before a court as soon as reasonably possible, and not later than 48 hours after arrest (subject to the rules for weekends and court holidays).
Because the deprivation of liberty is so serious, the law places the burden on the police. In a claim for unlawful arrest, once you prove that you were arrested, the police must prove that the arrest was lawful.
When is an arrest unlawful?
Most arrests happen without a warrant under section 40 of the Criminal Procedure Act 51 of 1977. The most commonly used ground allows a police officer to arrest a person whom the officer reasonably suspects of having committed a serious offence listed in Schedule 1 to the Act. The suspicion must be based on objective facts that would make a reasonable person suspicious, not on a hunch or an unverified complaint.
Even where the legal requirements are met, an officer has a discretion whether to arrest. The courts have held that this discretion must be exercised rationally. Arresting someone simply to punish them, or where a summons or warning would clearly have secured their attendance at court, can make an arrest unlawful.
Common examples of unlawful arrests include:
- arrests for offences that do not allow arrest without a warrant;
- arrests based on mistaken identity without reasonable checks;
- arrests made to pressure a person in a private dispute, such as a debt or family matter; and
- detention for longer than 48 hours before a first court appearance.
Unlawful detention after first appearance
A claim is not limited to the time before your first court appearance. In De Klerk v Minister of Police [2019] ZACC 32, the Constitutional Court held that the police can be liable for detention after the first appearance where that further detention was a foreseeable consequence of their unlawful arrest. Where a prosecutor fails to disclose relevant information or opposes bail without a proper basis, the National Prosecuting Authority may also be liable.
Malicious prosecution
A claim for malicious prosecution is different. It arises where a prosecution was started or continued without proper grounds. To succeed, the claimant must generally prove that:
- the defendant (for example, the police or the prosecutor) set the law in motion by instigating or instituting the prosecution;
- there was no reasonable and probable cause for the prosecution;
- the defendant acted with malice, meaning an intention to injure, knowing or foreseeing that there were no proper grounds; and
- the prosecution failed, for example because the charges were withdrawn or the accused was acquitted.
Malicious prosecution is harder to prove than unlawful arrest, because the claimant carries the burden on each element. Private individuals who lay false charges can also be liable.
What can you claim?
Damages usually include general damages for the loss of liberty, humiliation and harm to dignity and reputation. Courts consider the length and conditions of detention, the circumstances of the arrest, the claimant’s personal circumstances and awards in comparable cases. You can also claim proven financial losses, such as lost income and legal costs incurred in defending the criminal case.
Strict time limits
This is where many claims fail. The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 requires you to give written notice of your intended claim to the relevant organ of state within six months from the date the debt became due. For claims against the police, notice must be served on the National Commissioner and the Provincial Commissioner of the relevant province. The notice must set out the facts of the claim and must be delivered as the Act prescribes.
If you miss the six-month deadline, you can apply to court for condonation. The court will consider whether the claim has prescribed, whether there is good cause for the delay and whether the state has been unreasonably prejudiced. Condonation is not automatic.
Separately, under the Prescription Act 68 of 1969, the claim prescribes three years after the debt became due. For unlawful arrest and detention, time generally runs from the arrest or release. For malicious prosecution, it usually runs from the date the prosecution ended in your favour.
Steps to take
- Write down what happened as soon as possible: dates, times, officers’ names, the police station and any witnesses.
- Keep your SAP 14A notice of rights, charge sheet, bail documents and court records.
- Record any injuries and obtain medical reports if you were assaulted or held in poor conditions.
- Obtain proof of financial loss, such as payslips or invoices for legal fees.
- Get legal advice quickly, so the statutory notice can be served within six months.
- Do not wait for the criminal case to end before taking advice on an arrest claim.
How O’Reilly Law can help
We assess whether an arrest, detention or prosecution was unlawful, prepare and serve the statutory notices on the police and prosecuting authority, apply for condonation where deadlines have been missed, and litigate claims for damages. We also assist clients facing criminal charges, so that their defence and any later civil claim are handled consistently.
Contact us to discuss a claim for wrongful arrest or malicious prosecution.
Related reading: Arrested or under investigation? Your rights and your company’s criminal law risks · Prescription: when does your claim or debt expire?
This article is general information and not legal advice. Correct as at November 2026.