Don’t get locked up during lockdown

Lockdown has led to high numbers of arrests. Here’s what to do if it happens to you.

Locked up during lockdown? Lockdown has brought with it an increased number of arrests and incidents of police brutality. In the first three weeks of level 5 lockdown, more than 100 charges were laid against the police for abuses. Level 4 regulations are unclear and open to interpretation. For example, exercise is permitted but there are to be no “organised groups”. Among the cyclists we know, one interprets “organised group” to mean a club ride or organised event like a race. Another thinks any more than two cyclists constitutes a group. Who is right? No one knows, as our rules don’t define a group by numbers, such as five (Switzerland) or 10 (France). 

So it’s up to the police to decide who is breaking the law and who is not. In this climate of ambiguity, normally law-abiding citizens may find themselves on the wrong side of the law. What should you do if this happens to you and you are arrested? 

Lockdown lock-up – arrestees’ rights

Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been wrongfully arrested, for example due to a difference of interpretation of an opaque rule, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

• Be informed of your rights as well as the consequences of not remaining silent
• Remain silent
• Not be forced to make a confession that could be used against you
• Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)
• Be charged, or informed of the reason for continued detention, or released at the first court appearance
• Be released if the interests of justice permit, subject to conditions, e.g. bail
• Be informed of your right to institute bail proceedings

Make a note of how you are treated

Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. Unfortunately, at present our police are overreaching their authority and you may find your rights are breached. It is worthwhile making a note – mental or written if possible – of the following:

• The precise events and conversations that occur between the representative of the law and yourself
• The degree of force used in effecting the arrest
• Whether a warrant was shown
• Whether you were informed of your rights on arrest
• Whether you were allowed to contact a bail attorney 

Most importantly, avoid inflaming the situation. It won’t help your case, no matter how aggrieved you may feel.

Lockdown lock-up – what to do if you are arrested unlawfully

Right now, because of the murkiness of the rules, it’s quite possible you will be arrested unlawfully, or feel that you have been. Keep calm and know your rights. 

• First, try to make notes concerning everything that is happening to you. Ask for pen and paper if you don’t have writing materials with you
• Second, remember that you are innocent until proven guilty and it is the state’s responsibility to prove your guilt
• Third, contact your lawyer as soon as possible. You have a right to legal representation – have that vital cell number on speed dial for rapid response

In your written notes, record the following, as far as you are able:

• Every conversation between you and the officer/s involved
• Was a warrant shown?
• Were you advised of your rights?
• Were you advised about your rights to apply for bail and were you able to contact a bail attorney?
• If force was used, describe this and try to evaluate whether the force used was excessive

If you have no writing materials and your request for pen and paper is turned down, do your best to make mental notes of these points and write a full account as soon as you are able.

Lockdown lock-up – what to do if you’re a victim of police brutality:

Force has been a hallmark of police activity during lockdown. The United Nations has said that South Africa is abusing the lockdown with gratuitous violence, “…using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods”. This constitutes assault. If you are a victim of this, here are some steps you can take.

Step one: collect relevant information

If possible, obtain important information at the scene of the assault, such as: 

• Names of the offending police officers
• Names and contact details of any witnesses
• Photographs of all your injuries

Step two: report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with this. 

Step three: see a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step four: document the story 

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. Be as specific as possible in detailing the assault and the injuries you sustained.

Other legal options:

Laying a charge against an offending police officer at the police station constitutes criminal proceedings. You may also institute a civil claim by opening an action for damages against the offending police officers and the Minister of Safety and Security. You will need to consult with a lawyer in order to begin these proceedings. Contact us for more information.

You can lodge a complaint with the Independent Complaints Directorate. Please go to www.ipid.gov.za/lodge_complaint/lodge_complaint.asp

Contact a good bail lawyer

SD Law & Associates are experts in criminal defence and bail applications. We are available 24 hours a day / 7 days a week. Contact us on 086 099 5146. Save this number in your phone under “bail lawyer”. In the current climate, you never know when you might need it.

This post also appears on baillawyer.co.za

Further reading:

• Cape Town to increase police powers
• Locked down with an abuser?
• Lockdown is hard on everyone

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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