What is an unlawful arrest?
Unlawful arrest consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another purporting to act according to the law.
The Criminal Procedure Act lays down strict rules concerning when a person may be arrested: (e.g. his right not to be deprived of his freedom arbitrarily or without just cause or his right to freedom of movement (sections 12(1)(a) and 21(1) respectively of the Constitution). The courts have warned that “If the object of an arrest, though professedly to bring an arrested person before the court, is really not such, but is to frighten or harass and so induce him to act in a way desired by the arrester, without his appearing in court", the arrest is unlawful.
In terms of the CPA an arrest should preferably be made only after a warrant for the arrest has been obtained. It is only in exceptional circumstances that private individuals, or even the police, are authorised to arrest anyone without the authority of a warrant. Any arrest without a warrant which is not specifically authorised by law, will be unlawful.
Even a police official who executes a warrant for the arrest of a person must exercise proper care in doing so. If he negligently arrests the wrong person, he may, in an action for wrongful arrest, be compelled to pay such person a large amount in damages. The arrestor must inform the arrestee of the reason for his arrest at the time of the arrest or immediately thereafter, or give the arrestee a copy of the warrant.