Last month, yet another court awarded damages against the South African Police Service (SAPS) for malicious and arbitrary arrest, once again illustrating this seemingly intractable problem. This order adds to the civil claims bill that continues to unnecessarily bleed the SAPS of scarce financial resources and erode its already tarnished reputation.

The human cost of systemic arbitrary arrest is also significant, with people unnecessarily caught in a system that can deprive them of their liberty, dignity and reputation.

The solutions lie in reform to SAPS training, better supervision and discipline management, and strengthened independent oversight. Unfortunately, we are yet to see the political will to make these changes.

In the latest case, Mdunyiswa Mtolo was awarded R3.3-million in damages following his unlawful arrest and almost three years of imprisonment. The court record reads as a case study of the worst police practice.

Unfortunately, Mtolo is just one of thousands of people subject to police malpractice. In 2021/2022 alone SAPS faced more than 13,000 new civil claims for damages.

Mtolo was arrested in 2011 on charges of housebreaking and theft. His arrest in front of colleagues was held by the court as lacking respect for his constitutional right of dignity and presumption of innocence.

His detention in two KwaZulu-Natal police stations, Plessislaer and Camperdown, was never recorded. Unsurprisingly the conditions of his detention were cruel and inhumane, and he told the court about witnessing regular assaults by police on other detainees. He was denied bail and eventually transferred, and remained in custody at New Prison in Pietermaritzburg for more than two years. His detention continued, even after the theft and housebreaking charges were withdrawn.

The evidence presented by the police in opposing bail was later described by the court as such that could only have been fabricated. The police investigations were described by the judge “as not providing an iota of independent and objective evidence”. The level of the falsification presented could only lead the court to conclude that the police knew from the outset that Mtolo was not involved in the crimes of which he was accused.

Arbitrary arrest

The problem of arbitrary arrest has been regularly raised with SAPS. In 2022, it was the subject of a human rights dialogue between SAPS and the South African Human Rights Commission (SAHRC).

An arbitrary arrest has significant consequences at both the individual and structural levels. Research has confirmed that it places an unnecessary burden on diminishing state resources while exposing the police to civil claims, and undermining public trust and confidence in the police. The impact of wrongful arrest places a significant social and financial burden on the victim and their family.

The grounds for arrest are clearly described in law. In addition to South Africa’s constitutional and legislative framework which provides a legal framework for arrest, SAPS’ Standing Order 341 provides guidance to officers on the procedure related to an arrest, and explicitly prohibits arbitrary arrest for the purposes of punishing, scaring and harassing people.

A person can only be lawfully arrested in three circumstances: on the strength of a warrant of arrest issued by a court of law; where a police officer witnesses someone committing an offence; or where there is probable and reasonable cause to believe that a person has been involved in the commission of a crime.

Arrests may also not be carried out in a discriminatory manner, with explicit prohibition against discrimination on the basis of race, ethnicity, colour, language, religion, political affiliation, nationality, social origin, or any other status. All persons detained in police custody should have a presumptive right to police bail.

While arbitrary arrest is a complex criminal justice issue, part of the challenge is that the power to arrest is ultimately a discretionary policing power.

The challenge is not a legal one. It lies in the extent to which police receive sufficient instruction, guidance, training and supervision and oversight to ensure that they are exercising their power within the confines of the law and in accordance with constitutionally guaranteed human rights.

Concerns with police discipline management have also been regularly raised with the SAPS. From 2012/2013 to 2019/2020, an average of 44% of SAPS disciplinary cases were withdrawn or the finding was not guilty according to research by the African Criminal Justice Reform.

Compared with the Department of Correctional Services, the average of disciplinary cases withdrawn or not guilty is only 6.6%. Unless this is addressed, including by providing a stronger role for the Independent Police Investigative Directorate in presenting evidence to police disciplinary procedures, change is unlikely.

Human rights

Human rights training for the SAPS is also under review. It has been more than a decade since the SAHRC was instructed to review police human rights training. The challenge here is that human rights are modularised, rather than integrated across the teaching of police procedure. Best practice in police training dictates that human rights should never be a standalone subject. Its practical application needs to be reflected in every aspect of police work.

In 2020, concerns about this led the African Commission on Human and Peoples’ Rights to undertake a study on the use of force, which included among its recommendations that human rights training be streamlined within police procedure training and be supplemented by scenario-based and practical exercises.

Monitoring of the treatment of people in police custody, which has been consistently identified as a place at which people are most at risk of torture, has recently received a boost. South Africa’s newest oversight body, the National Preventive Mechanism (NPM), established under the Optional Protocol to the Convention Against Torture, now provides for regular monitoring of places of deprivation of liberty, including SAPS facilities. Until now, there has never been a systematic monitoring of police detention.

The NPM system of police custody monitoring is well developed and checks compliance against SAPS procedural obligations and safeguards for arrested persons as well as conditions of detention. This should assist in addressing the problems observed by the court at Camperdown and Plessislaer.

Unfortunately, preventive monitoring needs to be continuous and regular to be effective. This requires significant resource investment into the NPM, and the political will to ensure this is in place.

Unless serious effort is made to improve supervision and discipline, to review police training to equip officers to respond legally to the many complex situations they might encounter, and to invest significantly in our oversight systems, arbitrary arrest will continue to drain SAPS financially and reputationally.

For victims like Mtolo, who have forever lost time behind bars, no amount of compensation can be sufficient. DM

Sean Tait is director of the African Policing Civilian Oversight Forum (APCOF).