What is the Penalty for Wrongful Execution?

Regardless of how you view the judicial system of South Africa, most of us can admit that from time to time, judges and courts get things wrong. Hearing tales of innocent people who spent years in prison can turn anyone’s blood cold but worse still are stories of people sentenced to death for crimes they didn’t commit. This idea has fueled the plots of many books and movies over the years and even serves as a key critique against death penalty advocacy. But how common is it really? Does wrongful execution take place in South Africa and what are the penalties for it? What is the Penalty for Wrongful Execution?

The death penalty was officially abolished in South Africa in 1995 following the landmark case S v Makwanyane, as a result any sort of capital punishment, wrongful or otherwise, has not taken in South Africa since then.

That said, mistakes are still made and even though the wrongfully accused are no longer executed, it doesn’t mean that they don’t occasionally spend many years in prison for crimes they didn’t commit. Such instances of wrongful imprisonment are worryingly plentiful and lead many South Africans to wonder how such an issue can be combated.

What is the Penalty for Wrongful Execution?
What is the Penalty for Wrongful Execution?

Can you Sue for Damages after Being Wrongfully Imprisoned?

Yes, you can. In many cases, once an individual has been found innocent of their alleged crimes, they go on to sue for damages caused by their imprisonment. If an individual were to win such a lawsuit, the amount that will be paid to them will depend on a number of factors including things like their treatment while in custody, the duration of their confinement, relevant medical expenses, infringements against their freedom and dignity, etc.

As you can imagine, the payouts from cases of wrongful imprisonment can vary wildly with some individuals being awarded R45 000 while others are given up to R500 000 (although it should be noted that the latter case did involve torture of the innocent individuals).

Frequently, such lawsuits feature multiple accusations beyond just wrongful imprisonment which may result in much higher payouts, for example, an Eastern Cape resident was recently awarded R1.5 million, this amount was comprised of a R1.050 million claim for his arrest and detention alongside a R500 000 claim for malicious prosecution. 

Can you Sue for Damages after being Wrongfully Arrested?

Yes, you can, you do not need to spend years behind bars for a crime you did not commit just to be entitled to damages. Those unlawfully arrested may bring claims against the state for various reasons, including loss of income, medical expenses, suffering experienced, etc.

What is the Penalty for Wrongful Execution?
What is the Penalty for Wrongful Execution?

What Do You Do If You are Wrongfully Imprisoned?

Section 35 (2d) of the Bill of Rights states that any sentenced individual has the right to challenge the lawfulness of their sentence and if unlawfulness is proven, to be released.  

This means that those who are wrongfully accused are able to challenge the decision of the court on the basis of many different factors. It is always in your best interest to hire a trained legal professional who will be able to properly challenge the outcome of your trial.

These challenges can come in the form of either an appeal or a review.

What’s the Difference Between an Appeal and a Review?

The key difference between an appeal and a review lies with the aspect of the trial which is being challenged. There are many minor differences between the two but the main distinctions are as follows –

When dealing with cases of false imprisonment, especially in cases with harsh sentences, it is common for the accused to appeal to higher courts to change the original decision.

Who are Appeals Made to?

South African courts are formed in a type of hierarchy with ‘lower courts’ such as a Small Claims court being found on the bottom and ‘superior courts’ like the Supreme Court of Appeals and the Constitutional Court is found at the top.

Generally, when an appeal is made, it will be considered by a higher court, in other words, if an appeal is made following a decision by a Regional Magistrates’ Court, that appeal would be considered by the High Court, a further appeal may then be considered by the Supreme Court of Appeals.

That said, an appeal may sometimes be considered by a full bench of judges from the same court.

For the most part, there is no automatic right to appeal and dissatisfied parties must instead apply for leave to appeal against their case. These applications may be refused and parties may then need to apply to a higher court.

There are many reasons why an application may be refused but perhaps the most common one is that the judge in question does not believe that an appeal will have any reasonable prospect of success.

How Long do You Have to Make a Civil Claim after an Unlawful Arrest/Imprisonment?

What is the Penalty for Wrongful Execution?
What is the Penalty for Wrongful Execution?

Following an unlawful arrest and detention, you have 6 months to provide the accused group (for example, SAPS or the Minister of Police) with written notice of your intention to take legal action and such a notice must be delivered by hand or email although, in special cases, you may approach the court and apply for a condonation if you miss this deadline. 90 days after you deliver this notice, you will have a 3 year period to begin a civil action against the accused party in court.

In Conclusion – What is the Law on Wrongful Arrests and Imprisonment?

As capital punishment was outlawed in South Africa, wrongful executions are no longer a primary concern within the legal system, that said, any type of wrongful detention is taken very seriously in South Africa as it infringes upon certain fundamental rights safeguarded by the Constitution.

Luckily, the constitution also provides citizens with avenues for combating these wrongdoings and innocent individuals are generally able to challenge decisions made by law enforcement officials and the courts. Notably, court proceedings can be either appealed or reviewed to resolve the matter.

Appeals are necessary when the outcome of the trial is contested based on the facts of the case, such as when the judge has misinterpreted the law. On the other hand, a review is relevant when the lawfulness of the process is challenged, such as when the judge is believed to have been acting in bad faith.

Individuals who experience either an unlawful arrest or detention are able to sue the state for damages following the event. The remunerations awarded from these trials can range from relatively small amounts to massive sums of money depending on various elements of the case. Some of the key factors considered when determining the damages accrued include things like the length of the imprisonment, the treatment of the accused and any relevant medical expenses.

What is the Penalty for Wrongful Execution?
What is the Penalty for Wrongful Execution?

Appeals are made to either a higher-ranked court or to a bench of judges, for example, following a case conducted in a Regional Magistrates’ Court, an appeal would normally be made to a High Court. It should be noted however that individuals usually need to apply for leave to appeal and even then, their appeal may be rejected for many different reasons such as if the judge believes that there is no reasonable chance that the appeal will succeed.

Once an unlawful arrest or imprisonment has taken place, the aggrieved party has a set amount of time to begin legal action against the accused and although their are special circumstances in which this deadline may be extended it is highly recommended that such individuals consult a trained professional as soon as possible to ensure that their claims can be properly presented.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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