Being arrested can be frightening. One minute you are going about your business and the next you are being placed in the back of a police vehicle, surrounded by questions and unsure about what happens next.
The good news is that being arrested does not mean you have lost your constitutional rights.
South Africa’s Constitution gives arrested and detained people important protections. The Criminal Procedure Act 51 of 1977 also sets out rules governing arrests, searches, identification procedures, confessions and other aspects of criminal procedure.
Knowing your rights can help you stay calm, avoid unnecessary mistakes and understand what the police are legally allowed to do.
YOU HAVE THE RIGHT TO REMAIN SILENT
If you are arrested, you have a constitutional right to remain silent.
You must be informed of this right and of the consequences of not remaining silent. You also cannot be compelled to make a confession or admission that could be used against you.
In practical terms, you do not have to sit in a police station and try to explain your side of the story simply because an officer is asking questions about the alleged offence.
You can say that you wish to remain silent and that you want to speak to a legal practitioner.
That does not mean you should physically resist the police or become confrontational. Stay calm, comply with lawful instructions and make it clear that you want legal advice before answering questions about the allegation.
YOU HAVE THE RIGHT TO KNOW WHY YOU ARE BEING ARRESTED
A person who is arrested has the right to be informed promptly, in a language they understand, of the reason for the arrest.
If you do not understand what is happening, ask the police officer to explain the reason for your arrest.
Do not assume that an arrest automatically means you have been found guilty. An arrest is part of the criminal process. Whether a person is ultimately convicted is a matter for the court.
YOU HAVE THE RIGHT TO A LAWYER
If you are detained, you have the right to choose and consult with a legal practitioner and to be informed promptly of that right.
If you cannot afford legal representation, you may qualify for a lawyer at state expense where substantial injustice would otherwise result. Legal Aid South Africa provides legal assistance subject to its applicable requirements.
So, do not assume that every arrested person automatically receives a free private lawyer. But if you need legal assistance and cannot afford a lawyer, ask about Legal Aid and your entitlement to legal representation.
South African law also recognises the right to legal representation at state expense in appropriate circumstances where substantial injustice would otherwise result.
THE 48-HOUR RULE: HOW LONG CAN POLICE KEEP YOU?
The Constitution provides that an arrested person must be brought before a court as soon as reasonably possible.
As a general rule, this must happen no later than 48 hours after the arrest.
There is an important exception. If the 48-hour period expires outside ordinary court hours or on a day that is not an ordinary court day, the person must generally be brought before a court by the end of the first court day after the 48-hour period expires.
At the first court appearance, the person must be charged, informed of the reason for the continued detention, or released.
This does not mean that every person automatically walks free after 48 hours. The 48-hour rule concerns the time within which an arrested person must be brought before a court. The court then deals with the next stage of the case, including issues such as continued detention and bail.
BAIL IS NOT AUTOMATIC
Being arrested does not mean you will automatically be granted bail.
The Constitution provides that an arrested person has the right to be released from detention if the interests of justice permit, subject to reasonable conditions.
The Criminal Procedure Act contains the detailed rules governing bail, and the procedure can differ depending on the offence and circumstances of the case.
In other words, bail is a legal process — not simply a payment that guarantees your release.
POLICE CANNOT TORTURE OR FORCE A CONFESSION OUT OF YOU
You cannot lawfully be forced to make a confession or admission that could be used against you.
South African law also has specific rules governing the admissibility of confessions. A confession must satisfy the requirements of the Criminal Procedure Act before it can be admitted into evidence.
If you are threatened, assaulted or pressured into confessing, tell your lawyer or raise the issue with the court.
Do not try to fight with the police. If you believe your rights have been violated, make a note of what happened and tell your legal representative as soon as possible.
CAN THE POLICE SEARCH YOU?
Sometimes, yes.
The police have statutory powers to search an arrested person and to seize certain articles found in that person’s possession, custody or control.
However, an arrest does not give police unlimited permission to search absolutely everything belonging to you.
Different rules apply to searches of property, premises, vehicles and other items. Depending on the circumstances, a warrant may be required, although the Criminal Procedure Act also provides for certain warrantless searches where the legal requirements are met.
For example, a warrantless search may be permitted in circumstances where the law allows it and there are reasonable grounds to believe that a search warrant could have been issued and that waiting to obtain the warrant would defeat the purpose of the search.
So, the simple rule is:
Do not physically resist a search, but remember that police search powers are not unlimited.
If you believe a search was unlawful, raise the issue with your lawyer rather than turning the situation into a confrontation.
WHAT ABOUT YOUR FINGERPRINTS AND PHOTOGRAPH?
South African law gives police specific powers relating to fingerprints, palm-prints, foot-prints, photographs and other bodily features in circumstances prescribed by the Criminal Procedure Act.
These procedures can be used for purposes such as identifying a person and investigating criminal charges.
This means you should not assume that you can simply refuse every identification procedure after an arrest.
The police powers are governed by legislation, however, so the exact circumstances and procedure matter.
YOU HAVE THE RIGHT TO CHALLENGE UNLAWFUL DETENTION
If you believe your detention is unlawful, the Constitution gives a detained person the right to challenge the lawfulness of that detention before a court.
If the detention is unlawful, the person has the right to be released.
You also have the right to humane conditions while detained. The Constitution requires detention conditions to be consistent with human dignity and provides important protections concerning matters such as accommodation, nutrition, reading material, exercise and medical treatment.
WHAT SHOULD YOU DO IF YOU ARE ARRESTED?
The safest practical approach is:
- Stay calm.
- Do not physically resist a lawful arrest.
- Ask why you are being arrested.
- Remember that you have the constitutional right to remain silent.
- Ask to speak to a legal practitioner.
- Do not sign documents you do not understand simply because you feel pressured to do so.
- Do not attempt to argue your entire case with the police at the roadside or in the police station.
- If you believe the police have acted unlawfully, make a note of what happened and tell your lawyer.
- And remember: being arrested is not the same thing as being convicted.
KNOW YOUR RIGHTS — BUT KNOW THEIR LIMITS TOO
Your constitutional rights are there to protect you, but they do not mean that police have no powers.
SAPS can make arrests where the law permits it, conduct searches in circumstances authorised by law, investigate alleged crimes and follow prescribed identification procedures.
At the same time, police officers must operate within the Constitution and the law. SAPS itself has acknowledged that unlawful arrests and unlawful searches are not permitted and has issued standards dealing with arrest procedures and the treatment of people in custody.
The best approach if you are arrested is therefore simple:
Stay calm. Don’t physically resist. Ask why you are being arrested. Exercise your right to remain silent when appropriate. Ask for legal advice.
Knowing your rights before you need them can make a frightening situation a little easier to navigate.
If you or someone close to you has been arrested, detained or charged with a criminal offence, consider obtaining advice from a qualified South African legal practitioner as soon as possible.
Been Cuffed? We Can Help!
If you or someone you know gets arrested, don’t panic! Contact BBP Law’s experienced criminal defence team. We’ll fight for your rights and help you navigate the legal system. Remember, knowledge is power, and knowing your rights can make all the difference in the outcome of your case.
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