A guide for expatriates arrested in South Africa
Arrest is one of the scariest things that can happen to anyone. If you are not a South African citizen or permanent resident, the experience can be even more terrifying. Will you be deported? Will you be deprived of your passport? What are your rights as an expatriate if you find yourself under arrest? In fact, the legal process for a non-South African closely mirrors that for South African citizens. This article provides foreign nationals with vital information regarding your legal rights, the legal process, and how to navigate the situation if it should arise.
Understand your rights
Section 35 of the South African Constitution grants certain rights to individuals upon arrest, whether they are citizens or expatriates. These include the right to be informed of the charges against you in a language you understand, the right to remain silent, and the right to legal representation. These rights ensure fair treatment within the legal system.
Court appearance
If you are arrested and detained, you must be presented before a court within 48 hours of your arrest. However, if you are arrested on a Friday or over the weekend, you may have to wait until the next working day. You are likely to remain in detention until Monday, because the courts do not sit at the weekend.
Bail
You may be offered the opportunity to be released on bail. Bail is the payment of a fee (security) in exchange for your release until trial. The fee is refundable after your trial, even if you are found guilty. The amount of bail varies according to the seriousness of the offence and other factors, and is set by the magistrate. It is not merely a token amount, as it is designed to be a deterrent to flight. For this reason, not all expats are able to raise bail. Bail is not an automatic right. Less serious offences (e.g., theft under R2500, common assault, or exceeding the speed limit) qualify for police bail, which is normally granted. You can apply for police bail at the police station when you are arrested, and must apply within 48 hours of arrest. You may be denied bail if the offence is serious, e.g., grievous bodily harm or robbery, if you pose a danger to the public, or are a flight risk. In those instances, you will be detained in custody until your trial date.
Common causes of expatriate arrest
Everyone in South Africa, regardless of their nationality, has an obligation to obey the laws of the land. Breaking any law may be grounds for arrest. However, foreign nationals may be arrested for reasons that don’t apply to citizens or permanent residents. Expatriates often face charges related to visa and permit issues such as:
- Not being in possession of a visa or permit
- Being in possession of an expired visa or permit
- Being in possession of a visa or permit which is suspected to be forged or fake
- Contravening the conditions of a visa or permit by studying, working or running a business
Section 60 of the South African Criminal Procedure Act governs the consideration of bail in criminal cases, including the severity of the offence, community ties, and flight risk. Although there’s a misconception that foreign nationals are always flight risks, South African courts have affirmed that the burden of proof in bail applications is the same for both citizens and expatriates.
Seek legal and consular assistance
Engaging a seasoned attorney promptly is crucial. An attorney will explain the charges, provide legal advice, and ensure the protection of your rights throughout the process. Keep in mind that the specific details of your arrest, the charges, and other factors can significantly influence your situation. Consult with a legal professional such as SD Law who can provide tailored advice for your case.
You should also reach out to your embassy, High Commission, or consulate in South Africa for assistance and support. Diplomatic officials can offer valuable information and assistance in cases of expatriate arrest.
If you are arrested…
Facing legal issues as an expatriate in South Africa can be daunting. We are dedicated to offering the legal assistance you need, ensuring a thorough understanding of the process, and advocating for your rights within the South African legal framework. Get in touch using this contact form. We will require some basic information and any relevant documents concerning your case for a comprehensive assessment. Or give us a call on 076 116 0623. If you don’t need us now, save the number in your phone just in case.
Further reading:
- What to do if you are arrested
- Seven tips if you are arrested
- Why do you need a criminal defence attorney?
- Understanding bail and how it works