What happens when you are arrested in South Africa?
You’ve committed a crime, or the police think you’ve committed a crime. You’ve been arrested. What happens next and what are your rights as an arrestee? How do you make sure your rights are upheld?
Being arrested is a stressful and intimidating experience, but knowing your rights can help protect you and ensure fair treatment. What should you do and, more importantly, what should you not do if you are arrested?
Legal framework
The rules governing arrests are set out in the Criminal Procedure Act 51 of 1977 (CPA), which provides the legal framework for law enforcement officers when detaining individuals suspected of committing crimes. This law ensures arrests are conducted lawfully, balancing the rights of the accused with the need to maintain public order and safety. Section 35 of the Constitution serves as a fundamental safeguard for the rights of individuals who have been arrested, detained, or accused of criminal offences. This section addresses the rights of individuals from the moment of arrest throughout their criminal trial, ensuring fairness and protection under the law.
Circumstances for arrest
An arrest can take place with or without a warrant, depending on the situation:
- Arrest with a warrant: when a warrant is issued, the police must present it to the individual being arrested unless the circumstances require immediate action (e.g., if the suspect is attempting to flee).
- Arrest without a warrant: this can occur under specific conditions, such as when a police officer directly witnesses a crime being committed or has reasonable suspicion that a person has committed or is about to commit an offence.
Reasonable suspicion means that a police officer has valid grounds, based on specific facts, observations or evidence, to believe someone is involved in a crime. This suspicion must be based on objective and tangible evidence, not just a general feeling or intuition. Examples include physical evidence, witness statements or behaviour that strongly suggests criminal activity.
Rights of the accused
If a police officer approaches you:
- Remain calm and do not attempt to run away
- Cooperate with the officer without resisting
- Do not offer a bribe, as this is a criminal offence
If you resist arrest, the police may use reasonable force to detain you. Once arrested, you have several legal rights under the CPA:
- The right to be informed: the police must tell you why you are being arrested, in a language you understand.
- The right to remain silent: you are not required to answer any questions beyond confirming your identity. Anything you say can be used against you in court.
- The right to legal representation: you have the right to consult a lawyer of your choice. If you cannot afford one, you may request a state-appointed attorney at no cost.
- The right to be taken to court promptly: you must appear before a court within 48 hours of your arrest. If arrested on a weekend or public holiday, you must be brought before a court on the next working day.
- The right to refuse to sign documents: do not sign any statements or confessions without legal advice.
- The right to a fair trial: you are presumed innocent until proven guilty.
After your arrest you have the right to:
- Be detained in humane conditions (adequate food, medical care and exercise)
- Communicate with family members, a lawyer and a religious counsellor
- Be informed of your rights in a language you understand
What happens next?
For minor offences the police may grant bail, allowing you to pay an agreed amount for release. The police may release you on a warning, requiring you to appear in court on a specified date. A senior officer must approve any police bail decision. If you are denied police bail, you will be brought before a court where you may apply to be released on warning or bail if the case is not finalised that day
During this court appearance, the charges are presented and you can apply for bail. By paying bail, you promise to come to court for future hearings and agree that, should you not return, the money paid as bail may be forfeited to the state. When the case is over, the bail money is returned. However, bail is not guaranteed and may be denied if the court thinks you pose a risk to the public or you are a flight risk.
. When applying for bail, you must convince the court that:
- You will attend all hearings
- You are not a danger to others
- You will not commit further crimes
- You will not intimate any witnesses
There are usually bail conditions set by the presiding officer. Once granted bail, the court is of the view that you will stand your trial and are not a flight risk or a danger to the community.
If you think your arrest is unlawful
In cases of unlawful arrest, detention or infringement of rights by law enforcement, you can pursue a civil claim for damages. This can include compensation for lost earnings, medical expenses, loss of support, and general damages for any suffering you endured during your detention.
In essence, Section 35 of the South African Constitution and the Criminal Procedure Act establish critical protections to uphold the rights of accused individuals, ensuring fair treatment and due process within the country’s legal system.
Let our law firm help you
Cape Town attorneys SD Law & Associates Inc. are experienced criminal attorneys and bail lawyers. If you have been charged with an offence, or have any questions about any aspect of criminal law, call Simon on 086 099 5146 or email simon@sdlaw.co.za