How long can the police hold you without charging you?

Keep these numbers where you can reach them. SAPS is 10111. Legal Aid South Africa is 0800 110 110 and represents accused people in criminal matters, subject to a means test. Police misconduct, including assault by police and deaths in custody, goes to the Independent Police Investigative Directorate.

The short answer is 48 hours. An arrested person must be brought before a court within 48 hours of the arrest. If that 48 hours expires outside ordinary court hours, or on a day that is not a court day, the period extends to the end of the first court day after that. This comes from section 35 of the Constitution of the Republic of South Africa, 1996, and is carried through the Criminal Procedure Act 51 of 1977.

What the 48 hours actually means

The clock starts when you are arrested, not when you arrive at the station and not when the paperwork is done.

The extension is where most confusion sits. If your 48 hours would run out at eleven o'clock on a Saturday night, courts are not sitting. The period then runs to the end of the first court day after that, which is usually the Monday. A public holiday on the Monday pushes it to the Tuesday. This is lawful and it is not the police stretching the rules.

What the rule does not allow is indefinite detention. The police cannot hold you for a week while they finish investigating. If the 48 hours as extended has passed and you have not been brought before a court, that is a serious problem and it is the moment to phone a legal practitioner or Legal Aid.

Detained is not the same as charged

People often ask how long the police can hold them "without charging" them. In practice the charge is formally put to you in court, at your first appearance. Before that, you should be told the reason for your arrest, but the formal charge and the decision to prosecute are not the police's to make. That decision belongs to the prosecuting authority, which considers the docket and decides whether to proceed.

So three things can happen inside the 48 hours. You can be released, with or without police bail. You can be brought to court, where the charge is put. Or the prosecutor can decide there is not enough to proceed and you are released without appearing.

What the police may do while you are held

They may keep you in a cell, record your details, take fingerprints and photographs, search you and your possessions, and continue investigating. They may ask you questions. You do not have to answer.

They may not force a confession or admission out of you, refuse you access to a legal practitioner, deny you medical treatment, or hold you past the 48 hour rule without bringing you to court. Force used in an arrest must be reasonable and proportionate.

Children are a separate matter. A child who is arrested is dealt with under the Child Justice Act 75 of 2008, which sets up its own process for children in conflict with the law, including a preliminary inquiry and the possibility of diversion, and which treats the detention of a child as a last resort. If a child has been arrested, say so immediately and ask for the probation officer.

A worked example

The names and facts here are illustrative only.

Sipho is arrested at seven on a Thursday evening in connection with a burglary. The 48 hours would ordinarily run out at seven on the Saturday evening. Because that falls outside ordinary court hours and Saturday is not an ordinary court day, the period runs to the end of the first court day after that, the Monday.

Sipho asks for the case number and the investigating officer's name and gives them to his aunt when she visits on the Friday. He declines to answer questions about the burglary and says he wants a lawyer. His aunt phones Legal Aid South Africa and is told to speak to the Legal Aid practitioner at the court on Monday.

On the Monday morning Sipho is taken to court. The charge is put, he says he wants a lawyer and cannot afford one, a Legal Aid attorney is appointed, and the matter is postponed for further investigation with bail to be considered at the next appearance.

If Monday had come and gone with Sipho still in the cells and no court appearance, that would have been the point at which his aunt should have phoned a legal practitioner, Legal Aid, or the station commander, and put the complaint in writing.

What to do in the first 48 hours

1. Write down the time of arrest. Not the time you got to the station. The time of arrest. This is the fact everything else is measured from.
2. Say you choose to remain silent and want a lawyer, then stop discussing the facts.
3. Get the case number, the station, and the investigating officer's name and number.
4. Ask whether police bail is available on the charge.
5. Ask for a doctor if you are hurt or on chronic medication, and ask for it to be recorded.
6. Have a family member phone Legal Aid South Africa on 0800 110 110 and ask where the Legal Aid practitioner sits at that court.
7. Count the 48 hours out loud with your family, allowing for the court day extension, so everyone knows which morning to expect an appearance.
8. If the deadline passes with no court appearance, ask for the station commander, ask for the reason in writing, and phone a legal practitioner.

What to take or send to the police station

• Your identity document, or a clear photograph of it
• Proof of address, such as a municipal bill, a lease or an affidavit from the property owner
• Proof of employment or income
• Chronic medication in its original packaging, with the prescription
• The details of someone willing to stand as surety for bail
• Warm clothing and, where the station allows it, food

Do not send messages about what happened. Talk about clothes, medication and bail, not about the facts of the case.

A realistic timeline

Hour zero. Arrest. The clock starts.

The first hours. Booking in, notice of rights, possible questioning, and a decision on police bail where the offence allows it.

Within 48 hours. A court appearance, unless you are released first.

Where the 48 hours ends outside court hours. The period runs to the end of the first court day after that. A Friday or Saturday arrest commonly means a Monday appearance.

At the first appearance. The charge is put, bail is considered or postponed, and the matter is usually postponed for investigation or for a Legal Aid attorney to be appointed. See what happens at your first court appearance.

Common mistakes and what they cost

Not noting the time of arrest. Without it you cannot say whether the 48 hours has passed, and a complaint becomes a difference of opinion.

Answering questions to speed things up. It does not speed anything up. The 48 hours runs whether you talk or not, and what you say stays in the docket.

Waiting quietly past the deadline. Nothing happens automatically. Someone has to ask, and ask in writing.

Not asking for a doctor. Injuries that are not recorded at the time are very hard to prove later, which matters if you want to complain to the Independent Police Investigative Directorate.

Assuming release means the case is over. Being released inside the 48 hours does not always end the matter. Ask whether you are being warned to appear in court on a later date, and diarise it.

Your rights and the police's powers, side by side

You have the right to be told promptly the reason for your arrest, to remain silent and be warned of that right, not to be compelled to make a confession or admission, to consult a legal practitioner of your choice and to be told of that right, to a legal practitioner at state expense where substantial injustice would otherwise result, to conditions of detention consistent with human dignity including food and medical treatment, to communicate with and be visited by your spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner, to be brought before a court within 48 hours as extended, and to be released on reasonable conditions if the interests of justice permit.

The police may arrest you where the law allows it, detain you until your court appearance, search you and your possessions incidental to the arrest, take fingerprints and photographs, question you, and continue investigating while you are held. They may not detain you past the 48 hour rule without bringing you to court, force a statement out of you, block access to a legal practitioner, or refuse medical treatment.

If you have been held too long

Say so, in the cells and in court. At your first appearance, tell the magistrate the date and time you were arrested. The court is entitled to know, and unlawful detention is something a court takes seriously.

Outside court, ask for the station commander and put a written complaint on record. Where the complaint is about assault, torture or a death in custody, that goes to the Independent Police Investigative Directorate, which was established under the Independent Police Investigative Directorate Act 1 of 2011. A complaint there runs alongside your criminal case, not instead of it.

If you cannot afford an attorney

Tell the court out loud that you want a lawyer and cannot afford one. Do not assume the record will show it otherwise.

Legal Aid South Africa on 0800 110 110 represents accused people in criminal matters, subject to a means test, under the Legal Aid South Africa Act 39 of 2014. Practitioners are frequently based at the court itself. See Legal Aid.

University law clinics give free advice and are worth a phone call to the nearest law faculty.

If you are weighing a private attorney, what a criminal matter costs explains how fees usually work.

Frequently asked questions

People ask whether a weekend counts in the 48 hours. It does, but the period extends to the end of the first court day where it would otherwise expire outside ordinary court hours or on a day that is not a court day. They ask whether they must be charged before being held, and the answer is that you must be told the reason for your arrest, while the formal charge is put in court. They ask whether the police can hold them longer if the investigation is not finished, and they cannot: the answer is to bring you to court and ask for a postponement there. They ask what happens if the deadline is missed, and the answer is to raise it with the magistrate at the first opportunity and to get legal help.