What are your rights when you are arrested in South Africa?

If someone has just been arrested, keep three numbers to hand. The police emergency number is 10111. Legal Aid South Africa is on 0800 110 110 and represents accused people in criminal matters, subject to a means test. Police misconduct, including assault by police or a death in custody, goes to the Independent Police Investigative Directorate.

Being arrested does not take your rights away. It is the moment they matter most. Section 35 of the Constitution of the Republic of South Africa, 1996 sets out the rights of arrested, detained and accused persons, and the Criminal Procedure Act 51 of 1977 sets out the machinery around them. In short, you have the right to stay silent, to be told why you are being arrested, to speak to a lawyer, to be held decently, and to be taken to court within 48 hours.

The rights you have from the moment of arrest

These are the rights that apply to you as an arrested person.

• To remain silent. You do not have to answer questions about the offence. You must be told promptly that you have this right, and told what the consequences of speaking may be.
• Not to be compelled to make a confession or admission that could be used in evidence against you. Nobody may force a statement out of you.
• To be told the reason for your arrest. You are entitled to know what you are said to have done.
• To consult a legal practitioner of your choice, and to be told that you have that right.
• To have a legal practitioner assigned at state expense if substantial injustice would otherwise result. This is where Legal Aid South Africa, set up under the Legal Aid South Africa Act 39 of 2014, comes in.
• To conditions of detention consistent with human dignity, including food and medical treatment.
• To communicate with and be visited by your spouse or partner, your next of kin, a religious counsellor of your choice, and a medical practitioner of your choice.
• To be released on reasonable conditions if the interests of justice permit, in other words to be considered for bail.
• To be presumed innocent and to a fair and public trial.

How an arrest usually unfolds

You are arrested. An officer tells you that you are under arrest and why. You may be searched and handcuffed. Force used in an arrest must be reasonable and proportionate. Resisting turns a manageable situation into a second charge.

You are taken to a police station. Your details go into the station records and your possessions are booked in. Ask for a written list of what was taken from you.

You are warned. You should be given a written notice of rights and asked to sign that you received it. Signing that you received the notice is not the same as agreeing with anything the police say.

You may be questioned. You can decline. Say clearly, once and politely, "I choose to remain silent and I want to speak to a lawyer." Then stop.

Police bail may be considered. For less serious offences a police official may grant bail at the station before your first court appearance, and for certain offences a prosecutor may grant bail before that appearance. For serious matters neither is available and the court decides.

You are taken to court. You must be brought before a court within 48 hours of your 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.

A worked example

The names and details here are illustrative only and are not a real case.

Thabo is arrested on a Friday evening after a fight outside a tavern. The officer tells him he is being arrested for assault. At the station he is asked to explain his side. He remembers that he does not have to, says he wants to remain silent and wants a lawyer, and asks to phone his sister.

His sister arrives with his identity document, his chronic medication and the name of a witness. She writes down the station name, the officer's name and the case number. Thabo is told he cannot get police bail on this charge, so he will see a magistrate.

Because Friday evening plus 48 hours falls over a weekend, Thabo appears in court on Monday morning. That is lawful. At the appearance the charge is put to him, he says nothing about the merits, a Legal Aid attorney is appointed, and the matter is postponed for a bail application later that week.

What made the difference was not clever argument. It was silence, one phone call, and a family member who wrote things down.

What to do in the first 48 hours

1. Say the sentence and stop. "I choose to remain silent and I want to speak to a lawyer." Repeat it if you need to. Do not explain, argue or fill silences.
2. Ask what you are charged with and write it down, or have your family write it down.
3. Ask for the case number, the station name and the investigating officer's name and contact number.
4. Phone one person who will act, not the person who will panic. Give them the station and the case number.
5. Ask for a doctor if you are hurt, ill or on chronic medication. Ask for the injury to be recorded.
6. Do not sign anything about the facts. Signing that you received a notice of rights is fine. Signing a statement about what happened is not.
7. Ask whether police bail is possible on your charge.
8. Have someone start on bail by collecting proof of address, proof of income and a surety who can attend court.

What to take or send to the police station

Family members should bring or send:

• Your identity document or a clear photograph of it
• Proof of residential address, such as a municipal bill or a letter from a landlord or ward councillor
• Proof of employment or income, such as a payslip or a letter from an employer
• Any chronic medication, in its original packaging, with the prescription
• The contact details of a person willing to stand as surety
• Warm clothing and, if the station allows it, food
• A written list of witnesses with contact numbers

A realistic timeline

Hour zero. Arrest, transport to the station, booking in, notice of rights.

The first few hours. Questioning may be attempted. Police bail is considered where the offence allows it.

Within 48 hours. You must be brought before a court. If the 48 hours ends outside ordinary court hours or on a day that is not a court day, it runs to the end of the first court day after that. A Friday night arrest therefore usually means a Monday appearance.

The first appearance. Usually short. The charge is put, bail is considered or postponed, and the matter is postponed for investigation or for a Legal Aid attorney to be appointed.

Common mistakes and what they cost

Explaining yourself. The most common and most expensive mistake. People talk to clear things up and hand the state its case. Silence is not an admission.

Signing a statement you have not read. Once a signed statement is in the docket, disputing it becomes a fight of its own.

Losing your temper or resisting. This can add charges and can turn a bail application into an uphill one.

No proof of address. Bail decisions turn on whether you will come back to court. A person with no verified address is harder to release.

Not recording injuries. If you are injured in custody and no doctor sees you, a later complaint has almost nothing to work with.

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

You have the right to remain silent and be warned of it, to be told why you were arrested, to consult a legal practitioner of your choice, 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, to be considered for release on reasonable conditions where the interests of justice permit, to be presumed innocent, and to a fair and public trial.

The police have the power to arrest you where the law allows it, including without a warrant in defined situations, to use force that is reasonable and proportionate, to search you incidental to the arrest, to detain you until your court appearance, and to investigate. They may not hold you past the 48 hour rule without bringing you to court, force a confession out of you, refuse you access to a lawyer, or deny you medical treatment.

Read more in can the police arrest you without a warrant and how long can the police hold you without charging you.

If you cannot afford an attorney

Tell the court. At your first appearance, say out loud that you want a lawyer and cannot afford one. The court must know this. It is not a favour you are asking for.

Legal Aid South Africa on 0800 110 110 represents accused people in criminal matters, subject to a means test that looks at your income and household circumstances. Legal Aid practitioners are often at the court itself. See Legal Aid for how the means test works.

University law clinics in most cities give free advice. Phone the law faculty of your nearest university and ask for the legal aid clinic.

The Independent Police Investigative Directorate, established under the Independent Police Investigative Directorate Act 1 of 2011, handles complaints of police misconduct, including assault by police and deaths in custody. That complaint is separate from your criminal case.

If you are considering a private attorney, what a criminal matter costs sets out the fee structures you will hear about.

Frequently asked questions

People most often ask whether staying silent makes them look guilty. It does not, and a court may not treat your silence as proof that you committed the offence. They ask whether the police can keep them over a weekend, and the answer is that the 48 hours extends to the end of the first court day where it would otherwise expire outside court hours. They ask whether family may visit, and you are entitled to be visited by your spouse or partner and your next of kin. Finally, they ask whether a case can simply be dropped at the station. The decision to prosecute belongs to the prosecuting authority, not the police and not the complainant.