Your Rights When Arrested in South Africa
Know your constitutional rights if you are arrested. What police can and cannot do, your right to remain silent, bail, and when to call a lawyer.
Your Constitutional Rights
Section 35 of the South African Constitution guarantees specific rights to anyone who is arrested. These rights are non-negotiable—police must respect them.
The Right to Remain Silent
You have the right to remain silent. You do not have to answer questions or make statements, except to provide your name and address.
Important: Anything you say can be used against you in court. It is almost always better to say nothing until you have spoken to a lawyer.
The Right to Be Informed
The police must tell you:
- Why you are being arrested (the charge or reason).
- Your right to remain silent.
- Your right to a lawyer.
- That if you cannot afford a lawyer, one will be provided (Legal Aid).
The Right to a Lawyer
You have the right to consult with a lawyer immediately after being arrested.
If you cannot afford a lawyer, you can apply for Legal Aid South Africa, which provides free legal representation.
The Right to Be Brought Before a Court
You must be brought before a court within 48 hours of your arrest (excluding weekends and public holidays).
The Right to Humane Treatment
Police may not:
- Assault or torture you.
- Use excessive force.
- Deny you food, water, or medical treatment.
What Police Can and Cannot Do
Police CAN:
- Arrest you without a warrant if they have reasonable suspicion.
- Search you for weapons or evidence at the time of arrest.
- Take your fingerprints and photograph.
- Hold you in custody until you appear in court (up to 48 hours).
Police CANNOT:
- Arrest you without a reason.
- Force you to make a statement.
- Deny you access to a lawyer.
- Use violence or intimidation to get a confession.
- Search your home without a warrant (except in urgent circumstances).
What to Do If You Are Arrested
Step 1: Stay Calm
Do not resist arrest, even if you believe it is unlawful. Resisting can lead to additional charges.
Step 2: Ask Why You Are Being Arrested
Politely ask the officer to explain the reason.
Step 3: Exercise Your Right to Remain Silent
Say: "I wish to remain silent. I want to speak to a lawyer."
Do not answer questions, make excuses, or try to explain yourself.
Step 4: Contact a Lawyer Immediately
Ask to make a phone call to contact a lawyer or family member.
Step 5: Do Not Sign Anything
Do not sign documents, statements, or confessions without your lawyer present.
Step 6: Remember Details
Try to remember:
- Names and badge numbers of arresting officers
- Time and place of arrest
- Any witnesses
- What was said to you
Bail: Your Right to Freedom Before Trial
Bail is money or a guarantee that you will appear in court.
How Bail Works
- You appear in court within 48 hours of arrest
- The court decides whether to grant bail and sets the amount
- If you pay bail, you are released
- You must attend all court dates
Factors the Court Considers
- The seriousness of the crime
- Whether you are a flight risk
- Whether you pose a danger to the public
- Your criminal history
- Your ties to the community
When Bail May Be Denied
- Serious crimes like murder, rape, or armed robbery
- Repeat offenders
- Cases where the accused is likely to flee
Legal Aid: Free Legal Representation
If you cannot afford a lawyer, you can apply for Legal Aid South Africa.
Who Qualifies?
- Monthly income below around R6,000 for individuals
- Facing criminal charges
How to Apply
Contact Legal Aid at court or call: 0800 110 110
Unlawful Arrest: What to Do
If you believe your arrest was unlawful, you can:
1. Challenge It in Court
Your lawyer can argue the arrest was unlawful.
2. Lodge a Complaint
File a complaint with the Independent Police Investigative Directorate (IPID):
- Phone: 012 399 0000
- Email: complaints@ipid.gov.za
3. Sue for Damages
You can sue the police for unlawful arrest, assault, or malicious prosecution.
Common Mistakes to Avoid
1. Talking to Police Without a Lawyer
Many people incriminate themselves. Stay silent.
2. Resisting Arrest
Even if the arrest is unlawful, resisting adds charges. Challenge it in court.
3. Signing Documents You Don't Understand
Never sign anything without your lawyer present.
Key Takeaways
- You have the right to remain silent—use it.
- You have the right to a lawyer—request one immediately.
- Police must tell you why you're being arrested.
- You must be brought before a court within 48 hours.
- Do not resist arrest, even if you believe it's unlawful.
- Legal Aid is available if you cannot afford a lawyer.
- Never sign documents without your lawyer present.