The Criminal Procedure Act 51 of 1977 provides strict guidelines as to when and how a person may be arrested, which include the instances where a police officer witnesses an offence being committed or where a warrant of arrest has been issued. In these instances, a police officer may arrest and detain an individual prior to bringing them before a court of law or releasing them with a warning.

It is important to note that it is not up to any individual police officer to determine a person’s guilt, but rather to gather evidence proving that you have committed an offence. It is also crucial to ensure that the rights as enshrined in the Constitution of the Republic of South Africa are protected at all costs.

Rights of the arrested or detained persons

Section 35 of the Constitution provides for the rights of arrested or detained persons and states that an arrested or detained person has:

• The right to remain silent;

• The right to be promptly informed of the right to remain silent and the consequences should you elect not to remain silent;

• The right not to be compelled to make any submission or adduce evidence which can be used as evidence against that person;

• The right to be brought before a court of law within 48 hours of being arrested;

• The right to seek legal counsel, which right can be exercised prior to making any statement to the police;

• The right to be held in conditions consistent with the right of human dignity; and

• The right to a fair public trial.

What to expect when you are arrested?

If you are arrested by a member of the South African Police Service and detained thereafter, there is no reason to panic. As mentioned above, an arrested person must be brought before a court of law within 48 hours of being arrested. This does not take into account weekends, however. If a person is arrested on a Friday they will likely have to spend the weekend in detention before being brought before a Magistrate the following Monday.

On the day of an accused person’s first appearance before the court, the charges will be put to the accused person and the accused will be entitled to apply to the court for bail.

It is important to remember that not all persons who are arrested are entitled to bail. Ordinarily, bail will be denied where the arrested individual could pose a danger to the public or where you are a flight risk. In those instances, that individual will be detained in custody until their trial date.

Following this, the court will allocate a date for trial and the matter will proceed to hearing.

What are your rights where you have been unlawfully arrested, detained or where your rights are infringed whilst detained?

Where an individual has been unlawfully arrested, detained or otherwise had their rights infringed by a member of the South African Police Service or other Police Department, that person may be entitled to a civil claim for damages including a loss of earnings whilst detained, any past or future hospital or medical expenses incurred as a result of the detention, loss of support where an individual is the dependent of someone who died whilst in detention, or general damages for pain and suffering.

For more information relating to the legalities of arrest and your rights, please email us on info@hjw.co.za.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.