Your rights if you are arrested

Being arrested is frightening, whether or not you have done anything wrong. In that moment the police have power over you, but you also have rights. Section 35 of the Constitution protects everyone who is arrested, detained or accused of a crime. Knowing these rights can stop you from making mistakes that are hard to undo.

Your rights when you are arrested

Under section 35 of the Constitution, you have the right:

• to be told why you are being arrested and held. The police must tell you the reason promptly.
• to remain silent. You must also be told promptly that you have this right, and what can happen if you choose to speak.
• not to be forced to confess or to make any admission that could be used against you.
• to choose a lawyer and speak to them, and to be told about this right promptly.
• to a lawyer provided by the state, and to be told about this right promptly. If you cannot afford a lawyer, Legal Aid South Africa can provide one if you qualify.
• to be brought before a court within 48 hours. This is explained below.

Using your right to remain silent

1. Give your name and address. Give your correct details if the police ask for them. Beyond that, you do not have to answer questions.
2. Say clearly that you want a lawyer. For example: "I want to speak to a lawyer before I answer any questions."
3. Don't sign anything you don't understand. This includes a statement written by someone else. If you do decide to make a statement, read it carefully first, and ask for an interpreter if you need one.
4. Don't discuss the case with others in the cells. What you say to other people can be repeated later.
5. Stay polite. Choosing to remain silent is your constitutional right. You can use it calmly and respectfully.

While you are being held

Section 35 also protects you while you are in police custody. You have the right:

• to conditions that respect your dignity, including adequate food, accommodation and medical treatment;
• to communicate with and be visited by your spouse or partner, your next of kin, a religious counsellor and a doctor of your choice;
• to challenge the lawfulness of your detention before a court, and to be released if your detention is unlawful.

In practice:

• tell the police about any injury, illness or medicine you need;
• ask to let your family know where you are;
• note the names of officers you deal with, and the times things happen, as soon as you can.

Going to court within 48 hours

You must be brought before a court as soon as reasonably possible, and no later than 48 hours after your arrest. The Constitution allows one exception. If the 48 hours end outside ordinary court hours, or on a day that is not a court day, such as a weekend or public holiday, you must be brought to court by the end of the next court day.

At your first appearance, the court must either charge you, tell you why you are still being held, or release you. You have the right to be released if the interests of justice allow it, on reasonable conditions. This is usually done through bail. For some less serious offences, the police can grant bail before you go to court. Our guide bail explained covers this in detail.

If you don't have a lawyer by your first appearance, tell the court that you want legal representation and that you would like a Legal Aid lawyer if you cannot afford one.

Your rights at trial

If your case goes to trial, section 35 gives you the right to a fair trial. This includes the right:

• to be told the charge in enough detail to answer it;
• to have enough time and facilities to prepare your defence;
• to be presumed innocent, to remain silent, and not to testify;
• to be represented by a lawyer;
• to present evidence and to challenge the evidence against you;
• to be tried in a language you understand, or to have the proceedings interpreted;
• to a trial that begins and ends without unreasonable delay;
• to appeal to a higher court if you are convicted.

If your rights are not respected

• Tell your lawyer and the court. A court can refuse to allow evidence that was obtained by violating your rights.
• Report abuse by the police. If you were assaulted, tortured or asked for a bribe while in custody, you can report it to the Independent Police Investigative Directorate (IPID).
• Ask about a claim. If you were wrongly arrested or held, you may be able to claim damages. Strict time limits apply, so get legal advice soon. See after a case is withdrawn or you are acquitted.

If you are being accused of something you didn't do, also read if you are falsely accused.

Getting support

• For legal advice, call the Legal Aid South Africa Advice Line on 0800 110 110. See also finding legal help you can afford.
• If you are struggling to cope after an arrest, call Lifeline South Africa on 0861 322 322, or the SADAG Suicide Crisis Helpline on 0800 567 567. Both are open 24 hours a day.
• In an emergency, call 10111, or 112 from a cell phone.
• You can share your experience anonymously at /report, and tick the support box if you would like someone to contact you.
• To reach the Men for Change support team, go to /contact?topic=support.
• More helplines are listed at /resources.