June 21, 2017
June 21, 2017

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. Section 38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. Arrest;
  2. Summons;
  3. written notice; and
  4. Indictment.

The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution.

 When can a person be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

What rights does a person have when arrested?

If someone has, or is in the process of being arrested, they have the right to be informed of the charges on which they are being arrested. Most importantly, they have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against them in court.

  1. A person has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after being arrested.
  2. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

After an arrest a person will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search.

What rights does a person have when being detained?

When being detained, a person must be informed promptly of the reason.

  • The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
  • Be presumed innocent until proven guilty.

Police bail and warning

For minor offences ’police bail’ can be granted or the police may release a detainee on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail.

After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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