Your Rights Upon Arrest: Constitutionally Protected

Rita Moodley – Candidate Attorney

What are my rights upon arrest?

Bail is a universally recognized process in democratic legal systems.  An arrested person has the right to be released from detention if the interests of justice permit, subject to reasonable conditions, pending finalization of the case.  The procedure for an application for the release of an accused person on bail depends on the seriousness of an offence.  The Criminal Procedure Act 51 of 1977 categorizes offences into different Schedules, which impact upon the accused’s onus of proof when applying for bail.

What Are My Rights?

Section 35(1) of the Constitution of the Republic of South Africa, 1996 deals with the rights of arrested persons.

Arrested persons have the right to be released from custody subject to reasonable conditions, whether or not the interests of justice permit their release or not, and whether the investigating officer has any objections to the release of person on bail.

Furthermore, every arrested person has the right to remain silent, to be informed of this right and of the consequences of waiving it, and the right not to be compelled to make an admission or confession. An arrested person has the right to be brought before a court as soon as reasonably possible.

When May Bail Be Refused?

Bail may be refused, and an accused may be held in detention when it is contrary to the interests of justice, considering prescribed factors, including:

  1. Will the accused person flee and in so doing evade their trial?
  2. If the accused is released on bail, will the accused intimidate witness or tamper/conceal/destroy evidence?
  3. Will the accused pose a danger to public safety and/or commit another offence?
  4. Will the functioning of the criminal justice system be undermined or jeopardized by the accused’s release?
  5. Other factors may include the nature and seriousness of the offence, degree of violence, anger/resentment harboured against other persons.

It is important to note that where an arrested person has a protection order for Domestic Violence or Protection from Harassment issued against them, this must be disclosed.

The granting of bail is based on the discretion of the police official or the public prosecutor or the Magistrate at Court, depending on the seriousness of the offence.  Bail is not guaranteed and is dependent on many variables.

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Kindly note this article is intended for general information purposes only and does not constitute legal advice. Should you need legal advice, please contact one of our legal practitioners.

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