Crisis Guide
Arrested Without Being Told Why — Your Rights
Police must tell you why you are being arrested — right away, in a language you understand. If they refused, your Section 35 rights were violated. Here is exactly what to say and do.
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South African Law
2 related guides
What the Law Says
Your Legal Foundation
Constitution of South Africa
Section 35(1)
“Everyone who is arrested for allegedly committing an offence has the right — (a) to remain silent; (b) to be informed promptly of the right to remain silent, and the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person; (d) to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest.”
Criminal Procedure Act 51 of 1977
Section 39(2)
“The arrestor shall, at the time of the arrest or immediately thereafter, inform the person arrested of the cause of the arrest.”
Common Questions
Frequently Asked Questions
Can the police force me to unlock my phone?
Generally, no. They can search your phone in certain circumstances (incident to lawful arrest if they have reason to believe it contains evidence), but compelling you to give your password or biometric to unlock it is more complex. The right to remain silent and the privilege against self-incrimination likely cover compelled disclosure of passwords. This is still developing in South African case law — silence is safest.
What if the police ignore my request for a lawyer?
Document it and inform your lawyer when you eventually speak to one. Evidence obtained in violation of your constitutional rights can be excluded from court proceedings under Section 35(5) of the Constitution. Your lawyer can apply for this exclusion.
Can the police arrest me without a warrant?
Yes, in certain circumstances. Section 40 of the Criminal Procedure Act allows warrantless arrest where a police officer reasonably suspects you have committed a Schedule 1 offence (which includes serious crimes like murder, robbery, and assault with grievous bodily harm). For minor matters, a warrant is usually required. An unlawful warrantless arrest does not automatically make you guilty — challenge it through your lawyer.
How long can the police hold me before bringing me to court?
Section 35(1)(d) of the Constitution requires you to be brought before a court as soon as reasonably possible, and not later than 48 hours after arrest — or the first court day after the 48 hours if it expires outside court hours. Holding you beyond 48 hours without a court appearance is unlawful. Your lawyer can apply for your immediate release.
What if I was not read my rights at the time of arrest?
The police are required under Section 35(1)(b) to inform you of your right to silence and its consequences at the time of arrest. Failure to do so does not automatically make your arrest unlawful, but it may allow your lawyer to apply for the exclusion of any evidence or statements obtained as a result of that failure under Section 35(5) of the Constitution.
Practice Exactly What to Say
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