Arrested, detained and accused persons – know your rights

The law recognises that people who have committed acts against the law, should still be treated fairly. It is through these rights that arrested, detained, or accused persons are not treated in a cruel and inhumane way before it has been determined that they are guilty of a particular crime.

The following apply to arrested persons: everyone who is arrested for allegedly committing an offence has the right to remain silent; to be informed promptly of this right and of the consequences of not remaining silent; not to be compelled to make any confession or admission that could be used in evidence against them; to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest nor at the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released and, furthermore, the right to be released from detention if the interests of justice permit, subject to reasonable conditions.

Everyone who is detained, including every sentenced prisoner, has the right to be informed promptly of the reason for being detained; to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of the right promptly; to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; to conditions of detention 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 and to communicate with, and be visited by, that person’s spouse or partner, next of kin, chosen religious counsellor as well as a chosen medical practitioner.

Every accused person has a right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it; to have adequate time and facilities to prepare a defence; to a public trial before an ordinary court; to have their trial begin and conclude without unreasonable delay; to be present when being tried; to choose and be represented by a legal practitioner and to be informed of this right promptly; to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this promptly; to be presumed innocent, to remain silent, and not to testify during the proceedings; to adduce and challenge evidence; not to be compelled to give self-incriminating evidence; to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; not to be convicted for an act or omission that was not an offence under either national or international law at the time that it was committed or omitted; not to be tried for an offence in respect of an act or omission previously acquitted or convicted for; to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and of appeal to, or review by, a higher court.

Furthermore, whenever the section requires that information be given to someone, it must be in the language that that person understands, and evidence obtained in any manner violating the Bill of Rights must be excluded if its admission would render the trial unfair or otherwise be detrimental to the administration of justice.

This section in the constitution serves to protect the rights of those individuals who have find themselves on the wrong side of the law, in that they are not mistreated, nor are they robbed of their rights.

These rights are important in ensuring equality between the state and individuals.

Article compiled by Zethu Dlamini, candidate attorney.

Malherbe Rigg and Ranwell Attorneys will each week introduce readers of the Advertiser to Your Rights, published under the Bill of Rights within the South African Constitution. Those with further information regarding their rights may communicate a query to jeff@mrr.co.za.