Criminal Case

Being arrested can be frightening and confusing. Whether you believe the arrest is justified or not, what you do immediately afterwards can have a significant impact on how your case develops.

South Africa’s Constitution gives arrested persons important rights, including the right to remain silent, to be informed promptly of that right and of the consequences of not remaining silent, and not to be compelled to make a confession or admission that could be used against them. An arrested person also has the right to consult a legal practitioner.

Knowing your rights is important. So is knowing what not to do.

1. Trying to Explain Everything Immediately

One of the most common mistakes after an arrest is believing that you can resolve the situation by immediately explaining your side of the story.

You may be innocent. You may have a perfectly reasonable explanation. But an arrest is generally not the best time to provide a detailed account without first obtaining legal advice.

The Constitution expressly protects your right to remain silent.

Anything you say may become relevant to the investigation or subsequent criminal proceedings. An apparently harmless explanation given while you are stressed, frightened or confused may later be interpreted differently from what you intended.

Remaining silent does not mean being disrespectful or refusing to cooperate with lawful procedures. You can provide information that you are legally required to provide while making it clear that you would like to consult your attorney before answering questions about the allegations.

2. Resisting the Arrest

You may believe that the police have made a mistake or that the arrest is unlawful. Physically resisting the arrest is generally not the appropriate way to challenge it.

Resistance can escalate the situation and may potentially create additional legal problems.

If you believe that the police acted unlawfully, make a mental note of what occurred. Where possible, remember the names of the officers involved, where the arrest took place, what was said and whether there were witnesses.

Your attorney can later assess the circumstances of the arrest and advise you on the appropriate legal remedies.

The Criminal Procedure Act regulates arrest procedures in South Africa and sets out circumstances in which arrests may be made with or without a warrant.

The legality of an arrest should therefore be considered carefully on the facts rather than argued physically at the scene.

3. Signing Documents You Do Not Understand

After an arrest, you may be asked to sign documents or make statements.

Do not sign something simply because you are told that it is “just a form” or because you believe signing it will get you released sooner.

Read documents carefully and ask what they mean. If a document relates to the allegations against you or contains a statement attributed to you, obtaining legal advice before signing can be extremely important.

This is particularly important where a document could contain an admission, confession or version of events.

The Constitution protects an arrested person against being compelled to make a confession or admission that could be used in evidence against them.

If you are uncertain about what you are being asked to sign, tell the officer that you would first like to consult your legal representative.

4. Discussing the Case With Everyone Around You

After being arrested, it is natural to want to explain yourself to friends, relatives or other people around you.

Be careful.

Conversations about the allegations may later become relevant to your case. The same applies to WhatsApp messages, social-media posts, emails and other written communications.

Posting your version of events publicly can be particularly risky. What seems like an attempt to defend your reputation could contradict evidence that emerges later or unnecessarily reveal aspects of your defence.

Discuss the facts of your case fully with your attorney. Your legal representative can advise you on what information should be disclosed, when it should be disclosed and how your defence should be approached.

This becomes particularly important when there are co-accused persons, witnesses or ongoing police investigations.

5. Waiting Too Long to Contact an Attorney

The period immediately following an arrest can be important.

Your attorney can explain the allegations against you, advise you regarding your rights, assist with the bail process where appropriate and begin preparing for what happens next.

Section 35 of the Constitution specifically recognises the rights of detained persons to choose and consult with a legal practitioner and to be informed of this right promptly.

Criminal proceedings involve strict procedures, evidentiary issues and important strategic decisions. Trying to navigate the process without understanding your legal position can unnecessarily place you at a disadvantage.

If You Have Been Arrested, Get Legal Advice Early

An arrest does not mean that you have been convicted of an offence. You are entitled to due process and the protections provided by South African law.

The decisions made during the first hours and days of a criminal matter can, however, be important.

If you or a family member has been arrested, obtaining legal advice as early as possible can help you understand your rights, your options and the next steps in the criminal process.

This article provides general information about South African law and does not constitute legal advice. Every criminal matter depends on its particular circumstances.