South Africa

The detained or accused person, who is arrested for allegedly committing an offence, has the right to remain silent and not to be compelled to make any confession or admission that could be used in evidence against that person. Due to the presumption of innocence, every person is regarded as innocent until properly convicted by a court of law. An accused person does not have to prove that he is innocent. The burden to prove the guilt of the accused rests on the state. The rule is that the onus in criminal cases should always rest on the State. The prosecution must prove every substantive element of the crime as defined in criminal law and which the accused is alleged in the charge sheet/indictment to have perpetrated.

An accused can never be forced to testify; an accused can remain silent even if his answers would not be self-incriminating. A person who exercises his right to silence at his trial should accordingly not be penalised for the exercise of the right as such; no adverse inference should be drawn against his decision not to testify.

Generally it is advisable not to say anything, but if you are of the opinion that you have been arrested because of some misunderstanding and that a statement might prove your innocence you should contact your attorney as soon as possible to make representations on your behalf for your immediate release.

The right to legal representation when arrested and detained in the pre-trial stage of the criminal process, protects the arrested or detained person from state abuses and violations of his or her constitutional rights, most frequently, a denial of such person’s right to silence.

Before making a statement to the police or being part of an identification parade, an arrested or detained person needs to be informed of his/her right to counsel and to his right to legal counsel at state expense if he would suffer substantial injustice without such assistance.

The right to a fair trial includes the right to legal representation.

The right to a public trial before an ordinary court of law and the right to challenge evidence.

The right to bail rests on the values embraced in section 12(1)(a) of the Constitution which provides that everyone “has the right to freedom and security of the person, which includes the right… not to be deprived of freedom arbitrarily or without just cause… and a judicial evaluation of different factors that make up the criterion of interests of justice (section 35 (i)(f)). Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. When bail is granted, an accused who is in custody shall be released from custody upon payment of a sum of money determined for his bail. He must then appear at the place and on the date and at the time appointed for his trial, or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned.

The right to be informed of charges against the accused

includes that the state must inform the accused, in a language that s/he understands, of the reason for their arrest, and about the fact that a verdict could follow on the charge which is a competent verdict on the charge. The accused is entitled to prepare his defence and to have adequate time and facilities to prepare his defence.

Right to fair and public hearing before an impartial court. The accused has the right to equality before the law and to equal protection of the law. Criminal trials must be administered publicly and openly and the accused has a right to be tried in a language the accused understands.

The right to be taken to the prescribed authorities “as soon as possible””– either to a police official (arrest without a warrant) or to the place of custody mentioned in the warrant. Custody in another place or for a longer period than necessary is unlawful and the person in custody will have a claim for damages. If no charge is brought against him, the arrested person ought to be released.

The best thing to do should you be arrested is to call an attorney to provide you with legal assistance. If you do not have our number on hand it is best to stay calm and ask the arresting officer which police station he/she intends taking you to. It is then advisable that you phone a friend, family member or attorney and inform them that you have been arrested and are being held in custody at that particular police station.

Do not attempt to bribe a Police officer.

Once you are in custody the Police have the right to keep you for a maximum amount of 48 hours and thereafter bring you to a court of law for a first court appearance. It is possible to obtain Police bail and / or make a formal after hours bail application immediately after your arrest. This will ensure that you will spend as little time as possible in the Police cells. Your attorney will be able to assist you in this regard.

Fully automatic, military, and unnumbered weapons, explosives and fireworks. Poison and other toxic substances. Cigarettes with a mass of more than 2 kilograms per 1,000. Goods to which a trade description or trademark is applied in contravention of any Act (for example, counterfeit goods)

In the event a couple is unable to conceive and/or give birth to a child due to a medical condition that is permanent and irreversible, they may consider surrogacy.

Surrogacy is where a woman (“surrogate”) voluntary undertakes to be artificially inseminated in order to bear and give birth to a child on behalf of another person or couple, also known as the commissioning parent/s.

Surrogacy is strictly regulated by the Children’s Act, which sets out the procedure and requirements for surrogacy to ensure that it is legal.

In order for surrogacy to be legal, all parties concerned must enter into a written surrogate motherhood agreement that must be confirmed by the High Court within whose area of jurisdiction the commissioning parent/s are domiciled or habitually resident. 

A surrogate has no parental rights and responsibilities over the child and cannot keep the child or take him/her back in the future.

A surrogate may terminate her pregnancy in terms of the Choice of Termination of Pregnancy Act. However, the surrogate must inform and consult the commissioning parent/s of her decision to terminate the pregnancy before the termination is carried out.

Surrogacy is voluntary and a surrogate is not allowed to receive payment or gifts with the intention of coercing her to become a surrogate. The commissioning parent/s may pay for expenses during the pregnancy.

Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.

Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).

It is from these human rights where two of the most concerning infringements of undocumented children’s human rights arise:

The right to a name and nationality from birth (section 28).

The right to a basic education and not to be refused reasonable access to education.

A High Court ruling has declared certain clauses of the of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children’s right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children’s human rights.

In terms of the National Road Traffic Act 93 of 1996 – no person shall on a public road drive a motor vehicle or occupy the driver’s seat of a motor vehicle the engine of which is running, while under the influence of an intoxicating liquor or a drug having a narcotic effect.

Concentration of alcohol in blood: 0,05 grams per 100ml or breath alcohol content of 0,24ml per 1000 ml.

Every person’s right to privacy is protected by our constitution, but it is however not an absolute right and can be limited in certain instances. Generally the Police are only allowed to search if a warrant has been issued granting the Police officer the authority to do so. The Police are however allowed to search without a warrant if he / she is of the opinion that in any specific instance he would be able to obtain a warrant, but because of the circumstances of that particular case, there will not be enough time to obtain one. It is important to note that a woman is only allowed to be searched by a female Police Officer or another woman requested by the Police to do the search.

From 6 May 2009 any person may apply, in writing, to the Director General of Justice and Constitutional Development for the removal of certain entries on his / her criminal record,provided a period of 10 years has lapsed since the conviction, and on condition that he / she has in the interim not been sentenced to imprisonment without the option of a fine.

Once you have been arrested, the Police are allowed to:

Take your fingerprints, palm prints or footprints;

Have you attend an identity parade. You are however entitled to insist on the presence of a legal representative in these instances;

The Police are entitled to ascertain whether your body has any mark, characteristic or distinguishing feature;

Take a photograph of you;

Take you to a doctor to have your blood drawn.

Before you appoint us to provide you with legal assistance in your criminal matter, you are welcome to discuss the costs involved. A deposit will generally be required. The amount of which will depend on the type of instruction given and the amount of time your claim is predicted to take. There are various options available to structure a fee for representing you in a criminal case. We can also provide you with a few handy tips to reduce your legal costs and expenses.