09/10/2026
WHAT THE LAW SAYS
EPISODE 1: ARREST, DETENTION & BAIL
Every Thursday. Know it before they test it.
"They arrested him, so he must be guilty."
That's the comment section talking. The people doing the arresting are counting on you to believe it too.
Arrest is not guilt.
Section 35 of the Constitution protects people who are arrested, detained and accused. An accused person is presumed innocent and has the right to a fair trial (s35(3)(h)). An arrest is an accusation being tested. It is not a finding of anything.
You can stay silent. They'll hope you don't.
An arrested person has the right to remain silent, and must be told of that right and of the consequences of speaking (s35(1)(a)–(b)). You cannot be compelled to make a confession or admission that can be used against you (s35(1)(c)). Statements given to a room full of officers, without anyone explaining any of this, are how a lot of cases get built.
They can't arrest whoever they like.
Section 12 protects everyone from being deprived of freedom arbitrarily or without just cause. The Criminal Procedure Act sets out when police may arrest, including the limited grounds for arrest without a warrant (s40). Suspicion has to rest on something. "We wanted to talk to you" is not a ground.
48 hours. Not "whenever we get to it."
An arrested person must be brought before a court as soon as reasonably possible, and no later than 48 hours after arrest. If those 48 hours expire outside ordinary court hours or on a non-court day, the deadline extends to the end of the next court day (s35(1)(d)). Detention beyond that without a court's say-so is unlawful.
Your rights don't stop at the cell door.
A detained person must be told promptly why they're being held. They can choose a lawyer and consult them, and if substantial injustice would otherwise result, the state must provide one at its own expense (s35(2)). Evidence obtained in violation of the Bill of Rights can be excluded if using it would make the trial unfair (s35(5)).
Does any of this actually get ignored?
The state's own figures say yes. Parliament was told that there were 48,569 pending cases of unlawful arrest and detention nationally, within SAPS facing R56.7 billion in pending civil claims overall. Separately, SAPS paid R2.8 billion in claims for unlawful arrest, detention and assault since April 2022. Those are claims and payouts, not every arrest, but they are the state's own numbers on what happens when the rules are broken. The people who pay for it are ordinary citizens, twice: once when they're arrested, and again as taxpayers when the bill arrives. (The Citizen) (The Citizen)
Bail is not an acquittal. Denial is not a conviction.
Where the interests of justice permit, an accused person may be released while the case proceeds, on conditions set by the court (s35(1)(f); s60 of the CPA). When someone walks out on bail, the case continues. When bail is refused, that says nothing about guilt. It says a court decided release wasn't appropriate at that stage.
The stages:
Arrest. Charge. First appearance. Bail. Trial. Verdict. Sentence.
Skip a stage and you're not applying the law. You're applying a feeling.
The rights are on paper. The paper only works for people who know it exists.
Next Thursday: Can the police search you, your car or your home without a warrant?
WHAT THE LAW SAYS.
Mind the law.
