Section 35 Explained: Rights of Arrested, Detained, and Accused Persons in Criminal Proceedings

Section 35 is the criminal justice rights provision. It protects people who are arrested, detained, or facing criminal charges — ensuring fair treatment and a fair trial.

These rights are essential for the rule of law and preventing abuse of state power.

The Text of Section 35 (Key Subsections)

Section 35(1): Rights of Arrested Persons

"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
• of 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...; and
(e) 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."

Section 35(2): Rights of Detained Persons

"Everyone who is detained, including every sentenced prisoner, has the right—

(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result...; and
(d) to challenge the lawfulness of the detention in person before a court...; and
(e) to conditions of detention that are consistent with human dignity..."

Section 35(3): Rights of Accused Persons

"Every accused person has a right to a fair trial, which includes the right—

(a) to be informed of the charge with sufficient detail...
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result...
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) 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;
(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time...; and
(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted...
(n) 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
(o) of appeal to, or review by, a higher court."

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Section 35(1): Rights of Arrested Persons

The Right to Remain Silent (35(1)(a))

"Everyone who is arrested... has the right to remain silent."

What this means:

• You do not have to answer police questions
• You do not have to explain yourself or provide information
• You can choose to say nothing

Why it's important:
Protects you from self-incrimination. The state must prove your guilt; you don't have to help.

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The Right to Be Informed of the Right to Silence (35(1)(b))

"You have the right to be informed promptly of the right to remain silent and the consequences of not remaining silent."

What this means:
Police must tell you that you have the right to remain silent and that anything you say can be used against you.

This is the South African equivalent of the U.S. "Miranda warning."

If police fail to inform you:
Statements made may be inadmissible in court (S v Orrie 2005).

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The Right Not to Be Compelled to Confess (35(1)(c))

"You have the right not to be compelled to make any confession or admission..."

What this means:

• Police cannot force, coerce, or trick you into confessing
• Confessions obtained through violence, threats, or torture are inadmissible

Key case: S v Soci (1998)

• Issue: Confession obtained after prolonged interrogation without food, water, or sleep.
• Holding: Confession inadmissible. Prolonged deprivation can amount to coercion.

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The Right to Be Brought Before Court Within 48 Hours (35(1)(d))

"You have the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after arrest."

What this means:

• Police cannot hold you indefinitely without charging you
• You must appear in court within 48 hours (excluding weekends and public holidays)

Purpose:
Prevents unlawful detention and ensures judicial oversight.

What happens in court?
The magistrate decides whether to:

• Release you (with or without bail)
• Remand you (hold you in custody pending trial)

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Section 35(2): Rights of Detained Persons

The Right to Be Informed of the Reason for Detention (35(2)(a))

"You have the right to be informed promptly of the reason for being detained."

What this means:
You must be told why you're being held.

Example: "You are being detained on suspicion of robbery at XYZ Store on 10 April 2026."

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The Right to a Legal Practitioner (35(2)(b) & (c))

35(2)(b): You have the right to choose and consult with a lawyer, and to be informed of this right promptly.

35(2)(c): If you cannot afford a lawyer and substantial injustice would otherwise result, the state must provide one at state expense.

When does "substantial injustice" arise?

• Serious charges (e.g., murder, rape)
• Complex legal issues
• Vulnerable accused (juveniles, mentally ill)
• Severe potential sentence (long imprisonment)

Key case: S v Vermaas (1995)

• Holding: The right to state-funded legal aid is a constitutional right, not a privilege.

Legal Aid South Africa provides free legal representation to indigent accused persons.

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The Right to Challenge Detention (35(2)(d))

"You have the right to challenge the lawfulness of the detention in person before a court."

How?
Apply for habeas corpus (a court order requiring the state to justify your detention).

If detention is unlawful, the court will order your release.

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The Right to Conditions Consistent with Human Dignity (35(2)(e))

"You have the right to conditions of detention that are consistent with human dignity."

What this includes:

• Adequate food, water, and sanitation
• Medical care
• Protection from violence and abuse
• Humane treatment

This links to Section 10 (dignity) and Section 12 (freedom from torture and cruel treatment).

Key case: Van Biljon v Minister of Correctional Services (1997)

• Holding: Prisoners retain their constitutional rights. Conditions of detention must respect dignity.

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Section 35(3): Rights of Accused Persons (Fair Trial Rights)

The Right to Be Informed of the Charge (35(3)(a))

"You have the right to be informed of the charge with sufficient detail to answer it."

What this means:
The indictment (charge sheet) must be specific:

• What offence are you charged with?
• When and where did it occur?
• What are the material facts?

Vague or general charges violate this right.

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The Right to Adequate Time and Facilities to Prepare (35(3)(b))

"You have the right to have adequate time and facilities to prepare a defence."

What this includes:

• Enough time to consult with your lawyer
• Access to the docket (police file) and state's evidence
• Facilities to prepare (access to legal resources, privacy)

Example: If the trial starts tomorrow and you just received the charge sheet today, you can request a postponement.

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The Right to a Public Trial (35(3)(c))

"You have the right to a public trial before an ordinary court."

Why?
Transparency. Public scrutiny prevents abuse.

Exception: Courts may exclude the public in limited cases (e.g., to protect children, national security).

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The Right to Trial Without Unreasonable Delay (35(3)(d))

"You have the right to have your trial begin and conclude without unreasonable delay."

What is "unreasonable"?
Depends on the circumstances:

• Complexity of the case
• Number of accused
• Availability of witnesses
• Court backlog

Remedy:
If the delay is unreasonable and prejudicial, the court may:

• Permanently stay the prosecution (charges dropped)
• Reduce the sentence to compensate for the delay

Key case: Sanderson v Attorney-General, Eastern Cape (1998)

• Holding: Unreasonable delay violates Section 35(3)(d). Prosecution permanently stayed.

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The Presumption of Innocence (35(3)(h))

"You have the right to be presumed innocent."

What this means:
The state must prove your guilt beyond reasonable doubt. You don't have to prove your innocence.

Burden of proof: On the state (prosecution).

Standard of proof: Beyond reasonable doubt (higher than "balance of probabilities" in civil cases).

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The Right to Remain Silent and Not Testify (35(3)(h))

"You have the right to remain silent and not to testify during the proceedings."

What this means:
You do not have to take the witness stand or give evidence.

The court cannot draw negative inferences from your silence (but see Boesak 2001 — in exceptional cases, silence can be a factor).

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The Right Not to Be Compelled to Give Self-Incriminating Evidence (35(3)(j))

"You have the right not to be compelled to give self-incriminating evidence."

Example: The state cannot force you to testify against yourself or hand over documents that incriminate you.

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The Right Not to Be Convicted Retroactively (35(3)(l))

"You have the right not to be convicted for an act that was not an offence at the time it was committed."

This is the principle of nullum crimen sine lege (no crime without law).

Example: If you did something in 2020 that was legal then, you cannot be prosecuted for it if it becomes illegal in 2026.

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The Right Not to Be Tried Twice (35(3)(m))

"You have the right not to be tried for an offence for which you have previously been acquitted or convicted."

This is the principle of ne bis in idem (double jeopardy).

Example: If you're acquitted of murder, the state cannot charge you again for the same murder.

Exception: Appeal by the state (if permitted by law).

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The Right to the Benefit of the Least Severe Punishment (35(3)(n))

"If the prescribed punishment for the offence has changed between the time you committed it and sentencing, you have the right to the benefit of the least severe punishment."

Example:

• You commit theft in 2020. Maximum sentence: 5 years.
• By 2026 (when you're sentenced), the law changes: Maximum sentence: 3 years.
• You get the benefit of 3 years (the lesser sentence).

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The Right to Appeal (35(3)(o))

"You have the right of appeal to, or review by, a higher court."

What this includes:

• Appeal (challenge the conviction or sentence)
• Review (ask a higher court to check if the trial was fair)

Automatic review: Certain cases (e.g., High Court convictions) are automatically reviewed by the Supreme Court of Appeal.

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Key Cases on Section 35

S v Makwanyane (1995)

Right: Section 35(3) (fair trial)

Holding: The death penalty violates Section 35 (among other rights). Waiting on death row is cruel and inhuman.

S v Orrie (2005)

Right: Section 35(1)(b) (right to be informed of right to silence)

Holding: If police fail to inform the accused of the right to silence, statements may be inadmissible.

Sanderson v Attorney-General (1998)

Right: Section 35(3)(d) (trial without unreasonable delay)

Holding: Unreasonable delay violated the accused's rights. Prosecution permanently stayed.

S v Vermaas (1995)

Right: Section 35(2)(c) & 35(3)(g) (state-funded legal aid)

Holding: Indigent accused facing serious charges have a constitutional right to legal aid at state expense.

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📚 Study Tips: Mastering Section 35

1. Know the Three Categories

• 35(1): Arrested persons
• 35(2): Detained persons
• 35(3): Accused persons

2. Memorize Key Time Limits

• 48 hours: Must be brought before court after arrest
• Promptly: Must be informed of rights (silence, legal practitioner, reason for detention)

3. Understand Presumption of Innocence

State must prove guilt beyond reasonable doubt. The accused does not have to prove innocence.

4. Know the Latin Maxims

• Audi alteram partem: Hear the other side
• Nullum crimen sine lege: No crime without law
• Ne bis in idem: Not twice for the same (double jeopardy)

5. Link to Section 12

Section 12 (freedom and security) overlaps with Section 35:

• Right not to be detained arbitrarily (12(1)(a))
• Right to fair trial (35(3))

6. Cite Key Cases

• Makwanyane (1995) — Death penalty
• Orrie (2005) — Right to silence
• Vermaas (1995) — Legal aid
• Sanderson (1998) — Unreasonable delay

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