Section 35: Rights of Arrested, Detained & Accused Persons

35(1): Rights on Arrest

Everyone who is arrested has the right to:

• Remain silent
• Be informed promptly of right to remain silent
• Not be compelled to make confession/admission
• Be brought before court ASAP (within 48 hours)
• Choose and consult with legal practitioner
• Be informed of these rights promptly

35(2): Rights of Detained Persons

Everyone detained has the right to:

• Be informed promptly of reason for detention
• Choose and consult with legal practitioner
• Be brought before court ASAP (within 48 hours)
• Challenge lawfulness of detention
• Conditions of detention consistent with human dignity

35(3): Rights at Trial

Every accused person has the right to:

• Fair trial
• Be informed of the charge
• Adequate time and facilities to prepare defence
• Public trial before ordinary court
• Be present when being tried
• Choose and be represented by legal practitioner
• Be presumed innocent
• Remain silent
• Not be compelled to testify
• Adduce and challenge evidence
• Not be convicted if act/omission wasn't an offence at the time
• Benefit from lesser sentence if law changes
• Appeal or review
• Interpreter at state expense if needed

Key Cases

• S v Dlamini; S v Dladla (1999) — Right to legal representation
• S v Makwanyane (1995) — Fair trial and death penalty
• Sanderson v Attorney-General (1998) — Presumption of innocence

Exam Tips

Miranda-style rights on arrest: Silence, lawyer, appear in court within 48 hours

Fair trial = cluster of rights: Legal rep, presumption of innocence, challenge evidence, appeal

Different from Section 12: Section 12 = freedom and security; Section 35 = procedural rights once arrested

Tags: #section35 #arrest #fairtrial #presumptionofinnocence #criminallaw