Section 35 of the Constitution of the Republic of South Africa, 1996 is the cornerstone of criminal justice rights in South Africa. It protects every person who is arrested, detained, or accused of a crime. Understanding these rights could be the most important legal knowledge you ever acquire — because these protections exist the moment you are placed under arrest.
What is Section 35 of the South African Constitution?
Section 35 falls under the Bill of Rights and covers three distinct groups of persons:
- Section 35(1): Rights of arrested persons
- Section 35(2): Rights of detained persons
- Section 35(3): Rights of accused persons in criminal proceedings
Together, these provisions create a comprehensive framework that limits police powers and protects individuals from the potentially overwhelming power of the state in criminal matters.
Section 35(1): Rights of Arrested Persons
The moment you are arrested, you have the following rights:
- Right to remain silent: You cannot be compelled to make any statement. Anything you say voluntarily can be used as evidence.
- Right to be informed of the right to remain silent and the consequences of not remaining silent.
- Right not to be compelled to make a confession applicable to the accused: Any confession obtained through duress, coercion, or undue influence is inadmissible.
- Right to be brought before a court as soon as reasonably possible — and no later than 48 hours after arrest, or on the first court day thereafter.
- Right to be released or have a bail determination made at the first court appearance.
- Right to choose and consult with a legal practitioner, and if you cannot afford one, to have one assigned to you by the state.
Section 35(2): Rights of Detained Persons
If you are detained (whether awaiting trial or serving a sentence), you have additional rights:
- To be informed promptly of the reason for detention
- To choose and consult with a legal practitioner and to be informed of this right promptly
- To have a legal practitioner assigned by the state if you cannot afford one
- To challenge the lawfulness of detention in person before a court and to be released if the detention is unlawful
- To conditions of detention that are consistent with human dignity, including at least exercise and adequate accommodation, nutrition, reading material, and medical treatment
- To communicate with family members and be visited by them
Section 35(3): Rights of Accused Persons
Every accused person in a criminal trial has the right to a fair trial, which includes:
- Being informed of the charge with sufficient detail to answer it
- Adequate time and facilities to prepare a defence
- A public trial before an ordinary court
- To be present during the trial
- To choose and consult with a legal representative (and to be provided one by the state if necessary)
- To a legal practitioner assigned by the state if substantial injustice would otherwise result
- To be presumed innocent and not to be required to prove innocence
- To adduce and challenge evidence
- Not to be compelled to give self-incriminating evidence
- To be tried in a language they understand or with an interpreter
- Not to be convicted for an act that was not an offence when committed
- Not to be tried twice for the same offence (double jeopardy protection)
- To the benefit of the least severe prescribed punishment where there has been a change in law
If you or a loved one is facing criminal charges, connecting with a qualified criminal lawyer in South Africa ensures all Section 35 rights are fully exercised and protected throughout the proceedings.
What Happens When Section 35 Rights Are Violated?
Section 35(5) of the Constitution provides a powerful remedy: evidence obtained in a manner that violates the Bill of Rights must be excluded from the proceedings if admitting it would render the trial unfair or otherwise be detrimental to the administration of justice.
This means:
- A confession extracted through torture is inadmissible
- Evidence obtained through an illegal search may be excluded
- Statements made before the accused was informed of their right to silence may be challenged
Skilled criminal defence lawyers in South Africa routinely challenge unlawfully obtained evidence and can significantly weaken the state’s case through these constitutional challenges.
Frequently Asked Questions
What is the right to remain silent in South Africa?
Section 35(1)(a) guarantees every arrested person the right to remain silent. You do not have to answer any questions from the police about the alleged offence. You should clearly but calmly state: “I am exercising my right to remain silent and wish to consult with a lawyer.”
Can police interrogate me without a lawyer present in South Africa?
Police can question you, but you are not obligated to answer without legal representation. If you request a lawyer, questioning should cease until your lawyer arrives. Any statements made after invoking your right to silence can be challenged in court.
What is the 48-hour rule in South African criminal law?
An arrested person must be brought before a court within 48 hours of arrest (or on the first court day if 48 hours expires outside court hours). Detention beyond this period without a court order is unconstitutional.
Does a foreigner have the same Section 35 rights in South Africa?
Yes. Section 35 rights apply to “every person” — not only citizens or residents. Foreign nationals arrested in South Africa have the same constitutional rights, including the right to contact their embassy or consulate.
What is double jeopardy in South African law?
Double jeopardy means you cannot be tried twice for the same offence after you have been finally acquitted or convicted. This protection is guaranteed by Section 35(3)(m) of the Constitution.
Know Your Rights — Get Legal Representation Immediately
Section 35 rights are powerful, but they mean little without a skilled advocate who knows how to invoke and enforce them in court. Whether you’re facing arrest, detention, or criminal charges, connect immediately with an experienced criminal lawyer in Pretoria or across South Africa through our directory to ensure your constitutional rights are fully protected.