Day 16: How to react if you are arrested

How can you practically empower yourself, or the women and children you know, during this year’s 16 days of Activism? The Mail & Guardian‘s “HOW TO” guide will tackle a different area each day, including suing for maintenance, applying for a social grant and getting an interdict against an abusive partner.

How to react when you are a woman and you have been arrested

It is important to understand that although the constitution provides all criminal suspects rights that police officers have to adhere to from the point of arrest through to the prosecution of suspects, female suspects do not necessarily enjoy special rights outside of the general ones, except of course for those relating to the conduct of arresting police officers and the conditions of female suspects’ detention.

The powers that the police have
A police officer may question you, and ask you to give your full name and address if they:

Suspect you of committing a crime

Suspect you of trying to commit a crime

Think that you will be able to give them information on a crime

Keep in mind that the police can question you without arresting you. But whether or not you have to answer the police’s questions depends on the circumstances surrounding the situation you find yourself in.

Example: If you get stopped at a police road block, and are directed to stop your car by an officer, you have to comply with the officer’s instructions. you have to give the officer your name and address if requested to do so. But you have the right to ask that the officer in question identify himself or provide proof of identity, and he/she refuses, you need not give your name and address.

However if they do identify themselves, the punishment for refusing to give your name and address may vary from a R2 500 fine to three months’ imprisonment. The police officer also has the right to ask you for your proof of identification. Failure to adhere to the aforementioned requests may lead to you being charged.

Searches
A police officer may search your person/property if they suspect that there is enough evidence to warrant a search. In the case of a woman, the body search shall be conducted by a female officer only, and if no female officer is available to do so, the search may be conducted by any woman designated for the purpose by a police official.

The arrest
Depite hoax emails and other false information, the fact is that a woman can be arrested at any time of day or night by both male and female police officials, with or without an arrest warrant depending on the circumstances.

Arrest with a warrant:

A warrant of arrest is a piece of paper that says the police have the power to arrest you and take you to court.

Usually a magistrate signs the warrant. But a police officer of the rank of lieutenant or higher can also sign an arrest warrant.

The police must show you the warrant if you ask to see it. And they must give you a copy of the warrant if you ask for a copy.

Arrest without a warrant

Sometimes the police can arrest you without a warrant. Here are some examples of when this can happen:

* if you escape, or try to escape, after the police arrested you earlier
* if the police catch you while you are committing a crime
* if the police think you committed a serious crime like murder, rape, serious assault, housebreaking, and so on
* if the police think you committed a drug or liquor offence
* if the police find you at night, doing something that makes them think that you are about to commit a crime or have already committed a crime
* if the police think you have not paid a fine which a court ordered you to pay
* if you try to stop the police from doing their duty
* if the police think you have guns or ammunition without a licence
* if you are carrying any other dangerous weapon and you can’t give a good reason to the police
* if the court said you must go to prison for certain periods, for example every weekend, and you do not go
* if the police think you broke the conditions of a suspended sentence

What to do if you are arrested
* Do not struggle with, or swear at, the police – even if the police made a mistake.
* Give the police your name and address – otherwise keep quiet. You must also show your identity book if they ask for it. Do not discuss your case with anyone and do not sign any statements about your case.
* As soon as possible after you arrive at the police station, say that you would like to see a lawyer. If you do not know a lawyer, then ask to see your family. Ask them to get you a lawyer. If you cannot afford a lawyer, ask your family to apply for Legal Aid for you.
* If you are released on bail, ask for your bail receipt and find out when you are due in court. Never be late for, or miss, a court hearing. If you do not arrive in time, a warrant for your arrest may be issued. You may also lose your bail money if you do not go to court on the day of the court hearing.
* Do not talk about your case to anyone except your lawyer – if you have one. Ask for your lawyer to be present if you are questioned or told to attend an identity parade.

After the arrest
You must be brought as soon as possible to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.

If you are detained, you shall, as soon as reasonably possible, be informed of your right to institute bail proceedings. However, if you are not released by reason that no charge is to be brought against you, or bail is not granted to you, you shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

Detention
According to the South African Constitution, everyone who is detained has the right:

To be informed promptly of the reason for being detained;

To choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

To have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

To challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

To conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and