Chapter 2
Bill of Rights (ss 7-39)

35 Arrested, detained and accused persons

(1) Everyone who is arrested for allegedly committing an offence has the right-

(a) to remain silent;

(b) to be informed promptly-
(i) of the right to remain silent; and
(ii) 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-
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the
48 hours expire outside ordinary court hours or on a day which is
not an ordinary court day;

(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; and

(f) to be released from detention if the interests of justice permit, subject to
reasonable conditions.

(2) 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 to be
informed of this right promptly;

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

(e) 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

(f) to communicate with, and be visited by, that person's-
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right

(a) to be informed of the charge with sufficient detail to answer it;

(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, and to be
informed of this right promptly;

(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 it was committed or
omitted;

(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.

(4) Whenever this section requires information to be given to a person, that
information must be given in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice.

CHAPTER 4
LEGAL PROCEEDINGS

Legal representation

10. (1) (a) Subject to subsections (2) and (3), the court before which a person is 5 brought for trial for an offence contemplated in section 5(1), (3) or (4) may not proceed with the trial unless

(i) the accused person is represented by a legal practitioner who is qualified to appear before the court ; and
(ii) the court is satisfied that a period of not less than 14 days has elapsed since 10 instructions for the representation of the accused at the trial were first given to the legal practitioner who is representing the accused.

(b) If the court adjourns the trial for the purposes of enabling the requirements of this subsection to be complied with, then, notwithstanding anything to the contrary in any other law, the court may remand the accused person in custody for the period of the 15 adjournment.

(2) Every person contemplated in subsection (1) has the right to legal representation of his or her own choice at his or her own expense, or to be assigned a legal practitioner at state expense when he or she is to appear or to be tried by a court.

(3) Where the accused person is a protected prisoner of war and in the absence of a 20 legal practitioner accepted by the accused as representing him or her, a legal practitioner instructed by or on behalf of the protecting power must, without prejudice to the requirements of subsection (1)(a)(ii), be regarded for the purposes of that subsection as representing the accused person.

(4) Where the court adjourns a trial in terms of subsection (1) by reason that the 25 accused person is not represented by a legal practitioner, the court must direct that a legal practitioner be assigned to watch over the interests of the accused person at any further proceedings, in the absence of a legal practitioner accepted by the accused as representing him or her or instructed in accordance with subsection (3), and a legal practitioner assigned in terms of this subsection must, without prejudice to the 30 requirements of subsection (1)(a)(ii), be regarded for the purposes of that subsection as representing the accused person.
(5) The Legal Aid Act, 1969 (Act No. 22 of 1969), subject to the changes required by the context, applies in relation to the manner in which a legal practitioner is to be assigned to an accused person in terms of this section and in relation to the remuneration 35 to be paid to such legal practitioner on the completion of his or her duties .