Arrested in South Africa: Your Rights, Your Job, and Your Privacy

By Jolané van der Walt-Nieuwoudt. 

Biography 

Jolane van der Walt is an admitted attorney of the High Court of South Africa, with more than a decade of experience in civil, family, criminal and labour law matters. She holds both an LLB and a Master of Laws (LLM) from Stellenbosch University, where she also lectured for three years. She has further enhanced her legal expertise by obtaining certificates in Labour Law from the University of Cape Town and Medical Law from the Legal Education and Development (L.E.A.D) division of the Law Society. Jolane has been with Legal Hero for seven years and is our Head of Legal (Legal Insurance Policies & Value Added Services).

South Africans are often unaware of how an arrest impacts their rights, salary, and future employment, especially when the arrest becomes known to the employer. This article explores the legal landscape around arrest, including the 48-hour rule, labour rights, criminal records, and the right to privacy under the POPI Act.

What is the 48-hour rule?

According to Section 35 of the Constitution of South Africa, read together with the Criminal Procedure Act (51 of 1977), an arrested person must be brought before a court within 48 hours. This period excludes weekends and public holidays. 

·       Weekday Arrests: If you are arrested at 17:00 on a Wednesday, the 48-hour period would technically end at 17:00 on Friday. However, since courts are not open at 17:00, you would need to be brought before a court earlier on Friday. If this is not possible, you might have to wait until the next court day, which is Monday, to appear before a magistrate. 

·       Weekend Arrests: If you are arrested late on a Friday, the police have until Monday to bring you before a court. This timing means you would likely spend the weekend in the holding cells, because courts do not operate over the weekend. Similarly, if you get arrested on a Saturday or Sunday, the 48-hour period extends to the next court day, which would be Tuesday. 

·       Public Holidays and After Hours: If the 48-hour period expires outside of ordinary court hours or on a non-court day (such as a public holiday), the law requires that you be brought before a court by the end of the first following court day. For example, if you get arrested on a public holiday or if the 48 hours expire when the court is closed, you must be brought before a court on the next day that the court is in session.

If the 48-hour window falls on a weekend or public holiday, the clock is effectively “paused” and resumes on the next working day.

Police bail and release on warning

Once arrested, the accused will be booked at the police station and held in a holding cell. The investigating officer must open a case docket, which will then be sent to the public prosecutor. 

Based on the nature of the charge, the accused may be:

§  (i) Released on police bail (for Schedule 1 offences) or (ii) released on warning 

(minor offences, inter alia, include theft of goods for less than R2500; negligent driving, certain assault cases, crimen iniura, and driving under the influence), or

§  (iii) Held until the accused first appearance in court (especially for Schedule 5 or 6 offences).

Arrest and your job: the labour law side

An arrest can disrupt your employment, especially if you are detained over a weekend or longer. 

A. No work, no pay

If you miss work due to being in police custody, the rule of “no work, no pay” applies. Your employer is not obligated to pay you for the days you are absent, unless:

• You take annual leave (if approved), or
• Your contract or company policy allows for it.

Even if you are eventually found not guilty, those absent days are unpaid unless reinstated at the employer’s discretion.

B. Can you be dismissed for being arrested?

You cannot be automatically dismissed just for being arrested. However:

• If the absence is prolonged, and it disrupts business, your employer may initiate incapacity proceedings.
• If the charges relate to your job duties (e.g., theft for a cashier, assault in a security role), the employer may consider disciplinary action or suspension, even before conviction, depending on the case and evidence.
• A fair procedure must be followed in all cases, as required by the Labour Relations Act (Schedule 8).

C. Criminal records and job requirements

An arrest is not the same as a criminal record. You only have a record after a conviction. However:

• Some employers, particularly in security, finance or government — require a clean record.
• If the job offer or employment is conditional on a clear criminal record, you may be at risk after conviction.

If dismissed after a conviction, the reason would generally be misconduct or incompatibility, especially if trust or safety is compromised.

4. The POPI Act: your privacy still matters

The Protection of Personal Information Act (POPIA) protects employees from unnecessary or unlawful processing of personal information, including arrest records and criminal history.

A. What does this mean for arrests?

• Your employer may not disclose your arrest to others without your consent or a valid legal reason.
• They may only collect or process criminal information if it is justified, necessary, and relevant to the work you do (example: security clearance, legal compliance).
• Even in disciplinary cases, employers must handle such personal data confidentially and securely.

In short: your arrest and pending charges are private, and your employer must respect your right to dignity and data protection.

5. Advice for employees and employers

For Employees:

• Notify your employer if you are detained if and when necessary (do not just disappear).
• Call Legal Hero and ask for legal help, both criminal and employment related. 
• Do not resign without advice — you are entitled to a fair hearing.

For Employers:

• Do not dismiss purely based on arrest: assess the impact, apply fair procedure.
• Ensure compliance with the POPI Act when handling arrest or criminal data.
• Consider paid or unpaid suspension depending on the facts and company policy.

Conclusion

An arrest can be a deeply unsettling experience, particularly when your employment is at stake. South African law provides critical safeguards, starting with the 48-hour rule in criminal procedure to privacy and labour protections in the workplace. These laws are designed not only to ensure fair treatment but also to promote responsible conduct from both employers and employees.

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