Guidance

Information pack for British nationals arrested or detained in South Africa

Updated 28 July 2023

Chapter 1: Key Points

Overview

If you are a British national, and are arrested or detained in another country, consular staff will do what they can to help you. However, we cannot interfere with the local justice system, get you out of jail, or pay for services such as a lawyer. Information about who we can help, including the circumstances in which we can assist dual nationals, is available at: Support for British nationals abroad. You can also request a paper copy from consular staff.

This information pack aims to give you, and your family and friends, information about the local system in South Africa and who can help. Consular staff can provide a printed copy to those in prison or in custody. We welcome feedback to help us improve the information we can provide to others.

Contacting us

If you are arrested or detained in another country:

• the authorities should ask whether you want them to contact the British embassy, high commission or consulate (and must do so if you want them to)
• if they do not ask, you can make the request yourself. You should do this if you are charged with a serious offence or need any kind of assistance
• friends or family can also contact the local British embassy, high commission or consulate or the Foreign, Commonwealth & Development Office (FCDO) in London on +44 (0)20 7008 5000

In some countries, the authorities might notify the British embassy, high commission or consulate even if you do not want anyone to know that you have been arrested. This is because there may be an agreement in place with the British government which requires a mandatory notification to be made.

Who we are

Consular staff work in the FCDO in the UK, and in British embassies, high commissions and consulates overseas.

You can contact us:

• over the phone, by calling +27 (0) 12 421 7500
• online, using our website

You can also write to us at:

British High Commission Pretoria
255 Hill Street
Arcadia
Pretoria
Gauteng
0083

or

The British Consulate General Cape Town
15th Floor
Norton Rose House
8 Riebeek Street
Cape Town
8001

Please note that access to the consular section is by appointment only. If you need consular assistance, you should telephone us before visiting our offices. You can contact us over the phone 24/7 by calling +27 (0)12 421 7500.

You can also contact us for help or advice from anywhere in the world by calling the FCDO on +44 (0) 20 7008 5000.

What we can do

The FCDO can offer you impartial and non-judgemental help. When we are notified of your arrest or detention, we will aim to contact you as soon as possible, so that we can assess how we can help you. We then aim to provide assistance according to your individual circumstances and local conditions. Our priority is to provide assistance to those British nationals overseas that need our help the most.

In South Africa, notification by the authorities to the High Commission can take several days or weeks after your arrest. It is therefore important that you try to inform us as soon as possible after your arrest. It is your right to do so. You may also be able to make a phone call to the British High Commission, your lawyer or family.

Once we are notified, we aim to contact you as soon as possible.

We can also:

• provide a list of local English-speaking lawyers
• provide general information about the country, detention conditions, and the local legal system (including if legal aid is available)
• provide general information about the local prison or remand system, including visiting arrangements, mail and censorship, privileges, and welfare services
• keep in regular contact with you, either by visiting or by telephone/letter. The frequency of contact will depend on local conditions and your personal circumstances
• tell the police or prison doctor, with your permission, about any medical or dental problems including medication
• put you, or your family, in touch with a prisoners’ welfare charity called Prisoners Abroad
• in some circumstances we may be able to help take up complaints with the police or prison authorities about ill treatment, personal safety, or discrimination, if you are not treated in line with internationally recognised standards
• help to transfer money to you from your friends or family. In places where phone or postal services are not available we can also try to pass on messages and deliver letters to the prison (but generally we cannot arrange for delivery directly to you)

What we cannot do is:

• get you out of prison or detention
• help you get special treatment because you are British
• offer legal advice, start legal proceedings or investigate a crime
• pay for any costs because you have been arrested
• forward you packages sent by friends or family
• prevent authorities from deporting you after release

First Steps

Informing family members

If you want us to, we can tell your family or friends that you have been detained and provide them with information about how to contact you. With your consent, we can also keep them updated on your wellbeing.

If you are not sure about informing your family, we can help you consider what the impact of not doing so might be. For example, it may cause them distress if they do not know where you are, or cannot contact you. It can also be a disadvantage to you if you need someone to send you money or act on your behalf while you are detained.

Informing the UK police

If you are accused of certain serious offences, such as sexual assault or drugs trafficking, we are obliged to share information about your arrest with UK police. Information about this may appear if a Criminal Records Bureau check were carried out by a prospective employer. There may be other circumstances when information about you may need to be shared with authorities in South Africa.

Legal assistance: lawyers

We cannot give legal advice, start legal proceedings, or investigate a crime. However, we can provide information about the local legal system, including whether a legal aid scheme is available. We can give you a list of local interpreters and a list of local English-speaking lawyers. See also information on Legal Aid in South Africa.

You should consider the benefits of local legal representation and discuss all the costs beforehand with the legal representative. We cannot pay your legal or interpretation costs in any circumstance.

Consular assistance: fair treatment

We cannot get you out of prison or detention, or get you special treatment because you are British. If you are not treated in line with internationally accepted standards, we will consider whether to approach the local authorities. This may include if your trial does not follow internationally recognised standards or is unreasonably delayed compared to local cases.

Other organisations that can provide assistance

We can put you, or your family, in touch with Prisoners Abroad, a UK charity which supports British citizens detained overseas and their families.

Chapter 2: Detention conditions in South Africa

Visits: friends and family

Who can visit and how to arrange visits

Family and friends should consult FCDO travel advice before they travel to South Africa for the latest information on safety and security, entry requirements and travel warnings.

They should check with the prison to confirm that you are able to receive visitors before they travel. They may need to make an appointment to see you. If you are sick or have transgressed prison regulations, you may not be able to receive visitors.

You are allowed to receive visitors on specific days of the week depending on the prison in which you are being held. You may be allowed extra visits if there are special or compassionate reasons (for example, distance, minor children etc.). Visitors need to bring a South Africa ID or foreign passport for identification purposes.

What to expect when you visit

Visitors enter into the prison and have in the past expressed how daunting the experience of getting through the security checks and waiting can be. Visitors must identify themselves when they arrive at the prison by showing an identification document containing a photograph (e.g. passport / or South African ID book).

Visitors should expect to undergo a body search before entering the prison, and possibly again in the designated visiting area. Visitors receive an ink stamp on their hand or arm before entry or they may receive a slip of paper.

Visitors will be briefed about the rules of the visit, and can purchase items from the tuck shop in the visiting area. All visits are supervised and conversations may not be private.

The South African Department of Correctional Services [DCS] publish a detailed, step-by-step guide to the visitation process in South African prisons.

What you can take on your visit

Visitors can bring prison comforts. All bags and parcels will be searched before entry and authorities have the right to withhold items they deem to be unacceptable. You will find a full list of permissible items on the DCS website.

Visits: consular staff

You can write to us at any time on matters that concern you but if it is urgent it may be quicker to ask prison authorities to contact us on your behalf.

We will agree a schedule of visits based on your individual circumstances. If necessary you can contact us by telephone. You can also request a visit by speaking with the prison social worker or warden.

If you have any health, welfare or mistreatment concerns please reach out to us as soon as possible and we will contact you. If we can visit, we will. We will notify prison officials of our visit but you might not get notification ahead of the time. We may speak to you over the phone depending on the prison in which you are being held.

You can write to us at any time on matters of concern but if it is urgent it may be quicker to ask prison authorities to contact us on your behalf

Emergency trips outside of prison

It is not possible to make a trip outside of prison if an urgent situation arises (eg. funerals and critical illness of a prisoner’s next-of-kin).

Police custody and initial arrival at prison

Arriving at the police station: your basic rights

You will be notified of the cause of arrest at the time that the arrest is taking place, or immediately after. If the arrest was effected by virtue of a warrant you should be handed a copy of the document.

If arrested you must be informed:

• that you have been arrested
• the reason for the arrest (this will must either be explained at the time of arrest or immediately after)
• that you are entitled to communicate and be visited by your spouse or partner, next of kin, a religious counsellor of your choice, a medical practitioner, lawyer and the High Commission (please note that the South African police may use the terms “high commission” or “embassy” interchangeably)

You will be searched, both upon arrest and upon arrival at the police station. All personal items will be seized and recorded in an official register. Any personal items used as evidence will be recorded on a different register, and you may not receive them back.

A person of the same gender as you should conduct the search. The police have the right to take your fingerprints; photograph you, draw blood and collect your DNA.

At the police station all arrested persons are taken to the Client Service Centre where they are processed in the police cells. All details of the arrest are entered into an Occurrence Book.

Everything that happens at the police station, which includes complaints from detainees are recorded in the Occurrence Book. All this information may be requested by an interested party via the Promotion of Access to Information Act No 2 of 2000. Visits to police cells are possible, but limited. Speak to the investigating officer, or the Officer-in-Charge of the Client Service Centre, if you need to see someone.

In terms of Section 35(2) of the Constitution, the arrested/ detained person has the right to:

• be informed promptly of the reason for being detained
• remain silent
• be informed of their rights by the police and when informed, it must be in a language that the person can understand
• not be compelled to make any confession or admission that could be used in evidence against them
• choose to, and consult with an attorney of his/ her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights
• be brought before a court as soon as reasonably possible
• 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
• be released from detention if the interests of justice permit, subject to reasonable conditions
• be contained in conditions 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
• communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner
• be presumed innocent until proven guilty

Appearing at court

The police official in charge of the Client Service Centre should ensure that you are either charged or released within 48 hours.

There is no right to challenge the decision to charge. You will only have civil remedies to institute a civil claim for unlawful arrest and detention. The police will inform you of the charges and the charge will be reflected in the Occurrence Book as well as the cell register at the station.

After 48 hours you will be taken to court. The docket (the file containing information about the investigation and charges) is taken to the State Prosecutor, who falls under the National Prosecuting Authority (NPA). The State Prosecutor will review the evidence and decide whether to prosecute you.

The prosecutor must consider whether to:

• request the police to investigate the case further
• institute a prosecution
• enter into a plea or sentence agreement
• decline to prosecute and to opt for pre-trial diversion or other non-criminal resolution
• decline to prosecute without taking any other action

In court, the charges will be read to you and recorded on an appearance sheet. The court will also consider a request for bail – you should talk to your lawyer about this. If bail is not granted at your first appearance, you will be transferred to a correctional facility.

Read more information about the South African judicial system in Chapter 3.

Initial arrival at the prison

On arrival at prison you will registered and allocated to a cell. You will hand over all your possessions, including clothes and money to prison authorities (these will be returned to you on release, providing they are not used as evidence) and be issued with a prison uniform. You will also be able to open a prison credit account for purchases at the prison shop.

You do not have the right to make a telephone call upon arrival at the prison. You are allowed to make telephone calls at your expense on specific days of the week depending on the prison which you being are held.

You will be advised of prison regulations and procedures and the penalties for transgressing these. At this stage you may receive a medical examination from the prison medical staff, but this is not always the case. You will then be taken to your cell.

You should inform prison authorities of any pre-existing conditions and or chronic medication and request a medical assessment if needed.

Prison: conditions and daily life

There are various state prisons throughout South Africa, mostly situated outside of small towns and cities. Most prisons are run by DCS.

Prisoners are confined to their cells during different parts of the day depending on their security group. Inmates are usually confined to their respective prison wings and are not permitted out at any time, unless under prior arrangement e.g. for work or cleaning requirements to have access to different mediums on the prison grounds.

If you experience serious harassment, ill treatment, discrimination, threats or violence you should report this to the head of the prison and to the High Commission as soon as possible. It is our responsibility to take up allegations of mistreatment against a British national. However, we will only raise concerns with the prison administration if you request that we do so.

You can also lodge a complaint with the Tshegetso call centre, which is situated at the DCS national Head Office. You can call +27 (0)860 000 327 or email enquiry.complaints@dcs.gov.za for assistance.

There are 2 private prisons (“APOPS prisons”), one in Louis Trichardt in the north and another in Bloemfontein. You may have the option of transferring to these private prisons, depending on whether they hold your security group, and if there is a willing inmate to transfer under an exchange process.

However, prisoners who have been detained in these facilities usually soon apply for a transfer out as they find they have stricter rules than the state prisons.

Accommodation

Sentenced prisoners and those on remand are held separately. Prisoners on remand often share cells with others awaiting sentencing. Most prisons have single and communal cells. A double cell is rare. Some prisons have triple cells. Communal cells house anything from 24 to 80 prisoners. Overcrowding is a major problem.

Inmates can apply to be assigned to a single cell. Factors such as whether you are studying and whether you might be in danger from the other prisoners are taken into consideration. However, most prisoners stay in a communal cell.

Cell furniture in South African prisons are sparse. Each cell should have a toilet and wash basin. Showers are mostly separate and shared with the other cells. Hot water is not always available. Many cells have bunk beds. Lockers for private possessions are not standard and where provided, may be inadequate for the number of prisoners actually accommodated in the cell. Shelves, tables or chairs are also rare.

Food and diet

A basic diet is served every day and provided free. The food, which is prepared by other inmates, is a combination from various food groups. Most British prisoners have told us they cannot live off the food provided alone as it is not palatable or nutritional. You may find that you need to supplement your diet by purchasing items from the prison shop or getting items brought in by family or friends from outside.

Vegetarian meals can be provided on request, but again, you may find that supplements are needed and these may have to be authorised by the prison doctor as a health requirement.

You are entitled to 3 meals per day. There is clean drinking water.

Offenders may also be provided with therapeutic diets that are prescribed by a medical doctor based on health reasons. Religious and cultural diets are normally accommodated.

Hygiene

On admission, you will be provided with clothing, bedding and toiletries. If you are awaiting trial, you will be issued with bedding and toiletry items only and can keep your own clothes.

You are responsible for keeping your cell clean. You can buy toiletries at the prison shop.

Work and study

You can take up official employment while serving a sentence in prison. You will be paid less than the minimum wages paid outside prison, but this can help you pass the days more quickly as most work is outside prison cells. In addition, it may help you build a reputation for good conduct which will assist you in obtaining credits for good behaviour. Good behaviour can assist you during the parole hearing process.

You may find long waiting lists for certain jobs as they are popular to other prisoners. You can also take up voluntary work which can also assist you in obtaining good behaviour credits.

You can study in prison. Formal education until Grade 12 is free and university or college correspondence education is self- funded. Prisoners Abroad may assist you with self-funded education. If you are interested, you should write to them for further information.

Contact and languages

Your contact with other prisoners will be restricted due to strict security movement measures. You will find gates throughout the prison, manned by correctional officers to prevent free movement within the facility. Contact is permitted during recreational activities but monitored by correctional officers.

You will be kept in the same prison cells as locals. Prison officials speak English and also use local languages to prisoners who do not speak English. Prison official documents are in English.

You can apply to have you own radio or television, this differs prison to prison. If you are placed in a communal cell you may find that the television or radio is on a non-English language station most of the time.

You will have access to a payphone that uses phone cards. You can request writing material or stationery from the prison. The majority of prisons rely on book donations, you will only have limited access to books in the library. Prisoners Abroad also donates English language books/magazines to prisoners. You can request local language materials through the post from Prisoners Abroad (including language textbooks and dictionaries). You will not have internet access in prison.

Exercise

You will be allowed to stretch outside on the prison courtyard for a minimum of one hour per day. There are exercise facilities such as gyms but often they are not properly equipped. The majority of prisons have football fields which can be also used for other sporting activities. You will be encourage to take part in exercises and sporting activities as it part of the prison rehabilitation processes.

You can play football and other sports depending on the prison time schedules, your sentence conditions and the record of your good behaviour.

In spite of the fact that prisons are called “correctional facilities”, prisoners may argue that there is no rehabilitation system. Workshops are usually either full or ill equipped. It therefore falls on prisoners to occupy their time during the day as constructively as possible.

Climate

The climate varies across the South African provinces with hot summers and cold winters. The climate also varies across the country. South African prisons don’t have air conditioning or heating.

Religion

Participation in religious services is voluntary and you can take part in the religious service of choice. You have the right to receive visits from a minister of your faith. Prisons are not staffed by religious ministers.

Rules and regulations (including drugs)

Prison rules and regulations will be explained to you when you are first admitted and you will be given a copy of this to keep with you. The sanctions or punishment vary according to the offence. Restriction of movement, curtailing of visits, access to shop facilities, restriction to exercise and religious activities are some of the sanctions. For more serious offences, segregation in isolation cells and/or a further charge can be imposed and you will be charged for a criminal offence.

Behaviours like insulting or abusing staff are considered serious and can lead to criminal charges where you will have to make an appearance in a normal court of law. You can also be detained in the isolation section if you pose a threat of violence or risk to correctional officers and other prisoners.

There is a grading system in place where prisoners will have a correctional sentence plan that will be evaluated by the correctional supervision committee.

There are 3 levels, namely maximum, medium and minimum. Most prisoners start at the maximum level which has the highest security policies. An evaluation takes place every 6 months with the possibility of being moved to a different level.

The levels all have different stipulations for privileges like number of visits, telephone calls and movement within the centre. Prisoners on the minimum level can also be selected to work in the prison work teams doing work in the kitchens, shops and sections as monitors where they can earn a gratuity in the form of cash.

Drugs are prevalent within South African prisons. Do everything you can to find other ways to cope with life in prison and avoid consuming drugs. Not only will drug consumption weaken your health, but drug taking can lead to debt. These debts will attract accelerated rates of interest and if not paid off, could result in serious physical harassment and violence.

Prison authorities do not routinely test prisoners for drugs. You can be charged criminally if you are found with drugs. The prison authorities can also place you in the isolation section until you appear in court for further charges. Drug rehabilitation is available in prison.

If you experience serious harassment, ill treatment, discrimination, threats or violence you should report this to the head of the prison, and to our consular staff, as soon as possible. It is our responsibility to take up allegations of mistreatment against a British national. However, we will only raise concerns with the prison administration if you request that we do so.

Prison: access to help and services

Receiving money

There are 2 ways you may be able to receive financial assistance while in prison:

• private funds: deposited to you by your family or friends.
• Prisoners Abroad: depending on the country where you are detained, if your family cannot support you financially, Prisoners Abroad may be able to send you a small grant every quarter for essentials (enough for one hot meal a day).

The UK government does not provide financial assistance to prisoners.

Private funds

While the FCDO does not provide financial assistance to prisoners, we may be able, within certain limits, to send you money from your family or friends. Please note that you cannot have cash sent to you in the post.

The FCDO operates a ‘Prison Comfort’ system for money transfers to prisoners. Ask your family or friends to get in touch with the FCDO to arrange this.

We cannot receive payment by credit or debit card, or by cash.

Prisoners Abroad

Prisoners Abroad may be able to assist you with funding for prison essentials and some medical care if you are not receiving regular funding from other sources. Prisoners in South Africa will be eligible to apply to the Craig Feehan Fund if they have no other forms of financial support available in country.

Medical and dental treatment

While you are detained, South Africa is responsible for ensuring your basic medical needs are met.

If you need medical or dental treatment you should ask to see the prison doctor or dentist. There will be an appointment list, which you will need to add your name to. Depending on the number of patients, prisoners can either be assisted the same day or may have to wait for up to a week or two.

Most doctors work on a rotation basis where they will visit a different prison within their respective district only one day per week. Basic medical attention is free of charge. It is likely that the treating doctor will speak good English.

Prison doctors are often the equivalent of GPs in the UK, so unusual or complex problems may be referred to a specialist at a state hospital outside of the prison. Prescribed medication or pain tablets will be made available to you in prison. They are usually ordered and obtained from the state hospitals, so it is advised that you renew your prescription well in advance as there are often delays in bringing the medicine in from the outside.

In some circumstances, it may be possible to receive treatment by your own private medical practitioner or dentist, at your own cost. You should talk to the prison medical staff and raise the request with your corrections officer if you wish to go down this route.

Prisoners Abroad may also provide assistance in the form of medical grants. If you have a long-standing medical problem and have received treatment for it in the UK or elsewhere, it may be useful if you have your medical records, or at least a report, sent from the respective doctor. We can assist you to access and share UK medical records if you want us to.

In case of a medical emergency you need to notify your corrections officer and request urgent medical care.

With your permission, we can make sure that any medical or dental problems you might have are brought to the attention of any police or prison doctor. We can also contact your GP in the UK, if the police or prison doctor requests previous medical records.

Letters and parcels

Friends and family can send you mail and parcels directly to the prison. The High Commission is not able to forward mail on your behalf back to the UK.

Prisoners often complain that the postal system for them receiving their mail sent directly to the prison is slow. This is usually contributed by the high volume of mail received by the prison for checking and distribution.

A detailed list of parcels allowed is available on the DCS website. You must use the person’s full name surname and their prisoner number when writing or addressing correspondence.

Telephone calls

Making telephone calls depends on the prison. Usually there is access to a pay phone. Times are allocated for this use for each section, but you may find that there are not enough phones to accommodate everybody wishing to make calls during this period.

Pre-paid telephone cards have to be used to make calls, which are usually available for purchase at the prison shop. It is not possible to receive calls in prison. Under exceptional circumstances and with prior approval you may be able to use the land line telephone of a prison officer.

Mobile phones are not allowed in the prison. If you are caught with a mobile phone you can be charged and appear in court for the charge of smuggling a prohibited or unauthorised device within the correctional centre. Normal practice within the prison is for the phones to be confiscated however correctional officers can use their discretion to punish offenders, like moving to another section or isolation.

Making a complaint about mistreatment

If you have been mistreated, you should inform consular staff as soon as it is safe for you to do so. We will then do our best to visit you, to check on your welfare, discuss the allegations, and explain any local complaints procedures and supportive organisations that you may wish to consider. With your permission, and where appropriate, we will consider approaching the local authorities if you have not been treated in line with internationally-accepted standards. If you have been mistreated, try to see a doctor, obtain a medical report and if possible take photos of your injuries.

You may have an opportunity to make a request and lodge complaints with a corrections officer after unlocking in the morning. The complaints and requests are referred and handled accordingly. The Judicial Inspectorate of Correctional Services oversee the correctional system and appoint an inspecting judge to oversee all complaints from prisoners.

Independent correctional centre visitors are appointed for each prison and they also visit the prisons to take complaints from prisoners. The office of the Judicial Inspectorate of Corrections Services then follows up with the Minister of Correctional Services, ensuring the department is held accountable.

Chapter 3: The South African judicial system

Overview

Is the system the same as the UK?

There are many similarities with the UK criminal justice system. Prisoners are presumed innocent until proven guilty; they have a right to legal representation, an interpreter, fair trial and appeal.

However, there are fundamental differences. For example, there is no jury system. In addition, the South African criminal justice system often has a backlog of cases and there can be substantial delays in bringing cases to trial. Prisoners can remain in prison without having been sentenced for considerable periods.

The FCDO cannot interfere with the judicial system. We cannot ask for your case to be judged more quickly just because you are British, or ask the authorities to waive any penalties.

First steps

What should happen after you are arrested?

Upon arrest it is likely that you will initially spend some time in a police station cell. Whilst you are at the police station the police will usually gather evidence and question you. The law states that you are entitled to appoint a lawyer. However, if you are unable to afford a lawyer the South African authorities may appoint one for you, as well as an interpreter, if necessary (although English is one of South Africa’s official languages).

The police should read out any charges against you and your rights. You should never sign anything you cannot read. If you find yourself under pressure to do so, ask to speak to your lawyer. You have the right to call a lawyer or the British High Commission to inform them of your arrest.

In a police station or prison you are likely to share a cell with several people. South African detention facilities are known to be extremely overcrowded. You may have access to your belongings, but this depends on whether the police consider them as evidence. If considered as evidence you will not be allowed to keep your possessions. Your passport and other identification will be taken away.

These can be difficult to retrieve afterwards. Since your passport is officially property of His Majesty’s Government we will try and retrieve it. During the different stages of detention all men, woman and juveniles are held in separate facilities.

If you have any questions on the legal aspects of your arrest, contact your lawyer. See our list of local English-speaking lawyers.

How long you can be remanded in custody

You may be kept on remand in custody in between your first court appearance and your trial, or released on bail. Normally this will be in the remand section of a correctional facility in separate cells from sentenced prisoners.

It is difficult to give an exact time period within which a case will come to trial. It will depend on how long it takes to finalise the investigation as well as the extent of the backlog on the court roll. Time in court is a scarce resource in South Africa, which can lead to long delays in cases coming to trial, and frequent cancellations of court appearances at short notice. Delays due to backlogs in forensic processes may also be a contributing factor.

There is a constitutional right to a fair trial within a reasonable timeframe, but this is not defined in law. South African courts may, in the case of unreasonable delay, make various orders depending on circumstances, including that the case be struck off the roll. You should seek advice from your lawyer to understand if this is likely to apply to you.

What happens when I am charged?

After your initial court appearance you may be remanded on bail or remanded in custody and transferred to a detention facility such as a prison.

Prisoners on remand and sentenced prisoners: differences

There are differences between sentenced prisoners and prisoners on remand. Remand detainees are presumed innocent and must, as far as is possible, be given access to amenities (visits, radio or access to exercise equipment for example) which they would have had if they were not been detained. Access to amenities are only restricted in extreme cases and only for the time prescribed by the prison following a disciplinary hearing.

Every remand detainee is required to respect the authority of and to obey the lawful instructions of the DCS and SAPS officials and the officials delegated to manage the Secure Care Facilities in the Department of Social Development (DSD). You would be expected to cooperate during searches, tests for communicable diseases and work with officials during the identification process.

After you are charged

In terms of Section 35(2) of the Constitution, you have the right to:

• be informed promptly of the reason for being detained
• remain silent
• be informed of their rights by the police and when informed, it must be in a language that the person can understand
• not be compelled to make any confession or admission that could be used in evidence against them
• choose to, and consult with an attorney of his/ her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights
• be brought before a court as soon as reasonably possible
• 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
• be released from detention if the interests of justice permit, subject to reasonable conditions
• be contained in conditions 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
• communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner
• be presumed innocent until proven guilty

Bail

It is possible to apply for bail, although bail may be refused where, for example, there is a likelihood that you will attempt to evade trial, interfere with witnesses, commit further crimes or be a danger to others. If you have been arrested on charges of a very serious offence (e.g. murder, rape or armed robbery), you will need to show that exceptional circumstances exist before bail is granted.

For less serious offences, a member of the South African Police Services (SAPS) might grant bail at the police station, under certain circumstances, before the first appearance in court.

For more serious offences, you will need to apply to the court for bail. Your lawyer will be able to advise you on this.

If you are released on bail the police will notify you in writing the next court appearance date, time and place. You must notify the police for any situation change whilst on bail. You will be arrested if you fail to adhere to any of your bail conditions.

The FCDO cannot transfer bail funds.

Trial and legal assistance

Legal assistance: lawyers and legal aid

If you wish to hire a private lawyer, see a list of local English-speaking lawyers. Prisoners Abroad can also supply general (non-country specific) information on legal aid, court proceedings and can advise on appointing a lawyer.

Our consular staff cannot and may not provide legal advice, but they can provide you with a list of lawyers. You can appoint a lawyer for yourself at any time after your arrest. Normally, if you hire a private lawyer they will ask for a cash advance on their estimated legal fees (which may be high) before they will take your case on. The British High Commission cannot pay legal fees or provide a guarantee of payment on your behalf.

If you cannot afford a private lawyer and you are charged with an offence the court will appoint lawyer for you. The court appointed lawyers are also known as state-lawyers or legal aid lawyers. They are free of charge and their ability varies. In general, the state lawyers may have very little time to compile evidence and move a case forward.

It is likely that the lawyer will only be available for discussions a short time before your court appearance. If you are not satisfied with your lawyer you may formally request to have them changed. You may also refuse the services of a state lawyer in order to represent yourself, but this is not recommended.

As in any country, some lawyers are better than others (paying a large fee does not guarantee that you will get a good lawyer). If you do decide to pay for a lawyer, it is wise to agree a flat rate for the whole case before they begin work or you may find yourself facing “extra expenses”. Ex-prisoners advise talking to other prisoners, as they often know which lawyers to avoid and what hidden costs there might be.

Prisoners Abroad can also supply information on legal aid, court proceedings and can advise on appointing a lawyer.

Legal Aid South Africa provides professional legal advice and representation to those who cannot afford it. They provide services to eligible non-citizens facing criminal charges (they do not provide services to non-citizens facing civil charges).

You can contact them using the details below:

Website	www.legal-aid.co.za
Telephone	0800 110 110 (Monday to Friday 8AM - 4PM)
Fraud and Ethics Hotline	0800 153 728
Mobile number	079 835 7179 (Please Call Me)
Email	communications2@legal-aid.co.za

Trial

There is no jury system in South Africa. Trials are heard by a judge, or magistrate. Other persons you may expect to be present in court would be the prosecutor, clerk, court orderly, the recording device operator and lawyers. It might be necessary to postpone a matter if one or more of these persons are absent.

All documents related to a case and further evidence must be submitted to the court. You will be asked to submit your plea to the charges faced. If a plea of not guilty is entered the case will go to trial. The state will have the opportunity to put their case to the court. You will then have the opportunity to state your case in defence. The state is required to prove its case beyond reasonable doubt. The court should deliver its verdict as soon as possible. Please note this process normally requires several court hearings over a period of months or years.

Sentences

Sentences are given by the magistrate or judge depending on the seriousness and nature of the crime committed. The court must also take the personal circumstances of the accused and the interest of society into consideration when assessing a proper sentence.

South Africa does not have the death penalty.

It is within the discretion of the court to impose fines – either as an alternative or in addition to a sentence of imprisonment. Fines are often imposed for smaller first time offences, as are suspended sentences.

Appeals

There is a constitutional right to appeal your verdict.

Appeal is one of the two forms of post-trial control in South African criminal procedure. An appeal may be appropriate when it is alleged that the court came to a wrong conclusion on the facts, misinterpreted the law or the sentence is inappropriate. Your lawyer is best placed to advise you on the process of appeals. Please note that a court of appeal does have the power to increase a sentence.

Reaching the end of your sentence

Reduction of sentence (remission) or early release

As a general rule, if you have served more than half of your sentence and have a record of good behaviour while in prison, you may be released on parole. For life sentences and some sentences in terms of minimum sentence legislation, longer periods apply. You may also be eligible for parole on medical grounds.

Clemency or pardon

The President of South Africa has the right to grant a presidential pardon. Presidential pardons are granted in the public interest after other legal avenues have been exhausted. The process for applying for a presidential pardon may take up to 2 years. You should talk to your lawyer if you wish to consider this route.

Financial penalties

The court can impose fines – either as an alternative or in addition to a sentence of imprisonment. Fines are often imposed for smaller first time offences, as are suspended sentences

Transfer to another prison within South Africa

It is possible to be transferred to another prison within South Africa. In most cases it is likely that the DCS will allocate you a prison closest to your resident family. However, this will also depend on whether the facility can detain you in accordance with the category of your sentence i.e. maximum, medium etc.

If you do not have family residing in South Africa it is likely that you will be placed in a facility that has space to accommodate you. In order for a transfer application to be approved there will usually have to be a prisoner from your desired facility who is willing to swap.

Transfer to a prison in the UK

There is currently no Prisoner Transfer Agreement in place between South Africa and the UK so it is not possible to transfer to serve your sentence in the UK.

Release and deportation

Shortly prior to release on parole, if a dual citizen of South Africa or your permanent residency has not been revoked, you may be transferred to a pre-release prison. This facility has an objective of slowly integrating you back into society. With a good track record you may be permitted to apply for weekend releases.

If you have been issued with a warrant for deportation, on your release date you will be transferred to South Africa’s only deportation facility called Lindela, situated in Krugersdorp in Gauteng. You will remain there for anything up to 2 weeks until the Department of Home Affairs has processed your flight ticket at the expense of the local authorities. We will ensure that a travel document is issued for your departure.

Sometimes people find that they face difficulties adjusting to life in the UK once they have left prison. You may find yourself ready for life on the outside but not prepared for living in the UK. Possibly you have never lived in the UK and have no connections there, or perhaps you have lost touch with friends and family. You may simply want to talk to another person who understands what you have been through, to help you consider what to do next.

If you are registered with Prisoners Abroad you can visit Prisoners Abroad when you first arrive back in UK for advice, to take a shower, use their temporary luggage store, make essential phone calls or use a computer. If you have no belongings Prisoners Abroad may be able to help with basic toiletries and finding suitable clothing.

If you know your release date in advance it is best to write and tell your caseworker when you are likely to arrive and what help you think you might need. If you have no money and nowhere to go, Prisoners Abroad’s Aftercare Service can help with:

• advice on finding emergency accommodation in the London area
• claiming welfare benefits, including emergency benefit payments if you are destitute
• making appointments with doctors and dentists
• putting you in touch with local agencies if you are not returning to the London area

Later on you may want advice on housing, looking for work, applying for training or getting counselling. Prisoners Abroad can refer you to the right agency.

Other sources of practical help back in the UK are:

The Salvation Army

UK Helpline: +44 (0)20 7367 4888
Monday to Friday 8am to 4pm, or contact your local Salvation Army branch

The Prison Fellowship

UK Helpline: +44 (0)20 7799 2500
Monday to Friday 9am to 5pm

Your criminal record in the UK

We will not normally pass on information about your case to a third party without your consent. However, if you’re arrested for certain serious offences, such as child sex abuse or drugs crimes, our staff must tell other relevant UK authorities. It is possible that information about this may appear if a Criminal Records Bureau check were carried out by a prospective employer.

Chapter 4: Additional information

Additional Information

Prisoners Abroad

Since 1978 the charity Prisoners Abroad has offered practical support and advice to British citizens imprisoned abroad. It is the only UK charity providing this service. It is available to all, whether guilty or innocent, convicted or awaiting charge or trial. Prisoners Abroad supports your health and welfare during your imprisonment.

It can also provide support on your return to the UK, through their resettlement service (if you have registered whilst in prison). They can also provide support and advice to your family when you are in prison. To access any services, you must first register with Prisoners Abroad by signing and returning their authorisation form.

Once you seek help from Prisoners Abroad, the Prisoner & Family Support Service will be your point of contact for advice and information. The type of assistance they can offer varies from country to country, but generally they can provide you with information, in English, on:

• your rights as a prisoner
• issues that may affect you such as health or transfer to the UK
• getting magazines, newspapers, books and the regular Prisoners Abroad newsletter
• learning the language of your country of imprisonment
• translating documents
• grants for food if you are in a developing country and do not have funds from other sources
• grants for essential medicines and toiletries if you do not have funds from other sources
• preparing for release
• help for your loved ones, including information, family support groups and, in a few cases, assistance with the cost of visiting
• Freepost envelopes to help you stay in touch with others

Prisoners Abroad

UK Helpline: +44 (0)20 7561 6820 or 0808 172 0098
Mondays to Fridays 9:30am to 4:30pm (UK time)

89 – 93 Fonthill Road
London N4 3JH
UK

Glossary of terms

Useful legal terms

accused	a person charged with a crime
Act	a law made by parliament
action, civil	a case made by someone against another person or institution to claim money for damages or losses; also called civil claim or suing
action, criminal	a case made by the state to punish someone who has committed a crime; also called a criminal charge/case or prosecution
acquitted	found not guilty
admissible	allowed as evidence in a court case
admission	saying you did something or you know something without admitting guilt
admission of guilt	admitting guilt for a small crime and paying a fine instead of going to court e.g. traffic fine
advocate	a lawyer who specialises in court work; also called counsel
affidavit	a written statement that is sworn to be the truth in front of a commissioner of oaths; can be used as evidence in court
aggravating factors	things that will cause you to get a heavier sentence, e.g. previous convictions, causing bad injuries
alibi	your witness who can say you were doing something else at the time of the crime
alien	a person who is not a citizen of the Republic of South Africa
alleged / Allegation	when something has not yet been proved in court
appeal	asking a higher court or authority to overrule the judgment, sentence or decision of a lower court or authority
attorney	a lawyer who works in a law firm
bail	money paid by the accused to the court so he/she can go free until the trial which will decide whether he/she is guilty or not
Bill of Rights	a list of rights and freedoms for all people living in a country, which is part of the law of that country; South Africa has a Bill of Rights in the Constitution
case-docket	file opened by police when investigating a crime
charge-sheet	the paper in the Magistrate’s Court that lists all the crimes that the accused is charged with
district surgeon	doctor employed by the state to gather medical evidence for court cases, to treat prisoners, to give the public injections, etc.
detainee	person held in prison or police cells
further particulars	asking the other side to give you more details about the charge or the allegations in a criminal or civil case
hearsay evidence	something you heard from someone else
High Court	higher court than Magistrate’s Court, for serious cases or cases involving large amounts of money
identity parade	where you try to point out someone to be charged in a criminal case
inquest	judicial investigation into whether any person or group of people was responsible for the death of someone who did not die of natural causes
interdict	a court order to protect someone or to force someone to do something
interim order	a court order that is temporary (for the time being) and not final
legal aid	state assistance to someone who can’t afford a lawyer
Nolle Prosequi	the certificate that the Director of Public Prosecutions writes when he/she decides not to prosecute someone
perjury	lying under oath in court or in a sworn statement
plaintiff	the person who makes a civil claim
power-of-attorney	a legal document you sign giving someone else the right to do certain things for you, e.g. collect your wages
precedent	example or standard that can be used or followed in future
prima facie	at first sight, as it looks at first
probation officer	person, usually a social worker, who has to make sure that someone on probation behaves themselves
remand	postpone
remission	time taken off a prison sentence for good behaviour
self-incrimination /right against self-incrimination	the right to stay silent and not to say things which can be used against you in court
state witness	witness used by the prosecutor to prove the case against the accused
statement	a written or verbal account of what happened, which could be used as evidence in court
Statutes	laws passed by parliament; also called Acts
subpoena	official paper used to tell witnesses they must come to court to give evidence
summons (civil)	a document that contains a demand for money and starts a civil action
summons (criminal)	a document calling a person to come to court to stand trial for breaking the law
Supreme Court of Appeal	the highest court in the country (except for the Constitutional Court)

Annex

• FCDO guidance: Support for British nationals abroad
• FCDO guidance: Arrested abroad: advice for British nationals
• List of local English-Speaking Lawyers
• Prisoners Abroad Forms
• Department of Correctional Services
• The Constitution of the Republic of South Africa

Criminal law processes of South Africa:

• Criminal Procedure Act 51 of 1977