An awaiting-trial prisoner, more correctly called a remand detainee, is someone held in custody after arrest but before the criminal trial ends. They have not been convicted of any offence. In South African law that distinction matters, because the Constitution treats unconvicted people as innocent and gives them strong protections while they are in detention.
The number of remand detainees in South Africa is high. Many spend months, and sometimes years, in correctional centres before their matters are finalised. The rights, laws, and legal process that apply to them come from the Constitution of the Republic of South Africa, 1996, the Criminal Procedure Act 51 of 1977, and the Correctional Services Act 111, 1998.
This article sets out the rights of remand prisoners, explains the 48-hour rule and the bail process, and describes how remand detention works in practice. It is written for detainees, their families, and anyone trying to understand what the law allows and what it forbids.
The Presumption of Innocence and Section 35 of the Constitution
The starting point is section 35 of the Constitution. Section 35(3) gives every accused person the right to a fair trial, which includes the right to be presumed innocent. Until the State proves guilt beyond reasonable doubt, a remand detainee must be treated as innocent.
Section 35(1) and 35(2) establish the rights of detainees, adding protections for arrested and detained individuals. A remand detainee must be informed of the reason for their detention, may consult a legal practitioner of their choice, may challenge the lawfulness of the detention before a court, and must be kept in conditions consistent with human dignity. These rights apply from the moment of arrest and continue until the trial ends.
The Constitutional Court has repeatedly stressed that remand detention is not punishment. Because the detainee is presumed innocent, the conditions of holding must reflect that status, and any restriction on liberty must be justified by a legitimate purpose such as securing attendance at trial or protecting the public.
The 48-Hour Rule: Section 50 of the Criminal Procedure Act
After arrest, the police cannot simply hold a person indefinitely. Section 50 of the Criminal Procedure Act 51 of 1977 requires that a person arrested without a warrant be brought before a lower court as soon as reasonably possible, but no later than 48 hours after the arrest, excluding weekends and public holidays.
At that first appearance the court must inform the detainee of the charges, advise them of their right to legal representation, and consider whether they should be released or further remanded. If the State wants to keep the person in custody, it must show cause. The 48-hour rule is one of the most important safeguards against arbitrary detention.
Rule 35 of the Criminal Procedure Act adds a further protection. A detainee, or someone on their behalf, may apply to the court at any time to be brought before a judge to challenge the lawfulness of the detention. If the detention is unlawful, the court must order release. This is the modern successor to the ancient writ of habeas corpus.
The Right to Bail
Bail is the mechanism that balances the public interest in having an accused person stand trial against the individual’s right to freedom before conviction. Section 35(1)(f) of the Constitution gives an arrested person the right to be released from detention with or without bail, unless the interests of justice list another outcome.
Sections 50 and 60 of the Criminal Procedure Act govern the bail process. Bail can be set by the police at the police station for less serious offences, or by the court for more serious charges. The court considers factors set out in section 60, including the likelihood that the accused will stand trial, the risk of interference with witnesses or evidence, the gravity of the offence, and the safety of the public.
Bail is not a fine and it is not a conviction. The amount paid is returned, less administrative fees, once the matter is finalised and the accused has attended every court date. Failing to attend court after being granted bail is itself a criminal offence under section 67 of the Act.
The Right to a Speedy Trial
Section 35(3)(d) of the Constitution gives every accused person the right to a trial that begins and concludes without unreasonable delay. Long remand periods are a recognised problem in South Africa, and the courts have held that excessive delay can justify release or other relief.
In practice, delays come from crowded court rolls, incomplete dockets, and absent witnesses. Where delay becomes unreasonable, an accused person may apply for the charges to be struck from the roll, or in serious cases may approach the High Court for relief. Keeping clear records of postponements and the reasons for them is essential to a later speedy-trial challenge.
Conditions of Detention for Remand Detainees
Although remand detainees have not been convicted, they are held in correctional centres run by the Department of Correctional Services. The Correctional Services Act 111 of 1998 and the Constitution require that they be kept in conditions consistent with human dignity.
The Act separates unsentenced detainees from sentenced prisoners where practicable. Remand detainees must be given adequate accommodation, nutrition, clothing, and medical treatment, and they may not be subjected to punishment or discipline that applies to sentenced offenders. Overcrowding remains a serious problem in many centres, and it has been the subject of repeated court findings.
Independent oversight is provided by the Judicial Inspectorate for Correctional Services and by Independent Correctional Centre Visitors, who receive complaints from detainees and try to resolve them. A detainee who has been denied medical care, family contact, or adequate conditions may complain through this system or approach the court directly.
Access to a Lawyer
The right to legal representation is one of the most practical protections a remand detainee has. Section 35(2)(b) of the Constitution gives a detained person the right to choose and consult a legal practitioner, and to be informed of that right promptly. Section 35(3)(f) extends the same right to an accused person at a state-funded trial where substantial injustice would otherwise result.
A lawyer can apply for bail, challenge unlawful detention under Rule 35, raise a speedy-trial objection, and engage with correctional officials about conditions. For an unrepresented detainee, the Legal Aid South Africa scheme provides a state-funded lawyer in qualifying matters. Private representation is also available for families who instruct a firm directly.
How the Remand Process Works in Practice
A typical remand flows through a number of stages, each with its own legal significance:
- Arrest. The detainee is taken into custody and must be informed of the reason for arrest.
- First appearance within 48 hours. The detainee is brought to court, the charges are put, and the right to a lawyer is confirmed.
- Bail application. The detainee applies for release pending trial, with the court weighing the interests of justice under section 60.
- Remand if bail is refused. The detainee is held at a correctional centre and the matter is postponed for further investigation or trial.
- Trial and verdict. The State must prove guilt beyond reasonable doubt, failing which the accused is acquitted.
At every stage the detainee keeps the rights in section 35, and the State bears the burden of justifying continued detention.
Frequently Asked Questions
What rights does an awaiting-trial prisoner have in South Africa?
Awaiting-trial prisoners are protected by section 35 of the Constitution. They have the right to be presumed innocent, to be informed of the charges, to consult a legal practitioner, to challenge the lawfulness of their detention, to apply for bail, to a trial without unreasonable delay, and to conditions of detention consistent with human dignity.
What is the 48-hour rule in South African criminal procedure?
Section 50 of the Criminal Procedure Act 51 of 1977 requires a person arrested without a warrant to be brought before a lower court as soon as reasonably possible, and no later than 48 hours after arrest, excluding weekends and public holidays. At that appearance the court considers bail and the lawfulness of continued detention.
Can an awaiting-trial prisoner be released on bail?
Yes. Section 35(1)(f) of the Constitution gives an arrested person the right to be released with or without bail unless the interests of justice demand otherwise. The court weighs factors such as flight risk, the gravity of the offence, the risk of interference with witnesses, and public safety under section 60 of the Criminal Procedure Act.
How long can someone be held as an awaiting-trial prisoner?
There is no fixed maximum period, but section 35(3)(d) of the Constitution guarantees a trial that begins and concludes without unreasonable delay. Where delay becomes unreasonable, the accused may apply to have the charges struck from the roll or to approach the High Court for relief, including release.
What is Rule 35 of the Criminal Procedure Act?
Rule 35 allows a detainee, or someone acting on their behalf, to apply to court at any time to be brought before a judge so that the lawfulness of the detention can be tested. If the detention is found to be unlawful, the court must order the detainee’s release.
Get help with a criminal law matter. If you or a family member is in remand detention, the Criminal Law department at Otrebski Attorneys can advise on bail, unlawful detention, and the remand process. Our women-led, Level 4 B-BBEE practice is based in Sandton, and Director Nastasja Otrebski leads the team that handles criminal defence work for clients across Gauteng and South Africa.
Disclaimer. This article is general information about South African criminal procedure, not legal advice for a specific matter. Remand and bail decisions turn on the facts of each case and on current court practice. For advice about a particular detention, consult a qualified attorney or Legal Aid South Africa.