Most business owners never expect to deal with the criminal justice system. But fraud, corruption, tax offences, health and safety incidents and regulatory breaches can lead to criminal investigations, search warrants and arrests, sometimes of directors and managers who were not personally involved in any wrongdoing.
How you respond in the first hours of an investigation can affect the outcome significantly. This article explains your rights, what to expect, and the corporate criminal liability risks that every business should understand.
Your constitutional rights
Section 35 of the Constitution protects everyone who is arrested, detained or accused. If you are arrested, you have the right to:
- remain silent, and to be told of that right and of the consequences of not remaining silent;
- not be compelled to make a confession or admission that could be used against you;
- be brought before a court as soon as reasonably possible, and not later than 48 hours after arrest. If the 48 hours expire outside ordinary court hours or on a day that is not a court day, you must be brought before court on the next court day;
- be released from detention, with or without bail, if the interests of justice permit;
- choose and consult with a legal practitioner, and to be told of this right promptly; and
- be detained in conditions consistent with human dignity.
These rights apply whether you are a suspect in a road incident or a director arrested in a corruption investigation. Exercise them politely and clearly.
If you are arrested
- Stay calm and do not resist. Resisting arrest can lead to additional charges.
- Ask to speak to your attorney and do not answer questions or make statements until you have done so.
- Do not sign a warning statement or any other document without legal advice.
- Ask what you are being arrested for, and note the names and units of the officers involved.
Bail
Bail is governed by the Criminal Procedure Act 51 of 1977 (CPA). For less serious offences, the police or a prosecutor may grant bail before the first court appearance. For more serious offences, only a court may grant bail.
The CPA groups offences into schedules. For offences in Schedule 5, such as certain fraud and corruption offences involving large amounts, the accused must show that the interests of justice permit release. For the most serious offences in Schedule 6, the accused must show exceptional circumstances. A bail application must be properly prepared, usually with an affidavit setting out the accused’s personal circumstances, assets, ties to South Africa and the strength of the defence. What is said in a bail application can later be used at trial, so it must be approached carefully.
Search warrants and requests for information
The police may generally search premises and seize articles only with a search warrant issued by a magistrate or judge, unless a recognised exception applies. If officials arrive with a warrant:
- ask for a copy of the warrant and read its scope carefully: the premises, the items and the offence it covers;
- call your attorney immediately and ask the officials to wait a reasonable time for them to arrive;
- do not obstruct the search, but do not volunteer information or consent to searches beyond the warrant;
- keep a record of everything seized and ask for an inventory; and
- identify privileged documents, such as communications with your lawyers, and object to their seizure.
Investigators may also use a section 205 subpoena to require a person to provide information to a court. Regulators, including SARS, the Competition Commission, the FSCA and the Information Regulator, have their own investigation and search powers.
Corporate criminal liability
A company can be prosecuted for offences committed by its directors and employees. Under section 332 of the CPA, the act of a director or servant acting within the scope of their duties, or in furthering the company’s interests, is treated as the act of the company. Directors and servants may also be personally prosecuted in certain circumstances unless they can show they took no part in the offence and could not have prevented it.
Corruption: the duty to report and the duty to prevent
The Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA) imposes two important obligations on businesses:
- The duty to report (section 34). A person in a position of authority, including directors, partners and managers, who knows or ought reasonably to have known or suspected that certain corruption offences, theft, fraud, extortion or forgery involving R100,000 or more has been committed, must report it to the police. Failing to report is itself an offence.
- Failure to prevent corruption (section 34A). Since 2024, a company commits an offence if a person associated with it, such as an employee, agent or contractor, gives or offers a bribe to obtain or retain business or an advantage for the company. The company has a defence if it had adequate procedures in place to prevent this.
Section 34A makes anti-corruption compliance a board-level issue. Companies should have a written anti-bribery policy, due diligence on agents and intermediaries, gift and hospitality rules, training, and whistleblowing channels.
Who investigates
Commercial crime is investigated by the SAPS, including the Directorate for Priority Crime Investigation (the Hawks), and prosecuted by the National Prosecuting Authority. The NPA’s Investigating Directorate Against Corruption (IDAC) investigates serious corruption, including state capture matters. In July 2026, the Minister of Justice announced a reset of IDAC, including a review of its staff, cases and procedures, following allegations against some of its members. The Special Investigating Unit and the Asset Forfeiture Unit may also be involved, including through preservation and forfeiture orders over assets connected to crime.
Plea and sentence agreements
Under section 105A of the CPA, an accused, represented by a legal practitioner, may negotiate a plea and sentence agreement with the prosecution. The agreement must be approved by the court. In appropriate cases, this can provide certainty and limit the cost and reputational damage of a long trial. It should only be considered after careful advice on the strength of the state’s case.
Practical steps for businesses
- Have a protocol for unannounced visits by police or regulators, and make sure reception and management know it.
- Keep your attorney’s contact details readily available.
- Adopt and implement an anti-bribery policy and adequate procedures under section 34A.
- Know when the section 34 duty to report is triggered, and act on it.
- Investigate allegations of misconduct promptly and under legal privilege where appropriate.
- Do not destroy documents or data once an investigation is anticipated.
How O’Reilly Law can help
We assist individuals and businesses facing criminal investigations and charges, particularly in commercial crime. We attend at arrests and searches, prepare and argue bail applications, deal with prosecutors and investigators, advise on corporate criminal liability and PRECCA compliance, and conduct internal investigations. Where specialist trial counsel is required, we brief experienced advocates and manage the defence.
Facing an investigation, a search or an arrest? Contact us immediately.
Related reading: Directors’ duties and personal liability · Protected disclosures and whistleblowers
This article is general information and not legal advice. If you have been arrested, contact an attorney immediately. Correct as at October 2026.