What does a criminal attorney cost in South Africa?

Criminal defence is priced by the event, not by the case. An attorney quotes you for a bail application, for a day in court, for a plea negotiation. Nobody can quote you a single number for "the case", because nobody knows yet how many days it will run.

All the figures on this page are typical ranges excluding VAT. No attorney is bound by them, and a quote from a Sandton firm and one from a small town practice can differ by a factor of three for the same work.

Before you read any further: if you cannot afford this, you may not have to pay it. Legal Aid South Africa is on 0800 110 110, applies a means test, and covers criminal defence in most serious matters. Start there.

What each fee actually buys

The consultation. An hour, sometimes less. You explain what happened, the attorney tells you what the charge means, what the likely process is, and what the next appearance will involve. A good consultation ends with a written fee estimate for the next step only. If someone quotes you a single figure for the whole case at the first meeting, ask what happens if the trial runs five days instead of two.

A district court bail application. Preparation, taking instructions, drafting an affidavit if needed, and one morning in court. If the prosecutor does not oppose, this can be over in twenty minutes. You are paying for the preparation and the appearance, not for the twenty minutes.

An opposed regional court bail application. This is a different animal. It is effectively a mini trial. Your evidence goes in, usually by affidavit, and you are cross examined on it. The investigating officer testifies about the strength of the case and the risks of releasing you. The attorney has to prepare a full package: proof of address, employment letters, sureties, medical evidence where relevant. Where the state invokes Schedule 5 or Schedule 6 of the Criminal Procedure Act 51 of 1977, the burden sits on you rather than on the state, which is exactly why this hearing costs what it does. See Schedule 5 and Schedule 6 bail.

A day in court. The daily rate covers the appearance and, usually, the preparation for that day. Ask which. Some day rates exclude preparation, and preparing a day of cross examination can take as long as the day itself.

A plea and sentence agreement. Negotiating with the prosecutor, agreeing the facts and the sentence, drafting the agreement, and appearing when it is placed before the court. It can be the cheapest route through a case where the evidence is strong, because it removes trial days.

An expungement application. Mostly this should be zero. You apply to the Director-General of the Department of Justice and Constitutional Development yourself and the Department charges nothing to consider it. See how to clear your criminal record and the expungement eligibility calculator.

Attorney fees versus an advocate's brief fee

These are two separate bills and people are regularly caught out by it.

The attorney is the one you instruct. They take your statement, gather evidence, deal with the prosecutor, and manage the file. In the district and regional courts, an attorney with a right of appearance often runs the trial themselves.

The advocate, also called counsel, is a specialist courtroom lawyer. You do not instruct an advocate directly in the ordinary course. Your attorney briefs them. Counsel charges a brief fee, usually per day, and it is billed on top of everything the attorney charges. The attorney still attends, still prepares and still bills for their own time.

So a five day regional court trial with counsel is not five daily rates. It is counsel's five brief fees, plus the attorney's attendance and preparation, plus consultations, plus disbursements.

Counsel is worth it in a serious matter, in the High Court, or where the state has put a senior prosecutor on the case. In a straightforward district court trial it is often unnecessary. Ask your attorney directly: is counsel needed here, and what does it add?

A worked budget: first appearance plus bail

The figures are illustrative and sit around the middle of the ranges above.

Thandiwe is arrested on a Friday. Her brother phones an attorney on Saturday morning.

That is before a single word of the trial. The bail money itself, say R5 000, is separate and is refundable at the end of the case if she attends every date.

If the state had invoked Schedule 5 and the application had been opposed in the regional court, the same stage would realistically have cost R25 000 to R40 000, because the attorney would have had to assemble employment letters, a surety with documents, an affidavit and a response to the investigating officer's evidence.

Legal Aid would have covered all of it at no charge, subject to the means test.

A worked budget: a defended regional court trial

Same illustrative basis. Assume a matter that runs to four days of evidence over eight months, with counsel briefed.

Two things stand out. Counsel's brief fees are the biggest single line. And the postponements, which achieve nothing, still cost R14 000. That is why a matter that gets postponed six times is not just slower, it is materially more expensive.

The same matter run by Legal Aid costs the accused nothing.

What Legal Aid covers for free

Legal Aid South Africa, on 0800 110 110, is a statutory body established under the Legal Aid South Africa Act 39 of 2014. Subject to its means test, it covers criminal defence in most serious matters, including advice before and at the first appearance, bail applications including opposed regional court applications, negotiating with the prosecutor including about diversion, defending a trial in the district or regional court to finality, High Court representation in the most serious matters, and appeals and reviews where there are grounds.

The means test thresholds change, so phone rather than assume you earn too much. If you are unemployed or in custody you are very likely inside it. See do I qualify for Legal Aid.

Separately, you must tell the court that you want a lawyer and cannot afford one. Section 35 of the Constitution of the Republic of South Africa, 1996 gives an accused the right to a legal practitioner at state expense where substantial injustice would otherwise result, and the court must deal with that request.

Questions to ask before you instruct anyone

• What is your hourly rate, and the rate of everyone else who will touch this file?
• What is the fee for the next appearance only, not for the whole case?
• Does your daily trial rate include preparation, or is that billed separately?
• Will counsel be briefed, and what is counsel's day rate?
• What do postponements cost me?
• What happens to the fee if the matter is withdrawn before trial?
• Will you tell me before the total passes an agreed amount?
• What disbursements should I budget for: transcripts, travel, expert reports?
• Can I pay per stage rather than a lump sum upfront?

Get the answers in a written mandate. An attorney who will not put a fee estimate in writing is telling you something.

Common cost mistakes

• Paying a large lump sum upfront for "the case". You have no idea how many days it will run, and neither do they. Pay per stage.
• Not asking whether counsel will be briefed. Discovering a second bill mid trial is the most common complaint in criminal fee disputes.
• Spending the whole budget on bail. Bail is important, but a client who has nothing left for the trial has bought the wrong thing.
• Paying an agent for an expungement. You do this yourself, and the Department charges nothing to consider the application. Fees of many thousands of rand for posting a form are a straight loss.
• Missing court dates. A warrant, a fresh arrest and a second bail application cost far more than a taxi fare.
• Assuming you earn too much for Legal Aid and never phoning to check.
• Confusing bail money with fees. Bail is refundable if you attend every appearance. Attorney fees are not.

How to keep the bill down

Bring one organised bundle in date order rather than fifteen separate messages. Write a one page timeline with dates, names and places. Answer your attorney's calls, because chasing a client is billable. Give witness names and numbers at the start, not the week before trial. Do not miss appearances. And be honest about the bad facts, because an attorney who is surprised in court fixes it at your cost.

If money is tight and you are just outside the means test, consider paying privately for the one stage that matters most, which is usually the bail application, and using Legal Aid, a law clinic or careful self preparation for the rest.

The free route

You are not shut out if you have no money. Legal Aid South Africa on 0800 110 110 covers criminal defence in most serious matters, subject to a means test. Tell the court that you want a lawyer and cannot afford one, and make sure it goes on the record. University law clinics in most major centres take criminal work at no charge. Community advice offices will help you understand the process and the paperwork. Legal Aid judicare arrangements sometimes fund a private attorney at Legal Aid's cost. And an expungement application is one you make yourself, to the Department of Justice and Constitutional Development, at no cost.

LawMatch is not a law firm and does not give legal advice. These figures are a guide to help you have an informed conversation with an attorney about fees.