Can charges be withdrawn if the complainant changes their mind?

No, not automatically. In South Africa the decision to prosecute a criminal charge, or to withdraw it, belongs to the National Prosecuting Authority. It does not belong to the complainant.

This surprises people. You laid the charge, so it feels like your case. Legally it is not. A crime is treated as an offence against the state, and the prosecutor decides whether the state carries on. The prosecution's independence and its power to institute and discontinue criminal proceedings come from the Constitution of the Republic of South Africa, 1996 and the National Prosecuting Authority Act 32 of 1998.

A complainant who changes their mind can absolutely say so, and prosecutors do listen. But saying so is a request, not an instruction, and it carries risks that nobody usually explains at the counter.

What actually happens when a complainant asks to withdraw

Step one: you tell the investigating officer or the prosecutor. In practice you go to the police station or to court and say you no longer want to proceed. You are usually asked to make a written statement explaining why. That statement is sometimes called a withdrawal statement.

Step two: the prosecutor considers it. The prosecutor asks two questions. Is there still enough evidence to prosecute without you? And is it in the public interest to carry on?

Step three: the prosecutor decides. There are three common outcomes. The charge is withdrawn. The charge proceeds anyway on other evidence. Or the prosecutor keeps the matter on the roll and subpoenas you as a witness.

Step four: the court is told. A withdrawal is placed on the record and the accused is released from the case. What that means for the future depends on the stage: a case withdrawn before the accused has pleaded can generally be reinstated later if new evidence emerges.

Why the prosecutor may carry on without you

Prosecutors do not simply drop cases on request, particularly in three situations.

There is other evidence. A medical report, photographs of injuries, security footage, a confession, a recovered item, another witness. Your statement may be the least important part of the file.

It is a domestic violence or assault matter. Prosecutors know that complainants in these cases are frequently pressured to withdraw, sometimes by the accused, sometimes by family, sometimes by financial dependence. A withdrawal request in a domestic matter is treated with real caution for exactly that reason. Expect to be asked, more than once and in private, whether anyone has spoken to you about withdrawing.

The offence is serious. The more serious the charge, the less weight a withdrawal request carries. Prosecutors also have to think about the accused's next complainant.

The risks of asking for a withdrawal

This is the part people are not warned about.

Perjury and defeating the ends of justice. If your original statement was true and you now sign a second statement saying it was false, you have said one of two untrue things under oath. A complainant who lies can be charged. Prosecutors do not always pursue this, but they can, and in serious matters they sometimes do.

Being subpoenaed anyway. If the prosecutor decides to proceed you can be summoned to court as a witness. A witness who ignores a subpoena can be arrested and brought to court. A witness who refuses to testify can be dealt with by the court.

Pressure becomes a separate offence. If someone is pressuring you to withdraw, that person may be committing an offence in itself. Tell the prosecutor. It changes how the case is handled and it may be a bail issue.

Losing the protection you needed. People sometimes withdraw an assault charge and then discover that the protection order and the criminal case were doing different jobs. A protection order under domestic violence law is a separate process from the criminal charge, and withdrawing one does not withdraw the other.

If you are the accused

Do not go to the complainant. This is the single most common and most damaging mistake made by people out on bail.

Approaching a complainant to ask them to withdraw can be interference with a witness. It can get your bail cancelled, add a charge, and turn a case the state was doubtful about into one it now takes seriously. If you are out on bail there is very often an explicit condition that you have no contact with the complainant. Breaching it is a fast route back into custody.

If you believe the complaint is false, the correct route is through your legal representative to the prosecutor, in writing, with whatever documents support your version.

A worked example

The names, dates and figures are illustrative only.

Nomsa lays an assault charge against her partner Andile in March. He is arrested, appears in court and is released on bail of R2 000 on condition that he does not contact her.

In April they reconcile. Nomsa goes to the police station and says she wants the case dropped. She is asked to make a written statement and does so, saying she no longer wishes to proceed.

The prosecutor looks at the file. There is a J88 medical report completed by a doctor on the night, photographs of Nomsa's injuries, and a neighbour's statement describing what she heard. The prosecutor decides the case can proceed without Nomsa's cooperation and keeps it on the roll. Nomsa is subpoenaed as a state witness.

At court the prosecutor speaks to her in private and asks whether anyone pressured her. She says no. The prosecutor weighs the strength of the evidence, the fact that this is a first incident on record, and the public interest, and eventually agrees to withdraw the charge before plea, on the basis that Nomsa is aware the matter can be reinstated if there is a further incident.

Two things to notice. The withdrawal statement did not end the case. And the decision, in the end, was the prosecutor's, not Nomsa's.

What to do this week

1. Speak to the prosecutor, not only the police. The prosecutor makes the decision, so that is the person who needs to hear your reasons.
2. Be honest about why. If you have been pressured or threatened, say so. It is the single most important fact in the file.
3. Do not sign a statement saying your first statement was a lie unless it genuinely was. That statement can be used against you.
4. If you are the accused, stay away from the complainant. Send everything through a legal representative.
5. Check whether a protection order is in place and whether you still need it. It is a separate process from the criminal case.
6. Get the case number and the next court date in writing, whichever side you are on.
7. Phone Legal Aid South Africa on 0800 110 110 if you are the accused and cannot afford a lawyer.

Documents to gather

Your identity document. The case number, which appears on the docket and on any court notice. Any statement you have already made, if you were given a copy. Medical reports, photographs and messages relating to the incident. Any protection order or interim order. Any subpoena you have received. If you are the accused, your bail conditions in writing, so you know exactly what contact is prohibited. If someone has pressured you, keep the messages, voice notes and call logs. Those are evidence in their own right.

A realistic timeline

Nothing about this is same day. Expect at least one further court appearance after you ask, and expect the accused to remain on bail conditions until the matter is formally withdrawn.

Common mistakes and what they cost

• Assuming the case ends when you sign the withdrawal statement. It does not. Cases proceed on other evidence all the time.
• Signing a statement that your first statement was false. If the first one was true, you have exposed yourself to a charge.
• The accused contacting the complainant directly. Bail cancelled, a possible further charge, and a prosecutor who now believes there is something to hide.
• Not telling the prosecutor about pressure. The prosecutor cannot act on what nobody tells them.
• Withdrawing the criminal case and the protection order together without thinking about whether you still need the protection order.
• Ignoring a subpoena. A witness who does not attend can be arrested and brought to court.

If you cannot afford an attorney

If you are the accused, tell the court that you want a lawyer and cannot afford one. That right comes from section 35 of the Constitution of the Republic of South Africa, 1996, and the court must deal with the request rather than proceed as though you had said nothing. Legal Aid South Africa is on 0800 110 110 and applies a means test, and it covers criminal defence in most serious matters. Thresholds change, so phone rather than assume. University law clinics in most major centres also take criminal work.

If you are the complainant, you do not need an attorney at all. The prosecutor runs the case and you do not pay for it. If you feel unsafe, ask the court about a protection order, and ask the prosecutor about the court's victim support arrangements. Both are free.

If you are paying privately, see what a criminal attorney costs so you know what a written approach to the prosecutor should reasonably cost.

Frequently asked questions

The most common question is whether the accused can simply pay the complainant to withdraw. Paying compensation is sometimes part of a legitimate settlement in a minor matter, and a prosecutor may take it into account, but paying someone to lie or to disappear is a serious offence for both people involved. People also ask whether a withdrawn case shows on a criminal record. A withdrawal is not a conviction, so it should not appear as one, and if something does show up wrongly, see how to clear your criminal record. And they ask whether the case can come back. Before plea, generally yes.