How does a criminal trial work in South Africa?

A criminal trial in South Africa runs in a fixed order. You plead. The state presents its case and each of its witnesses is cross-examined. Then the defence case follows, if the accused chooses to present one. Both sides argue. The court delivers judgment. Only if there is a conviction does the court then move on to sentence.

Two principles run through all of it. The state carries the burden of proof, and that burden is proof beyond reasonable doubt. And the accused is not obliged to testify. You do not have to prove that you did not do it. The state has to prove that you did.

Trial procedure sits in the Criminal Procedure Act 51 of 1977. The rights that shape it, including the presumption of innocence, the right to remain silent, the right to a fair trial and the right to legal representation, sit in section 35 of the Constitution of the Republic of South Africa, 1996. The prosecutor acts for the state under the National Prosecuting Authority Act 32 of 1998. If you need help now, Legal Aid South Africa is on 0800 110 110.

The stages of a trial, in order

1. The charge is put. The charge is read to you in a language you understand. You are entitled to an interpreter if you need one.

2. You plead. Guilty or not guilty. A not guilty plea puts everything in dispute and forces the state to prove its case. You may also give a statement explaining the basis of your plea, and your representative will advise on whether that helps or hurts.

3. The state opens its case. The prosecutor calls witnesses one at a time. Each gives evidence in chief, meaning they tell their story in answer to the prosecutor's questions. Documents, photographs and physical exhibits are handed in through witnesses.

4. Cross-examination. After each state witness, the defence asks questions. This is the heart of a criminal trial. It is where inconsistencies come out, where a version is put to the witness, and where most cases are actually decided.

5. The state closes its case. Everything the state intends to rely on must be in by this point.

6. The defence case. The accused may testify, may call witnesses, and may hand in documents. The accused may also do none of that. Choosing not to testify is a right, not an admission, although it is a decision to take with a legal representative and not alone.

7. Argument. Both sides address the court on what the evidence proves and does not prove.

8. Judgment. The court gives its verdict with reasons. If the state has not proved its case beyond reasonable doubt, the accused is acquitted.

9. Sentence. Only after a conviction. Both sides put evidence and argument on the appropriate sentence, and the court decides. Nothing about sentence is settled while guilt is still in issue.

A worked example

The names and facts here are illustrative only and are not a real case.

Naledi is charged in a magistrates' court after an incident at a taxi rank. She pleads not guilty. Her Legal Aid practitioner tells her three things at the outset: say nothing to anybody about the facts, attend every date, and bring the names and numbers of the two people who were standing next to her.

The state calls the complainant first. In chief, the complainant describes the incident confidently. In cross-examination, Naledi's representative works through the lighting, the distance, how long the complainant actually saw the person, and what the complainant told the police that night. The story does not collapse, but it develops soft edges.

The state calls the investigating officer next, and the docket statements are canvassed. The state closes its case.

Naledi then decides, on advice, to testify. She gives her version and is cross-examined by the prosecutor, which is uncomfortable and lasts longer than she expected. One of her two witnesses attends and confirms where she was standing. The other never came, because nobody had asked her early enough.

Both sides argue. The court gives judgment with reasons. The missing witness is the part Naledi thinks about afterwards, and it is the part that was entirely within her control months earlier.

What to do this week

1. Get a legal representative. If you cannot afford one, tell the court and phone Legal Aid South Africa.
2. Write your version down in full, dated, and give it only to your representative.
3. List every witness now, with full names and working phone numbers. Witnesses become impossible to find later.
4. Collect anything physical while it still exists: photographs, messages, receipts, medical records, a work roster showing where you were.
5. Say nothing about the facts to police, to friends, or on social media.
6. Do not contact the complainant or any state witness. It can cost you your bail and can lead to another charge.
7. Check your court date and arrive early. See what happens if you miss your court date.
8. Ask your representative what the state's case actually is, in plain words, so you can respond to it properly.
9. Ask for an interpreter in advance if you need one.

Documents to gather

• Your identity document
• The charge sheet and your case number
• Your bail receipt and your written bail conditions
• Your own dated written statement of what happened
• Names, addresses and phone numbers for every witness
• Photographs, messages, call records, receipts and any documents that fix a time or a place
• Medical records or a J88 medical form, where injuries are part of the case
• Proof of employment, proof of address and proof of dependants, which matter if you are convicted and sentence is argued
• Character references

A realistic timeline

First appearance. The matter is placed on the roll, bail is dealt with, and it is postponed. See what happens at your first court appearance.

Postponements. Expect several. Investigations get completed, dockets go missing, witnesses do not arrive, and forensic results take time.

Trial date. Often months after the first appearance. Court rolls are congested and this is normal.

The trial itself. Very few trials finish in one day. Part-heard matters, meaning trials that start and then continue on a later date, are ordinary.

Judgment. Sometimes the same day, sometimes reserved to a later date.

Sentence. After a conviction, often on a separate date so that reports can be obtained.

Appeal. If there is a conviction, an appeal or a review may be possible, and there are time limits. Ask about them immediately, not weeks later.

Common mistakes and what they cost

Talking about the facts. To the police, to a cellmate, to a friend, on WhatsApp. It is the most common self-inflicted wound in criminal cases.

Waiting to find witnesses. Numbers change, people move, memories fade. Get the list in the first week.

Missing a court date. A warrant of arrest usually follows, bail can be forfeited, and failing to appear is a separate offence.

Changing your version. A version that shifts between the police statement, the bail application and the witness box hands the prosecutor the case.

Deciding to testify on the day. Whether to testify is a strategic decision and it needs a proper conversation beforehand.

Bringing nothing to the sentencing stage. If there is a conviction, proof of employment, dependants and any restitution matters enormously and is usually gathered too late.

Assuming a withdrawal is coming. The decision to prosecute belongs to the National Prosecuting Authority, not to the complainant. See can charges be withdrawn if the complainant changes their mind.

Missing appeal deadlines. Time limits are real and they run from the date of the order.

Your rights and the state's powers, side by side

You have the right to be presumed innocent, to remain silent and not to testify, not to be compelled to give self-incriminating evidence, to be told the charge with enough detail to answer it, to a public trial before an ordinary court, to have your trial begin and conclude without unreasonable delay, to be present, to legal representation and to a legal practitioner at state expense where substantial injustice would otherwise result, to challenge and cross-examine the state's evidence, to lead your own evidence, to an interpreter, and to appeal or take a decision on review to a higher court. These sit in section 35 of the Constitution of the Republic of South Africa, 1996.

The state may decide what to charge, lead witnesses and exhibits, cross-examine you and your witnesses if you testify, subpoena witnesses to attend, oppose bail, and argue for a particular sentence after a conviction. What the state may not do is shift the burden of proof onto you, force you into the witness box, or ask a court to convict on anything less than proof beyond reasonable doubt.

If you cannot afford an attorney

Tell the court. Say out loud, on the record, that you want a lawyer and cannot afford one. Say it at the earliest appearance, not on the trial date.

Legal Aid South Africa on 0800 110 110 represents accused people in criminal matters, subject to a means test based on your income and household circumstances. It operates under the Legal Aid South Africa Act 39 of 2014, and practitioners are often based at the court itself. See Legal Aid and do I qualify for legal aid in a criminal case.

University law clinics give free advice and sometimes appear in criminal matters. Phone the law faculty of your nearest university.

The Independent Police Investigative Directorate deals with police misconduct, such as an assault during an arrest. That is a separate complaint and it does not stop your trial.

For private fees, see what a criminal matter costs. If the matter ends in a conviction, see how to clear your criminal record and the expungement eligibility calculator.

If violence is anywhere in the background, keep SAPS on 10111 and the GBV Command Centre on 0800 428 428 to hand.

Frequently asked questions

People ask most often whether they have to testify, and the answer is no. You may remain silent and the state must still prove its case. They ask what beyond reasonable doubt means, and the plain answer is that it is a high standard and not the same as being fairly sure. They ask how long a trial takes, and that depends on the court roll and the number of witnesses. They ask whether a case can end before trial, and it can, through a withdrawal, a diversion in appropriate cases, or a plea and sentence agreement. See how diversion works for first time offenders and what a plea and sentence agreement is. Appeal and review routes exist after a conviction, and they carry time limits.