What happens if you miss your court date?

If you miss a court date, a court will usually issue a warrant of arrest for you. Failing to appear is also generally a separate offence, which means you can end up facing a second charge on top of the one you already had. If you were out on bail, that money can be forfeited to the state.

The way back is simple to describe and uncomfortable to do. Go to the court that issued the warrant as soon as you possibly can, and take an affidavit explaining why you were not there. Do not wait to be found. Every week that passes makes the explanation weaker and makes the arrest more likely to happen at the worst possible moment.

Attendance at court is a condition of being out. The rules sit in the Criminal Procedure Act 51 of 1977, and your fair trial rights, including the right to legal representation, sit in section 35 of the Constitution of the Republic of South Africa, 1996. If you need help now, Legal Aid South Africa is on 0800 110 110.

What actually happens when your name is called

1. Your matter is called and you are not there. The prosecutor tells the court you are absent.

2. The court asks whether there is an explanation. If your legal representative is present and has a reason, they will put it. If nobody says anything, there is no explanation on the record.

3. A warrant of arrest is usually issued. Sometimes a court holds a warrant over for a short period, which means it is authorised but not yet acted on, to give you a chance to appear. Do not gamble on that happening.

4. The bail money is put at risk. The court can start the process that leads to your bail being forfeited to the state.

5. A separate charge follows. Failing to appear is generally an offence in its own right, and it is a bad look at every later stage of the case.

6. The warrant sits there. It does not expire because you have been quiet. It can surface at a roadblock, at a border post, during an unrelated police stop, or on any day the police decide to execute it.

A worked example

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

Sipho is out on bail and has a court date on a Thursday. On the Tuesday he is admitted to hospital. He is discharged on the Friday and by then his court date has passed. He does nothing for a month, partly because he is frightened and partly because he assumes the hospital record will speak for itself.

That month is the mistake, not the hospital stay. When he finally goes back to the court, he takes the discharge summary, a letter from the hospital and an affidavit setting out the dates. His explanation for the Thursday is strong. His explanation for the following four weeks is weak, and that is the part the court asks about.

Contrast that with a version where Sipho asks a family member to phone the court on the Wednesday, and where he goes to the court on the Monday after his discharge with the same documents. Same illness, same charge, completely different impression.

The point is not that a court forgives illness. It is that a court is assessing whether you take the case seriously, and speed is the clearest evidence of that.

In the first 48 hours after a missed date

1. Do not hide. A warrant does not expire because you avoided it.
2. Phone the court or ask somebody to phone on your behalf and find out what happened in your matter.
3. Tell your legal representative immediately. If you have Legal Aid, phone the office at the court.
4. Write down exactly why you were absent, with dates, while you still remember.
5. Collect the proof now. A hospital record, a death certificate, a police report about a hijacking, a letter from an employer, a bus ticket. Proof beats narrative.
6. Prepare an affidavit. You can have one commissioned free of charge at most police stations. It should say who you are, your case number, the date you missed, why, and what you did about it.
7. Go to the court that issued the warrant. Not a different court. Take somebody with you.
8. Take your identity document and your bail receipt.
9. Do not contact the complainant or any witness. It will look like interference.
10. Expect to be taken into custody while the matter is dealt with. Plan for that possibility, including who looks after your children and who tells your employer.

Documents to gather

• Your identity document
• Your case number, and the name and address of the court
• Your bail receipt and a copy of your bail conditions
• Proof of the reason you were absent: hospital records, a doctor's letter, a death certificate, a police case number, a letter from an employer, travel documents
• An affidavit setting out the explanation, commissioned at a police station
• Proof of address and proof of employment, because if bail has to be revisited the court will want them
• The contact details of anybody who can confirm your explanation

A realistic timeline

The day itself. The matter is called, you are absent, and a warrant is usually issued.

Days one to seven. This is the window that matters most. Going in voluntarily within days, with proof, is the strongest position you will ever be in on this issue.

Weeks and months. The warrant remains live. It can be executed at any time and usually at an inconvenient one.

When you go in. Expect a full court day. You may be taken into custody while the warrant is dealt with, and a fresh bail application may be needed.

Afterwards. The original case continues, now with the failure to appear alongside it. That extra charge does not disappear because you eventually came in, although coming in voluntarily is a fact in your favour.

Common mistakes and what they cost

Waiting. The single most damaging thing you can do. A missed Thursday is explainable. Six missed months is a pattern.

Assuming somebody else told the court. Your attorney may not have been able to reach you either. Confirm it yourself.

Going to the wrong court. Go to the court that issued the warrant.

Going with no proof. A court hears explanations all day. Documents are what separate yours.

Contacting the complainant to fix things. It reads as interference with a witness and it can cost you your bail.

Forgetting the money. Bail can be forfeited when an accused absconds. Anybody who stood surety for you carries that loss with you. See can I get my bail money back.

Confusing this with a traffic warrant. A warrant on an unpaid traffic fine is a different process. Do not treat advice about one as advice about the other.

Missing the next date too. Whatever else you do, be early for the following appearance.

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

You have the right to be brought before a court as soon as reasonably possible after an arrest, to be told the reason for your detention, to remain silent, to legal representation and to a legal practitioner at state expense where substantial injustice would otherwise result, to apply for bail, to place an explanation before the court, and to an interpreter. These sit in section 35 of the Constitution of the Republic of South Africa, 1996. You also have the right to have your explanation properly considered rather than dismissed because you were late in giving it.

The state may issue and execute a warrant of arrest for your failure to appear, arrest you on that warrant, charge you separately with failing to appear, apply for your bail to be forfeited to the state, oppose any new bail application on the basis that you have already shown you may not attend, and ask for stricter conditions if you are released again. What the state may not do is treat your absence as proof of guilt on the original charge. Those are two separate questions.

If you cannot afford an attorney

Tell the court. Say out loud, on the record, that you want a lawyer and cannot afford one, especially when a fresh bail application is on the table.

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 can help you draft an affidavit.

A police station will commission an affidavit for you free of charge.

The Independent Police Investigative Directorate deals with police misconduct, which is separate from your warrant.

For private fees, see what a criminal matter costs. For how the case itself will run once you are back on track, see how a criminal trial works.

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

The question people ask first is whether a warrant expires. It does not simply lapse because time has passed. The second question is whether they will be arrested if they walk into the court, and the honest answer is that you may well be taken into custody while the warrant is dealt with, which is precisely why you should go with an affidavit, proof and somebody who can arrange bail. People ask whether a good reason cancels the failure to appear charge, and the answer is that a court will consider the explanation but the charge is a separate matter. They ask whether bail money is automatically lost, and the answer is that it is at risk once an accused absconds. They ask whether they can just phone in, and the answer is that a phone call is useful but it is not a substitute for appearing.