Criminal

Nobody plans to read this page. You are here because somebody was arrested last night, because a summons arrived, because you want to lay a charge, or because a job application has just been stopped by a conviction from years ago. Criminal matters move on the court's timetable, not yours, and the first 48 hours matter more than any other part of the process. This page tells you what happens at each stage and which guide answers the question you actually have.

What this area of law covers

Criminal law has two halves. The first is what counts as a crime and what the punishment can be. The second, which is where almost every practical question lives, is procedure: how the police may arrest you, how long they may hold you, how bail works, what happens at each court appearance, how a trial runs, and what happens afterwards.

That procedure is set by the Criminal Procedure Act 51 of 1977. Sitting above it is the Constitution of the Republic of South Africa, 1996, which gives every arrested and accused person a set of rights that the police and the courts cannot bargain away: to remain silent, to be told why you are being held, to see a lawyer, to be brought before a court promptly, and to a fair trial. The National Prosecuting Authority decides whether to prosecute and what to charge, which is why the complainant does not control the case. Criminal records and their removal are dealt with by the Department of Justice and Constitutional Development and the Criminal Record Centre of the South African Police Service.

A criminal case is the state against a person. You are not suing anyone and nobody is suing you. That is why a complainant who changes their mind does not automatically end a prosecution, and why the state, not the victim, carries the case.

Where to start, by problem

• Someone has just been arrested. Read what are your rights when you are arrested in South Africa first. It is short and it is the most useful thing you can read tonight.
• The police are holding someone and no charge has been laid. Read how long can the police hold you without charging you.
• The police want to arrest without showing a warrant. Read can the police arrest you without a warrant.
• You need to get someone out. Read how to apply for bail in South Africa, and then check whether the charge falls into a harder bracket with the difference between Schedule 5 and Schedule 6 bail. That single question changes who has to prove what.
• The first court date is tomorrow. Read what happens at your first court appearance so you know what will and will not be decided.
• You cannot afford a lawyer. Read do I qualify for Legal Aid in a criminal case. Do this before you borrow money.
• You want to know how the case will run. Read how does a criminal trial work in South Africa.
• The prosecutor has offered a deal. Read what is a plea and sentence agreement before you agree to anything.
• It is a first offence, and often a young person. Read how does diversion work for first-time offenders. Diversion can end a matter without a conviction.
• You missed a court date. Read what happens if you miss your court date and act today, not next week.
• The complainant wants to drop it. Read can charges be withdrawn if the complainant changes their mind.
• You want to lay a charge. Read how to lay a criminal charge against someone.
• The case is over and you want the bail money back. Read can I get my bail money back.
• An old conviction is blocking work. Read how to clear your criminal record in South Africa.

The deadlines that catch people out

Forty-eight hours. An arrested person must be brought before a court within 48 hours of the arrest. If the 48 hours expire outside ordinary court hours or on a day that is not a court day, the period runs to the end of the next court day. This is the deadline everything else hangs off. Use the time to get documents together: proof of address, an employment letter, identity documents, and the details of somebody who can stand as surety.

The next court date. Every postponement produces a new date, and that date is not a suggestion. Missing it means a warrant for your arrest, the bail money can be forfeited to the state, and you may face a separate charge for failing to appear. If you genuinely cannot attend, send somebody to court to explain before the day passes.

Bail conditions from the moment they are granted. Reporting to a police station, staying away from a complainant, surrendering a passport: these bind immediately. Breaching one can get bail cancelled and put you back in custody.

Ten years for an expungement. In general, a criminal record can be expunged 10 years after the date of conviction, provided you have not been convicted again in that period and the sentence fell within the categories the law allows. Some records qualify sooner and some do not qualify at all. Apply too early and the application is simply refused, which wastes months.

Appeals and reviews. The period for asking for leave to appeal after a conviction or sentence is short and is set by the court rules. Ask the magistrate or the clerk of the court on the day, and write the date down before you leave the building.

What it costs, and what is free

Criminal defence is priced by the event: a bail application, a day in court, a plea negotiation. Nobody can quote you one number for the whole case because nobody yet knows how many days it will run. The ranges, and the two worked budgets, are on what does a criminal attorney cost.

Before you spend anything, check the free routes. Legal Aid South Africa is a statutory body, it applies a means test, and it covers criminal defence in most serious matters at no charge to you. Its number is 0800 110 110. Separately, tell the court that you want a lawyer and cannot afford one, and make sure it goes on the record, because the Constitution gives an accused the right to a legal practitioner at state expense where substantial injustice would otherwise result.

Laying a charge at a police station is free. So is an expungement application to the Department of Justice and Constitutional Development. University law clinics in most major centres take criminal work at no charge.

The mistakes that cost the most

• Making a statement to the police without a lawyer. You have the right to remain silent, and an explanation given in a police station at three in the morning is very difficult to walk back at trial.
• Signing anything you have not read. A warning statement, a consent to a search, an admission: all of them become evidence.
• Paying an "agent" or a middleman to fix a bail application. Bail is decided by a court on the record. Money handed to somebody in the corridor is money gone, and it can itself be a crime.
• Missing a court date. It converts a manageable case into a warrant, a fresh arrest and a second bail application, which costs far more than the taxi fare that was the original problem.
• Assuming you earn too much for Legal Aid. The means test thresholds change. Phoning to find out costs nothing.
• Pleading guilty to make it go away. A conviction stays on your record and follows you into every job application and visa form. Understand what you are accepting before you say the word.
• Spending the whole budget on bail. Bail matters, but a client with nothing left for the trial has bought the wrong thing.

The tools on this site that help here

• The expungement eligibility calculator works out the earliest date you can apply to have a record removed, and flags the situations where a record does not qualify.
• The expungement application checklist lists what to send to the Department of Justice, so a free application does not fail on a missing certificate.
• The Legal Aid page sets out who qualifies, what is covered and how to make contact.
• The court fees calculator is aimed at civil claims rather than prosecutions, but it is useful if the same incident has also left you with a claim for damages.

When you need an attorney

Get an attorney immediately if the charge falls under Schedule 5 or Schedule 6 of the Criminal Procedure Act, because in those matters the burden of showing why you should be released shifts onto you. Get one when the state opposes bail, when the matter is set down in the regional or High Court, or when the charge carries a minimum sentence. Get one when the state's case rests on an identification, a confession, a pointing out or cellphone evidence, because those are technical and are frequently challengeable. Get one when you are a juvenile, when you have a previous conviction that could increase the sentence, or when the prosecutor offers a plea and sentence agreement. And get one when you are a foreign national, because a conviction can affect your immigration status as well as your liberty.

If you cannot pay, that is not a reason to go without. It is a reason to phone Legal Aid and to tell the court on the record.

LawMatch is not a law firm. Everything here is general information about South African law, not legal advice on your case.