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If you or someone close to you has been arrested or charged with a crime, the first days matter. This guide explains your rights on arrest, how bail works, what happens at trial and on appeal, and how a criminal record can later be expunged.
Last reviewed 17 October 2026 by the CallMyLawyer editorial team. How we research.
Section 35 of the Constitution sets out the rights of arrested, detained and accused people. If you are arrested, you have the right to remain silent and must be told promptly about that right and the consequences of giving up your silence. You cannot be forced to make a confession or admission that could be used against you.
You must be brought before a court as soon as reasonably possible, and not later than 48 hours after arrest. If the 48 hours end outside ordinary court hours or on a day that is not a court day, the deadline moves to the end of the next court day. At that first appearance you must be charged, told why you are still being held, or released.
You have the right to choose and consult a lawyer and to be told of this right promptly. If you cannot afford one and substantial injustice would otherwise result, the state must provide a lawyer at its expense. In practice this is done through Legal Aid South Africa, which can be reached on 0800 110 110.
Write down the name of the police station, the case number and the names of the officers if you can. A lawyer or family member will need this information to find you and to follow up.
Bail is release from custody while the case continues, usually on payment of an amount of money and on conditions such as reporting to a police station or not contacting witnesses. It is not a finding of guilt or innocence.
For less serious offences, the police may grant bail before your first court appearance under section 59 of the Criminal Procedure Act 51 of 1977. For other offences, bail is decided by a court.
Section 60(4) of the Criminal Procedure Act lists the grounds on which a court may find that release is not in the interests of justice. These include a likelihood that the accused will endanger the public or a specific person, try to evade trial, influence or intimidate witnesses, destroy evidence, or undermine the justice system.
For the most serious offences, the burden shifts to the accused. For Schedule 6 offences, such as certain types of murder and rape, section 60(11)(a) says you must show exceptional circumstances that justify release. For Schedule 5 offences, section 60(11)(b) says you must show that release is in the interests of justice. This is why preparing a bail application, including affidavits and proof of address and work, is often the most urgent job for a criminal lawyer.
If bail is refused, you can bring a new application on new facts, or appeal the decision to the High Court.
Step 1: First appearance in court, where the charges are put and bail is dealt with or postponed.
Step 2: Postponements while the police finish the investigation. You or your lawyer can ask for the docket contents once the state is ready, so that you know the evidence.
Step 3: The prosecutor may decide to withdraw the charges, offer diversion in some cases, or continue to trial.
Step 4: Plea. You plead guilty or not guilty. A plea and sentence agreement under section 105A of the Criminal Procedure Act may be negotiated through a lawyer.
Step 5: Trial. The state must prove guilt beyond reasonable doubt. Your lawyer can cross-examine state witnesses and present a defence, and you have the right not to testify.
Step 6: Judgment and, if convicted, sentencing, where the court hears evidence about your personal circumstances. Minimum sentences apply to some serious offences.
For some minor offences, the police may offer an admission of guilt fine. Paying it ends the case, but it is a conviction and it can create a criminal record. Many people pay without realising this.
Before paying any admission of guilt fine, ask whether it will result in a criminal record, and consider getting legal advice. A criminal record can affect jobs, travel visas and professional registrations.
If you have already paid an admission of guilt fine without understanding its effect, ask a lawyer whether the conviction can be set aside. Courts have done this in some cases where the person was not properly told what paying the fine meant.
At the police station, a lawyer can advise you on whether to make a statement, check that your rights are respected and start gathering what is needed for bail, such as proof of address, employment and family responsibilities.
At the bail stage, the lawyer prepares an affidavit or presents evidence, deals with the prosecutor's objections and argues for conditions that you can actually meet. A bail amount that is set too high can keep a person in custody for months.
Before trial, the lawyer studies the docket, interviews witnesses, looks for weaknesses in the identification evidence or the way evidence was collected, and may negotiate with the prosecutor about the charges or a plea agreement.
During the trial and sentencing, the lawyer cross-examines witnesses, presents the defence and puts information about your personal circumstances before the court, such as dependants, work and remorse, which can affect the sentence.
Ask any lawyer you consult how many similar matters they have handled in that court, what the next court date is, and what they need from you before then.
If you were convicted or sentenced in a magistrate's court, you generally need leave to appeal. Section 309B of the Criminal Procedure Act says the application must be made within 14 days after sentence, or within a longer period the court allows on application if there is good cause.
If leave is refused, you can petition the High Court. An appeal is not a new trial: the higher court looks at whether the magistrate made mistakes on the facts or the law, or imposed a sentence that is clearly wrong.
Apart from an appeal, a High Court can review proceedings that were seriously irregular, for example where an accused was denied the right to a lawyer.
Some criminal records can be expunged by the Department of Justice and Constitutional Development under the Criminal Procedure Act. At least 10 years must have passed since the conviction, and you must not have been sentenced to direct imprisonment in that period.
The sentence for the original conviction must be one of the qualifying types, such as a fine of not more than R20,000, imprisonment with the option of a fine, a fully suspended sentence, correctional supervision, or a postponed sentence or caution and discharge. Special rules apply to sexual offences against children or people with mental disabilities.
The application is free. You submit form J744 with a clearance certificate from the SAPS Criminal Record Centre, and the department says processing takes about 60 working days once all documents are received. The department warns that applications sent through agents are not given priority.
Private criminal defence lawyers usually charge either an hourly rate or a fixed fee per stage, for example a fee for the bail application and a separate fee for each trial day. Contingency fees are not used in criminal defence. Ask for a written estimate that sets out what is included and how postponements are charged. If you cannot afford a lawyer, you can apply to Legal Aid South Africa, which uses a means test, and the court can refer you to it.
Section 35 of the Constitution says you must appear in court as soon as reasonably possible and not later than 48 hours after arrest. If that period ends outside court hours, it extends to the end of the next court day. At that appearance you must be charged, told why you are being held, or released.
Police bail can be granted at the police station before your first court appearance for less serious offences under section 59 of the Criminal Procedure Act. For more serious offences, only a court can decide on bail, after a bail application.
It can. Paying an admission of guilt fine is treated as a conviction for many offences. Ask before you pay, and consider speaking to a lawyer if a record could affect your work or travel.
Yes, if you qualify. Legal Aid South Africa provides lawyers to people who meet its means test, and the Constitution gives a right to a state-funded lawyer where substantial injustice would otherwise result. You can call Legal Aid on 0800 110 110 or ask the court for a referral.
For a magistrate's court case, you must apply for leave to appeal within 14 days after sentence under section 309B of the Criminal Procedure Act. The court can allow a longer period on application if there is good cause.
If at least 10 years have passed and your sentence qualifies, you can apply to the Department of Justice for expungement using form J744 and a police clearance certificate. The service is free and takes about 60 working days once complete.
This guide explains how the law generally works and is not legal advice. Speak to an attorney about your own matter.
