What Does a Criminal Lawyer Do?

A criminal lawyer represents an accused person in criminal proceedings, defending their legal rights — governed by the Criminal Procedure Act 51 of 1977 — from the moment of arrest through trial and appeal. Their role spans multiple stages: securing bail, preparing a robust defence, negotiating with prosecutors, presenting evidence at trial, and pursuing appellate remedies when necessary. Criminal lawyers are distinct from prosecutors (who represent the State) and civil litigation lawyers who handle non-criminal disputes. If you cannot afford a criminal lawyer, you may qualify for free legal aid through Legal Aid South Africa.

Initial Representation & Bail Applications

When someone is arrested, a criminal lawyer's first duty is to attend the police station and instruct the accused on their rights. Under the Criminal Procedure Act 51 of 1977, section 50, an arrested person has the right to legal representation immediately. At the bail hearing (conducted within 48 hours), the criminal lawyer challenges the State's case for detention, arguing that bail conditions are suitable or that detention is unjustified. The lawyer must understand the Judicial Matters Second Amendment Act which sets clear grounds for bail refusal—some offences carry a presumption against bail, requiring the State to prove why detention is necessary.

Trial Preparation & Case Strategy

Before trial, criminal lawyers undertake extensive preparation. They review docket documents, interview witnesses, examine evidence for admissibility issues, and develop a coherent defence strategy. This might involve challenging whether police followed proper procedure under the Criminal Procedure Act, identifying Charter violations (Constitution of the Republic of South Africa, 1996), or exposing weaknesses in the State's case. Many criminal lawyers also prepare for pretrial motions—for example, applications to exclude unlawfully obtained evidence under section 217 of the Criminal Procedure Act or applications for special pleas (such as autrefois acquit).

Plea Negotiations & Prosecution

Criminal lawyers often engage with prosecutors to negotiate guilty pleas, sentencing agreements, or withdrawal of charges. These negotiations require expert knowledge of sentencing law, victim impact considerations, and the prosecutor's discretion. A skilled criminal lawyer might secure a plea to a lesser charge, negotiate a prison sentence below minimum, or arrange diversion programmes (especially for first-time offenders or drug-related offences under the National Drug Master Plan).

Trial Advocacy

At trial, the criminal lawyer represents the accused in magistrate's courts (for less serious offences), the High Court (for serious crimes like murder, rape, and robbery), or the Supreme Court of Appeal (for appeals). They cross-examine State witnesses to expose inconsistencies, introduce defence evidence, and make closing arguments emphasizing reasonable doubt. The lawyer must be familiar with the rules of evidence, witness competency, and the burden of proof—which remains "beyond a reasonable doubt" throughout criminal proceedings.

Appellate Work

If convicted, a criminal lawyer advises on grounds of appeal and pursues remedies before the Supreme Court of Appeal or even the Constitutional Court, where constitutional issues arise (such as rights to a fair trial under section 35 of the Constitution).

Criminal Lawyer vs. Advocate

In South Africa, there is an important distinction between attorneys and advocates in criminal law. A criminal attorney handles day-to-day client interaction, investigation, and lower court appearances. For serious High Court matters, attorneys often brief a criminal advocate (a specialist litigator with rights of audience in the High Court). Senior advocates, known as Senior Counsel (SC), command the highest fees but bring extensive courtroom experience. Understanding this distinction helps when choosing representation — see how much criminal lawyers earn for fee expectations at different levels.

Types of Cases Criminal Lawyers Handle

Criminal lawyers in South Africa handle a wide range of matters governed by the Criminal Procedure Act 51 of 1977:

Violent crimes: murder, attempted murder, assault with intent to cause grievous bodily harm, robbery with aggravating circumstances
Sexual offences: rape, sexual assault, statutory sexual offences under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Property crimes: theft, housebreaking, fraud, forgery, commercial crime
Drug offences: possession, dealing, and manufacturing under the Drugs and Drug Trafficking Act 140 of 1992
White-collar crime: corruption, money laundering under the Prevention of Organised Crime Act 121 of 1998 (POCA), tax evasion
Traffic offences: culpable homicide, reckless driving, driving under the influence

The complexity and sentencing severity vary dramatically across these categories, which is why specialisation matters.

Key Legislation

Criminal Procedure Act 51 of 1977: governs criminal investigations, arrest, bail, trial procedure, and appeals
Constitution of the Republic of South Africa (1996): sections 35 (fair trial rights) and 209 (rights of arrested persons)
Judicial Matters Second Amendment Act: sets bail eligibility and presumptions
National Prosecuting Authority Act 32 of 1998: defines the State's prosecution role and the accused's rights

Common Mistakes

Accused persons sometimes try to conduct their own defence, believing they'll save money. This rarely succeeds; criminal law is highly technical, and procedural errors can be fatal. Another common mistake is delaying legal instruction until trial—early advice on bail and disclosure can fundamentally shift the case's trajectory. Some accused also discuss their case with cellmates or on social media, inadvertently creating evidence against themselves.

When to Consult an Attorney

Contact a criminal lawyer immediately upon arrest, before any police questioning, and certainly before appearing in court. If facing a serious charge (murder, rape, assault with bodily harm, fraud), a specialist criminal advocate is essential. Even for minor charges, early legal advice prevents costly procedural mistakes.

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Disclaimer: This answer is for informational purposes only and does not constitute legal advice. About the Author: This answer was prepared by the Justibly Legal Research Team, reviewed for accuracy by practising attorneys admitted to the High Court of South Africa. Verify attorney credentials on the LPC register.

Last updated: April 2026