Upon being accused of committing a crime, when the Police request to question you, or when members of the SAPS conduct themselves in an irregular or unlawful manner. You certainly have the right to defend yourself without an attorney, but this is not advisable.

If you have been arrested your attorney is capable of:

• securing your release from custody as soon as possible;
• Attempt to get the charges against you dropped or reduced;
• Interview police, interested parties, and any possible witnesses to expose any lies or exaggeration;
• Ensure that no evidence was obtained against you illegally;
• Attend an identity-parade to ensure it is lawful,
• Conduct pre-trial investigations;
• Employ experts to strengthen your defence;
• Appear on your behalf at trial or instruct an advocate to appear on your behalf at trial;
• Take all the necessary steps to make sure you face the minimum possible penalties.

It may surprise you that approximately 64% of law firms in South Africa do not practise criminal law. According to a National Survey of the Attorney’s Profession commissioned by The Law Society of South Africa, only 35,6 % of Attorney Firms in South Africa practise criminal law. Wikipedia, states that criminal defence work can be intimidating to some lawyers and that criminal defence lawyers tend to be a special breed of lawyers.

You have the right to remain silent and not to implicate yourself. It is not advisable to say anything to the police let alone sign a confession. Your attorney will make representations to resolve any misunderstandings or prove your innocence. Do not sign anything or make a statement with the exception of your written explanation of rights which is the document normally presented to all arrested persons.

The police are entitled to:

• take your finger-prints, palm-prints, foot-prints, photograph, note any distinguishing marks on your body, or take you to a registered nurse or doctor to have your blood drawn;
• subject you to an identity parade and at this stage you should ensure your legal representative is present.

Your attorney can arrange with the investigating officer to have you released on bail if you are charged with the following crimes:

• Common assault, Theft (such as shoplifting) with a value below R2500
• Crimen iniuria (criminal defamation)
• Possession of a small amount of marijuana
• Driving under the influence of Intoxicating liquor, Reckless or negligent driving.

A Public Prosecutor may release an accused when charged with the following crimes:

• Public violence.
• Culpable homicide.
• Bestiality
• Assault with intent to cause grievous bodily harm
• Arson
• Housebreaking, with intent to commit an offence.
• Malicious injury to property.
• Robbery (non-aggravated) provided the items involved have a value of less than R20 000
• Theft, provided the amount involved does not exceed R20 000
• Illegal possession of dependence-producing drugs.
• extortion, fraud, forgery or uttering provided the value involved does not exceed R20 000

Only a court has the authority to release you on bail once a formal bail application has been conducted in regard to the following crimes:

• Murder
• Rape
• Any sexual offence against a child or a person who is mentally disabled
• Trafficking in persons for sexual purposes
• Armed Robbery
• Breaking or entering any premises
• Theft, fraud, forgery, receiving stolen property knowing it to have been stolen in the event the value involved in the offence exceeds R20 000
• Illegal dealing in or possession of precious metals or stones
• Kidnapping
• Intimidation

Any arrested person must as soon as possible be brought to a police station and as soon as possible thereafter must be informed of his right to apply for bail. The arrested person must be brought before a lower court within 48 hours after arrest. If the period of 48 hours expires outside ordinary court hours or on a day the court does not sit, the arrested person must be brought before a lower court not later than the end of the next court day.

Notwithstanding the forty-eight hour period, the police are not obliged to detain an arrested person for the full 48 hours. He is entitled to arrange a first court appearance in order to bring a bail application. The police are obliged to provide assistance in this respect.

During your first appearance at court, the court will enquire as to whether you elect to

• Conduct your own defence
• Require the service of a legal aid attorney
• Or whether you have secured the services of a private attorney

It is not advisable to conduct your own defence and in the event you earn above the means test set by the Legal Aid Board, you will not qualify for legal aid. Legal Aid does not undertake after-hour work such as an after-hour bail applications.

How much does a private attorney charge?

Attorneys have different rates depending on their experience, expertise and complexity of the matter. You need to come to an agreement regarding fees before the attorney starts the work. Most attorneys will request that you pay a deposit prior to doing any legal work on your behalf. Fees exclude any disbursements that an attorney may incur on your behalf and are as such additional charges.

Fees are usually structured in the following manner:

• Hourly rate – an hourly charge irrespective of the type of work done.
• Day rate – when a specific fee is charged for your bail application, every postponement or trial fee irrespective of the number of hours spend waiting at court for your case to be heard.
• Global Fee – the option of a single fee for finalizing your entire matter. This type of structure generally excludes an after-hour or court bail application or appeal processes.

This is generally the case however take note of the following exceptions:

• You commit or attempt to commit a crime in the presence of the Police;
• The police officer has a reasonable suspicion that you have committed a serious offence such as murder, public violence, robbery, rape, housebreaking and arson;
• You intentionally obstruct a police officer in the execution of his duty;
• You have escaped or attempted to escape from lawful custody;
• You are found in possession of suspected stolen property.