A defence lawyer represents a person accused of a crime, from the moment of arrest through to sentence and, where necessary, appeal. In South Africa the role is shaped by the Constitution and by the Criminal Procedure Act 51 of 1977, and it is governed by the professional conduct rules published by the Legal Practice Council. The work is not a single act in court; it is a sequence of duties that begins long before trial and continues after it.
Section 35 of the Constitution of the Republic of South Africa, 1996, guarantees every arrested, accused, and detained person the right to a fair trial, and within that right, the right to choose and to be represented by a legal practitioner, and to be informed of that right. A defence lawyer is the person who gives practical effect to that constitutional protection. This article explains, in plain terms, the role of a defence lawyer at each stage of a criminal matter.
This is general information and not legal advice. For guidance on a specific case, the Criminal Law team at Otrebski Attorneys is available to assist.
Advising the accused, before anything else
The first duty of a defence lawyer is to advise. An accused person is often frightened, uncertain of procedure, and at risk of saying or doing something that harms the case. The lawyer explains the charge, the likely process, the rights that attach at each stage, and the options realistically available. Good advice at this stage often matters more than anything that happens later in the trial.
- The right to remain silent. Section 35 of the Constitution protects an arrested person’s right to silence and the consequences of not remaining silent.
- The right to legal representation. An accused must be informed promptly of the right to a legal practitioner of their own choice.
- The right to be brought before a court without undue delay. The Criminal Procedure Act sets limits on how long an accused may be held before being charged or brought to court.
- The choice of plea. The lawyer advises on whether to plead guilty or not guilty, and on the implications of each.
Bail applications and pre-trial release
One of the most consequential early duties is the bail application. Bail is governed by section 60 of the Criminal Procedure Act 51 of 1977. The starting point is that an accused is entitled to be released on bail unless the interests of justice permit detention. The defence lawyer’s task is to place before the court the facts that show release to be in the interests of justice.
- Anticipatory bail. An application may be brought where an arrest is anticipated but has not yet occurred.
- Bail at the first appearance. For less serious matters, bail can often be dealt with by the court on the day of the first appearance.
- Formal or opposed bail. For serious matters, a formal application is brought, with affidavit evidence and, where required, oral evidence on the accused’s ties, fixed abode, and prior convictions.
- Bail appeals and reviews. A refusal of bail may be taken on review or appeal to a higher court.
Disclosure, investigation, and case preparation
Before a defence can be mounted, the lawyer must know what the State’s case is. The State is obliged to make disclosure of the docket and the evidence on which it intends to rely. Once disclosure is in hand, the defence lawyer works through the material to identify the issues, the weaknesses, and the points that will be in dispute at trial. Preparation, more than courtroom performance, is what usually decides the outcome.
- Reviewing the police docket. Statements of State witnesses, the charge sheet, and the investigating officer’s report are examined for consistency and for gaps.
- Assessing forensic evidence. Where the State relies on expert or scientific evidence, the defence assesses whether the foundation for it is properly laid.
- Taking instructions. The lawyer takes full instructions from the accused and reconciles them with the disclosed evidence.
- Instructing experts. Where a technical issue merits it, the defence may instruct its own expert.
The plea, and the start of the trial
The plea is the accused’s formal response to the charge. A plea of guilty may, in less serious matters, be dealt with under section 112 of the Criminal Procedure Act; a plea of not guilty proceeds to trial under section 115, where the presiding officer may question the accused to clarify the issues. The defence lawyer advises on the plea, manages the section 115 questioning, and helps to define the real issues the State must prove.
Cross-examination and the presentation of the defence case
At trial the State presents its evidence first. The defence has the right to cross-examine every State witness, and cross-examination is one of the most important duties of a defence lawyer. Its purpose is to test the State’s evidence, to expose inconsistency and doubt, and to put the accused’s version to each witness where that is required. After the State closes, the defence may lead its own witnesses and the accused.
- Putting the defence version. Where the accused’s version differs from a State witness’s account, that version must be put to the witness in cross-examination.
- Testing reliability. Observation, recollection, identification, and motive are all properly tested.
- Objecting to inadmissible evidence. The defence objects to hearsay, improperly obtained evidence, and leading questions where appropriate.
- Leading the defence case. The accused is not obliged to testify; the decision whether to do so is taken on advice.
Because the burden of proof rests on the State throughout, a defence does not have to prove the accused’s innocence. It is often enough to raise a reasonable doubt about a single element of the offence. Argument at the close of evidence is where the defence ties the doubt together.
Sentence, plea and sentence negotiation
Where conviction follows, or where the accused elects to plead guilty, the focus shifts to sentence. The defence lawyer leads and presents evidence in mitigation, including the accused’s personal circumstances, prospects of rehabilitation, and any factors that reduce moral blameworthiness. In appropriate matters the defence may also engage the State on a plea and sentence agreement under section 105A of the Criminal Procedure Act, which can avoid the risk and cost of a full trial.
Loyalty, confidentiality, and the conduct rules
Underlying every duty above are two professional obligations that define the role. The first is the duty of loyalty: a defence lawyer must act in the client’s interests, free of any conflict, and must not accept instructions where a conflict exists. The second is the duty of confidentiality: communications between lawyer and client are privileged, and the lawyer may not disclose them except in the narrow circumstances the law allows.
These duties are codified in the Code of Conduct published by the Legal Practice Council under the Legal Practice Act 28 of 2014, which binds all attorneys, advocates, and candidate legal practitioners in South Africa. The duty of loyalty is also reinforced by the Constitution: the right to legal representation of one’s own choosing under section 35 has little substance if the lawyer owes a competing duty to someone else. Together these rules are what allow the accused to speak frankly to a lawyer, and what allow the lawyer to mount a defence without fear or favour.
What a defence lawyer does not do
It is as important to understand the limits of the role as its scope. A defence lawyer does not guarantee an outcome, does not suborn perjury, and does not assist the accused to mislead the court. The duty to the client is real, but it operates within the duty to the court and to the administration of justice. A lawyer who steps outside those limits exposes both the client and themselves to sanction.
Frequently Asked Questions
What does a defence lawyer do in South Africa?
A defence lawyer represents a person accused of a crime. The duties include advising the accused on rights and options, bringing bail applications under section 60 of the Criminal Procedure Act 51 of 1977, taking disclosure from the State and preparing the case, advising on and entering a plea, cross-examining State witnesses at trial, leading the defence case, arguing the law and the facts, and presenting evidence in mitigation of sentence. The role is shaped by section 35 of the Constitution and the conduct rules of the Legal Practice Council.
What is the right to legal representation in South Africa?
Section 35 of the Constitution of the Republic of South Africa, 1996, gives every arrested and accused person the right to a fair trial, which includes the right to be represented by a legal practitioner of their own choice, and to be informed of that right promptly. An accused who cannot afford a lawyer may be provided with a legal practitioner at State expense in certain circumstances, and may conduct their own defence.
When should I contact a defence lawyer?
As soon as you are arrested, charged, or even invited to make a statement to the police. A defence lawyer can advise on the right to remain silent, attend the interrogation or pointing-out, and bring a bail application without delay. Engaging a lawyer early prevents avoidable prejudice to the case.
Is what I tell my defence lawyer confidential?
Yes. Communications between a legal practitioner and client are privileged, and the Legal Practice Council’s Code of Conduct, made under the Legal Practice Act 28 of 2014, requires legal practitioners to maintain client confidentiality subject only to narrow exceptions recognised in law. The lawyer may not disclose those communications without the client’s consent.
Can a defence lawyer guarantee a win?
No. No lawyer can guarantee an outcome. A defence lawyer’s value lies in identifying the real issues in the State’s case, testing the evidence in cross-examination, advising frankly on the prospects of acquittal, and on the alternatives of a plea or a section 105A plea and sentence agreement under the Criminal Procedure Act 51 of 1977.
Do defence lawyers only handle criminal cases?
The term defence lawyer most often refers to a criminal defence practitioner, but the same skills of representation, cross-examination, and statutory interpretation are used in any matter where a person’s rights or liabilities are disputed. At Otrebski Attorneys, criminal defence is handled by the Criminal Law department.
Get help with a criminal law matter. Otrebski Attorneys’ Criminal Law team, working from a single Sandton office, advises on bail, plea, trial, and sentence under the Criminal Procedure Act and the Constitution. As a 100% women-led firm, with a 5-star Google rating across 12 reviews, a Level 4 B-BBEE rating, and Director Nastasja Otrebski at the helm, we bring disciplined, evidence-based judgement to every defence.
Disclaimer. This article is general information about the role and duties of a defence lawyer in South Africa and is not legal advice. It refers to the Constitution of the Republic of South Africa, 1996, the Criminal Procedure Act 51 of 1977, and the Legal Practice Council’s Code of Conduct made under the Legal Practice Act 28 of 2014, all of which may be amended. For guidance on a specific matter, confirm current requirements with the South African Police Service, the National Prosecuting Authority, the relevant magistrate’s court, or a qualified criminal law attorney.