What Does a Criminal Defense Lawyer Do? | A Detailed Overview of Their Role

A criminal defence lawyer in South Africa represents the accused at every stage of a criminal matter — from arrest and first appearance in the magistrate’s court, through bail applications, plea, trial, and sentencing, to any appeal — under the Criminal Procedure Act 51 of 1977. The role is grounded in the constitutional right to representation under section 35 of the Constitution and is filled by an attorney admitted by the Legal Practice Council under the Legal Practice Act 28 of 2014, or an advocate briefed through an attorney for trial work. Burger Huyser Attorneys’ criminal law practice handles bail applications (including after-hours for Centurion and broader Gauteng), criminal defence from first appearance through trial, assault matters, and appeals.

The Statutory Role: What the Law Actually Authorises

A criminal defence lawyer is a Legal Practice Council–admitted attorney (or an advocate briefed by one) who represents the accused in criminal proceedings under the Criminal Procedure Act 51 of 1977 (the CPA). The right to representation is constitutionally protected under section 35 of the Constitution — every accused has the right to a legal representative of their choice, and the state must provide one at state expense where substantial injustice would otherwise result. The role is structurally distinct from the prosecutor’s: the prosecutor represents the state and owes a duty to the public interest; the defence lawyer owes a duty to the client and tests the state’s case.

The Legal Practice Act 28 of 2014 governs admission to practise, the Legal Practice Council’s regulatory role, and the disciplinary framework for attorneys and advocates. Burger Huyser Attorneys is admitted at the LPC under the Legal Practice Act 28 of 2014 and its standing can be verified against the LPC’s public register.

The Stages of Representation (How the Role Plays Out)

The role runs across the entire arc of a criminal matter — from the moment of arrest to the conclusion of any appeal.

Stage	Governing Provision	Defence Lawyer’s Role
Pre-arrest and arrest	Section 35, Constitution	Advise family, attend police interactions, and warn on the right to remain silent before any statement is made.
First appearance	Section 50, CPA (48 hours; 24 hours for Schedule 6)	Appear in the magistrate’s court, confirm the charges, and protect procedural rights.
Bail application	Section 60, CPA; Schedules 5 and 6	Apply for bail at the first opportunity; manage stricter bail requirements (accused must lead evidence on a Schedule 6 application).
Disclosure and plea preparation	CPA disclosure provisions	Secure disclosure, consult on plea options, and prepare for trial.
Trial	CPA plea-and-trial procedure	Cross-examine state witnesses, argue points of law, and represent the accused in magistrate’s, regional, or High Court.
Sentencing	CPA sentencing procedure	Represent in mitigation of sentence and argue against minimum-sentence applications where appropriate.
Appeals and review	CPA; Superior Courts Act 10 of 2013	Launch appeal to the Full Court of the High Court division or the Supreme Court of Appeal, where grounds exist.

Burger Huyser Attorneys’ criminal law practice runs from the head office in Linden, Randburg, with the after-hours bail line (069 522 7696) for Centurion and broader Gauteng. Clinton Shaw, specialist consultant in criminal law, focuses on assault matters.

What the Defence Lawyer Does Day to Day

Behind the courtroom appearances, the work is investigative and document-driven:

• Meeting the accused in person to take instructions — a privileged communication.
• Reviewing the charge sheet, the police docket, and the prosecutor’s disclosure.
• Identifying witnesses and gathering supporting evidence.
• Drafting applications, affidavits, and heads of argument.
• Appearing in court on every appearance date — bail hearing, plea, trial, sentence.
• Liaising with the LPC-admitted advocate briefed for High Court trial.

Types of Criminal Lawyers in South Africa

“Criminal lawyer” covers several distinct categories of practitioner:

Type	Admission	Right of Audience	Typical Role
Attorney (general legal practitioner)	Legal Practice Council under the Legal Practice Act 28 of 2014	Magistrate’s and regional court	First point of contact; runs bail, plea, and trial preparation; briefs an advocate for High Court trial work.
Advocate (specialist)	Provincial Bar and the LPC’s roll of advocates	All courts — magistrate’s, regional, High Court, SCA, Constitutional Court	Taken on brief by an attorney for trial work in the regional or High Court.
State prosecutor (NPA)	NPA appointment	Courts in which the NPA prosecutes	Represents the state — the opposing party, not the accused.
Legal Aid SA practitioner	Legal Aid SA with LPC-admitted attorneys and advocates	Per attorney/advocate admission	State-funded defence for qualifying applicants where substantial injustice would otherwise result.

Within private practice, criminal defence work is sub-divided by offence type — sexual offences, assault and DUI, drug cases, Schedule 5 and 6 serious offences, white-collar and commercial crime, and dedicated bail hearings.

When You Need a Criminal Defence Lawyer

The urgency rises sharply with the seriousness of the charge:

• Any criminal charge — summary, regional, or High Court, from the moment of arrest.
• Schedule 5 or 6 offences — murder, rape, armed robbery, aggravated robbery, drug trafficking. Stricter bail requirements and heavier sentences apply.
• After-hours arrests — outside ordinary court hours, where an after-hours bail line is the only practical route to representation.
• Police investigations — consult before any statement. The right to remain silent under section 35 is a real protection, but only if exercised before any statement is given.
• Matters where the accused’s version conflicts with the police version — early advice protects against an unguarded statement being used at trial.

Burger Huyser Attorneys operates an after-hours bail line (069 522 7696) for urgent out-of-hours bail applications across Gauteng. Day-time instructions are handled through the Linden, Randburg head office (011 888 0246) and the Centurion branch (012 644 4990).

What the Defence Lawyer Cannot Do

The role carries real limits, and a candid practitioner states them up front:

• Cannot guarantee an outcome. Every case turns on its own facts and the evidence placed before the court.
• Cannot “fix” the case. The role is to test the state’s case lawfully, not to negotiate informal outcomes.
• Cannot represent without proper instructions. The attorney-client relationship requires the client’s authority to act.
• Cannot continue once the client has terminated the relationship, subject to the Legal Practice Council’s Code of Conduct on withdrawal from a matter.

Frequently Asked Questions

What is the difference between a criminal defence lawyer and a prosecutor?

A criminal defence lawyer represents the accused and owes a duty to the client; a prosecutor represents the state and owes a duty to the public interest. The roles are adversarial — the defence lawyer tests the state’s case through cross-examination, while the prosecutor presents the state’s evidence.

How quickly must a criminal defence lawyer see a client after arrest?

Under section 50 of the Criminal Procedure Act 51 of 1977, the accused must be brought before the magistrate’s court within 48 hours of arrest (24 hours for Schedule 6 offences). Defence lawyers commonly advise before that first appearance, particularly where bail or the statement decision is at stake.

When is a defence lawyer required?

Section 35 of the Constitution guarantees every accused the right to a legal representative of their choice, and the state must provide one at state expense where substantial injustice would otherwise result. Practically, a defence lawyer is essential for any Schedule 5 or 6 offence, any matter with a real prospect of imprisonment, and any matter where the accused’s version conflicts with the police version.

Can a defence lawyer refuse a case?

Yes — an attorney may decline instructions for legitimate reasons (workload, conflict of interest, lack of expertise). The Legal Practice Council’s Code of Conduct governs withdrawal, and Legal Aid South Africa provides alternative representation where needed.

Does a criminal defence lawyer work in magistrate’s court, regional court, or High Court?

All three. Most matters start in the magistrate’s court; serious Schedule 5 and 6 matters are tried in the regional court; the High Court hears the most serious trials and all appeals from the lower courts.

Are criminal defence lawyers the same as bail lawyers?

Most criminal defence lawyers handle bail applications as part of their day-to-day work, and some firms operate a dedicated after-hours bail line for urgent out-of-hours applications.

If you or a family member has been arrested or is facing a criminal charge — including any Schedule 5 or 6 offence, bail application, or matter needing after-hours emergency representation — Burger Huyser Attorneys’ criminal law practice can help. The firm operates an after-hours bail line (069 522 7696) for urgent out-of-hours matters across Gauteng, with day-time instructions handled through the head office in Linden, Randburg (011 888 0246) and the Centurion branch (012 644 4990). Clinton Shaw, the firm’s criminal law specialist consultant, focuses on assault matters; Abrie van der Merwe handles criminal work at the Linden office. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is admitted at the Legal Practice Council under the Legal Practice Act 28 of 2014.