Understanding Criminal Charges in South Africa

What is a criminal charge?

A criminal charge is a formal accusation that a person has committed an offence. In South Africa, charges are brought by way of a charge sheet in the Magistrates' Court or Regional Court, or by indictment in the High Court.

The charge sheet or indictment sets out the specific offence, the date and place it is alleged to have occurred, and the section of law that was contravened. The accused is entitled to receive a copy of the charge.

Common-law offences and statutory offences

South African criminal law includes both common-law offences — developed by the courts over centuries, such as murder, assault, theft, fraud, and rape — and statutory offences created by Acts of Parliament.

Examples of statutory offences include those under the Drugs and Drug Trafficking Act 140 of 1992, the Road Traffic Act 93 of 1996, and the Firearms Control Act 60 of 2000.

Which court hears the charges?

• Magistrates' Court: handles the majority of criminal matters, with limits on the sentence it may impose.
• Regional Magistrates' Court: hears more serious matters and can impose heavier sentences, including up to life imprisonment in prescribed circumstances.
• High Court: hears the most serious matters, including those carrying minimum mandatory sentences under the Criminal Law Amendment Act 105 of 1997. Accused persons may also bring bail applications to the High Court if refused at the lower court level.

The charge and plea process

At the first court appearance, the accused is formally informed of the charge. The accused may be asked to plead guilty or not guilty at the first or a subsequent appearance.

Under section 105A of the Criminal Procedure Act 51 of 1977, a plea and sentence agreement may be negotiated between the defence and the prosecution before trial.

Diversion

For first-time and minor offenders, the prosecutor may divert the matter out of the formal court process. Diversion typically involves community service, attendance of a programme, or other conditions. Successful completion results in withdrawal of the charge and no criminal record.

Diversion is more common for young offenders and minor offences. An attorney can advise whether diversion is available in a specific matter.