Being accused of a crime in South Africa can be frightening. But being charged with an offence does not mean that you have lost your constitutional rights.
The Constitution of South Africa gives every accused person the right to a fair trial. This includes important rights such as having the trial start and finish without unreasonable delay, having adequate time and facilities to prepare a defence, having legal representation where the law provides for it, and being able to challenge the evidence presented against you.
The prosecutor must also play by the rules
Criminal cases are prosecuted on behalf of the State by the National Prosecuting Authority (NPA). But prosecutors do not have unlimited freedom to do whatever it takes to obtain a conviction.
Section 32 of the National Prosecuting Authority Act 32 of 1998 requires members of the prosecuting authority to serve impartially and perform their functions in good faith and without fear, favour or prejudice, subject to the Constitution and the law.
The NPA’s prosecutorial principles also require prosecutors to act objectively and consider relevant circumstances, including matters that may be favourable or unfavourable to an accused person. Prosecutors must also avoid conflicts of interest and assist the court in reaching a just verdict based on the evidence.
This does not mean that a prosecutor has to take the accused person’s side. The prosecutor represents the State and presents the prosecution case. But the prosecutor must perform that role fairly, objectively and within the law.
What if you believe the prosecutor is biased?
Simply saying, “The prosecutor is biased,” does not automatically mean that the prosecutor must be removed or that the accused must be acquitted.
Courts look at the actual facts and evidence. Allegations of bias or improper conduct generally need to be supported by concrete evidence showing that the prosecutor failed to act objectively or otherwise breached their legal duties.
There are circumstances where prosecutorial conduct can be challenged. For example, a prosecutor is expected to apply their mind to the evidence and must not act arbitrarily. Recent South African case law has reaffirmed the requirement that prosecutors act in good faith, impartially and without fear, favour or prejudice.
If serious misconduct affects the fairness or legality of criminal proceedings, the appropriate remedy will depend on the circumstances of the particular case. A court may make an appropriate order to protect the accused’s constitutional rights. However, there is no automatic rule that prosecutorial misconduct results in an acquittal.
Your right to a trial without unreasonable delay
Fairness also includes making sure that a criminal case does not drag on unreasonably.
Section 35(3)(d) of the Constitution gives an accused person the right to have their trial begin and conclude without unreasonable delay.
The Criminal Procedure Act also requires a court to investigate delays that appear unreasonable and may allow the court to make an appropriate order where proceedings are being delayed unreasonably and prejudice is caused or threatened.
This does not mean that every postponement or legal challenge is automatically an unconstitutional delay. Courts consider the circumstances of each case, including the reasons for the delay and any prejudice suffered.
Challenging the State’s case
An accused person has important rights when it comes to the evidence presented by the State.
Section 35(3) of the Constitution includes the right to adduce and challenge evidence. This allows the defence to test the State’s case through the normal criminal-trial process, including cross-examination and presenting evidence where appropriate.
The prosecution also has responsibilities when deciding whether to proceed with a case. Prosecutorial policy requires prosecutors to consider whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution before instituting or continuing a prosecution.
That does not mean that the prosecutor has to prove the accused is innocent or investigate every possible defence on the accused’s behalf. The prosecutor’s duty is to conduct the prosecution properly, objectively and in accordance with the law.
The court must remain independent
The prosecutor represents the State. The accused is entitled to defend themselves. The court is not supposed to take the side of either party.
South Africa’s constitutional system requires courts to be independent and impartial. The judiciary’s role is to hear the evidence and arguments presented by the parties and apply the Constitution and the law.
The NPA also enjoys constitutionally protected prosecutorial independence. The Constitutional Court reaffirmed in 2026 that prosecutorial independence is an important constitutional principle, although that independence does not give the NPA unlimited power outside its lawful prosecutorial functions.
What should you do if you believe your fair-trial rights have been violated?
If you are facing criminal charges and believe that the State has acted improperly, do not assume that the case will automatically be dismissed.
Speak to a qualified criminal lawyer as soon as possible. Your lawyer can examine the circumstances of the case, the evidence, the conduct of the prosecution and any possible constitutional or procedural problems.
Depending on the facts, the appropriate legal response could involve raising an objection in the criminal proceedings, challenging particular evidence or conduct, bringing appropriate review proceedings, or seeking another remedy available under South African law.
The important point is that an accused person does not lose their constitutional rights simply because the State has charged them with a crime.
A fair trial means the case must be dealt with in accordance with the Constitution and the law, the State must comply with its legal obligations, and the accused must have a genuine opportunity to defend themselves.
If you find yourself facing criminal charges, it is essential to seek legal advice from experienced professionals, contact us and one of our qualified criminal defence attorneys can help you understand your rights, protect your interests, and ensure that you receive a fair trial. Remember, everyone deserves the opportunity to defend themselves in a just and impartial court of law.
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