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Summary LLB CPR3701 3.-Legal-Representation.
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Summary LLB CPR3701 3.-Legal-Representation.
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TOPIC THREE: LEGAL REPRESENTATIONLegal Representation as a Basic Right
The Constitution protects the right to legal representation in s35(2)(b)-(c) and s35(3)(f)-
(g)
s35 of the Constitution
(2) Everyone who is detained, including every sentenced prisoner, has the right-
(b) To choose, and to consult with, a legal practitioner, and to be informed of this right
promptly;
(c) To have a legal practitioner assigned to the detained person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly
(3) Every accused person has a right to a fair trial, which includes the right-
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state
expense,
Thus an accused canif substantial
choose and injustice would
have his own otherwise
lawyer,result, and toof
regardless behow
informed
trivialofthe
thiscase
right
promptly
Sections 35(2)(c) and 35(3)(g) show the tension between the ideal of having every
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accused person represented and the practical affordability of this ideal
er as
Furthermore, s73 of the CPA states that an accused is entitled to assistance after arrest
and at criminal proceedings
co
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s73 of the CPA: Accused entitled to assistance after arrest and at criminal proceedings
o.
(1) An accused who is arrested, whether with or without a warrant, shall, subject to any law relating to the
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management of prisons, be entitled to the assistance of his legal advisor as from the time of his arrest.
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(2) An accused shall be entitled to be represented by his legal advisor criminal proceedings, if such legal
advisor is not in terms of any law prohibited from appearing at the proceedings in question.
(2A) Every accused shall-
(a) at the time of his or her arrest;
o
(b) when he or she is served with a summons in terms of section 54;
(c) when a written notice is handed to him or her in terms of section 56;
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(d) when an indictment is served on him or her in terms of section 144(4)(a);
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(e) at his or her first appearance in court,
be informed of his or her right to be represented at his or her own expense by a legal advisor of his
or her own choice and if he or she cannot afford legal representation, that he or she may apply for
legal aid and of the institutions which he or she may approach for legal assistance.
(2B) Every accused shall be given a reasonable opportunity to obtain legal assistance.
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(2C) if an accused refuses or fails to appoint a legal advisor of his or her own choice within a reasonable
time and his or her failure to do so is due to his or her own fault, the court may, in addition to an order
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which it may make in terms of section 342A, order that the trial proceed without legal representation unless
the court is of the opinion that that would result in substantial injustice, in which event the court may,
subject to the Legal Aid Act (Act No. 22 of 1969), order that a legal advisor be assigned to the accused at
the expense of the State: Provided that the court may order that the costs of such representation be
is
recovered from the accused: Provided further that the accused shall not be compelled to appoint a legal
advisor is he or she prefers to conduct his or her own defence
Th
To breakdown the structure of this constitutional right, note that there are several
components:
o The right to legal representation
o The right to be informed of the right to legal representation
S v Cordier
sh
The o The
court heldright
thatto legalanrepresentation
where at State
accused has indicated expense
that in certain
he desires legal aidcircumstances
and is not given an
opportunity,
o The before
right tothe
becommencement
informed of the of right
the trial, to deal
to legal with the outcome
representation of his application,
at State expense inafter
having been advised
certain of the outcome thereof, and to consider his position before pleading to the
circumstances
relevant charge, the trial will be unfair
There is no exact meaning to the term “substantial injustice” as it depends on the
The court noted that when a layman applies for legal aid and thereafter appears without being
circumstances
informed of each of
of the outcome case, forhis
her or example, thehe
application, likelihood of imprisonment
could easily withoutthat
come to the conclusion the the
option of a fine would
application has been refused probably be considered substantial injustice
A fair trial requires that, where an accused has applied for legal aid, the situation is resolved before the
accused is permitted or, in appropriate circumstances, compelled to plead
In addition, a fair trial requires that any application for legal aid is carefully and completely noted in
such a way that another court which is later burdened with the matter is properly appraised of that fact
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, Hlantlalala & Others v Dyanti NO & Another
The accused were a group of women from a rural area involved in a dispute regarding the entitlement
to use piece of land. The women went onto the land and harvested mielies. The complainant charged
them with theft
The court noted the distinction between:
o The right of an accused to be informed of his entitlement to legal representation, more
particularly the right to apply to the Legal Aid Board for assistance and to be afforded an
opportunity to seek such representation; and
o The right to obtain legal assistance at State expense
The common law acknowledges the former and the Constitution the latter
Furthermore, there is a duty upon judicial officers to inform unrepresented accused of their (common-
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er as
law) right to legal representation. Especially where the charge is a serious one, which may merit a
sentence which could be materially prejudicial to an accused, such an accused should be informed of
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the seriousness of the charge and of the possible consequences of conviction
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Depending on the complexity and seriousness of the charge, the accused should not only be told of his
right, but should be encouraged to exercise it
o.
He should be given a reasonable time within which to do so
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He should also be told in appropriate cases that he is entitled to apply to the Legal Aid Board for
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assistance
Where a judicial officer fails to advise an unrepresented accused of his (common-law) right to legal
representation, an irregularity may occur. However, such an irregularity does not per se result in an
unfair trial, necessitating the setting aside of the conviction on appeal. The essential question is
whether the verdict was tainted by the irregularity, and, in this regard, it is for the appellant to show
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An irregularity results in a failure of justice whenever there has been actual or substantial prejudice
that a failure of justice resulted
Thus, no failure of justice will result if there is no prejudice to an accused and, there will be no prejudice
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to the accused if he would in any event have been convicted, irrespective of the irregularity
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On the present facts, the court held that the fact that no 'administrative machinery rendering free legal
services' exists in the former Transkei, is an irrelevant consideration in determining whether a failure of
justice occurred upon the omission of a judicial officer
This is because the accused would in any event not have received 'free legal services' and this cannot
be proffered as an excuse for denying a section of the South African society, merely because they
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happen to be in a particular area, rights otherwise enjoyed by the rest of the country
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Furthermore, the accused had a 'claim of right' defence (i.e. that they were entitled to reap from the
land), which they had not articulated clearly during the trial, but which a legal representative would
have formulated properly
Thus the omission was an irregularity resulting S v in a failure of justice and the convictions of the
Halgryn
appellants
The courts were accordingly set aside
is
held that although the right to choose a legal representative is a fundamental right and one
to be zealously protected by the courts, it is not an absolute right and is subject to reasonable
Note: this case occurred under Interim Constitution which wasn’t as clear cut as the final
limitations
Th
Constitution,
It presupposesthus
thatthe
theSCA sidestepped
accused can make Constitution and decidedfor
the financial arrangements the issue based
engaging on common
the services of the
law
chosen lawyer and that the lawyer is readily available to perform the mandate
An accused cannot, through the choice of any particular counsel, ignore all other considerations and
the convenience of counsel is not overriding
IfIt amust
legal also be noted isthat although theState,
rightthe
to choose
accused one’s legal representation is a
sh
representative assigned by the has little choice
fundamental right and one to be zealously protected by the courts,
The accused cannot demand that the State assign to her or him counsel of her it isor
not
hisan absolute
choice – but the
right and is subject to reasonable limitations
accused can object to a particular representative on limited grounds, e.g. conflict of interest or
Thus an accused cannot, through their choice of any particular counsel, ignore all other
incompetence
considerations
Whether a defence was so incompetent that it made the trial unfair is a factual question that does not
depend upon the degree of ex post facto dissatisfaction of the litigant – the assessment must be
objective
The failure to take certain basic steps, such as failing to consult, stands on a different footing from the
failure to cross-examine effectively or the decision to call or not to call a particular witness. It is
relatively easy to determine whether the right to counsel was rendered nugatory in the former type of
case but in the latter instance, where counsel's discretion is involved, the scope for complaint is limited
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