Legal Aid Board v S and Others (363/09) [2010] ZASCA 112; 2011 (1) SACR 166 (SCA) ; 2010 (12) BCLR 1285 (SCA) ; [2011] 1 All SA 378 (SCA) (22 September 2010)

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[2010] ZASCA 112
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Legal Aid Board v S and Others (363/09) [2010] ZASCA 112; 2011 (1) SACR 166 (SCA) ; 2010 (12) BCLR 1285 (SCA) ; [2011] 1 All SA 378 (SCA) (22 September 2010)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 363 / 09
LEGAL
AID BOARD
.............................................................
Appellant
and
THE
STATE
.........................................................................
First
Respondent
GARY
PATRICK PORRITT
.................................................
Second
Respondent
SUSAN
HILARY BENNETT
.................................................
Third
Respondent
____________________________________________________________
Neutral citation:
Legal Aid Board v The State
(363/09)
[2010] ZASCA 112
(21 September 2010)
BENCH: MPATI P, LEWIS, PONNAN, BOSIELO and TSHIQI JJA
HEARD: 16 AUGUST 2010
DELIVERED: 22 SEPTEMBER 2010
SUMMARY:
Section 35(3)(g) of the Constitution - right to legal representation
at State expense. Legal Aid Act 22 of 1969 –
s 3B – court
does not have power to order the Legal Aid Board to provide accused
persons with two advocates each in private
practice to be remunerated
in accordance with the maximum rates permitted by the legal aid
tariff.
____________________________________________________________
_______________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from
:
South Gauteng High Court
(Johannesburg) (Borchers J sitting as court of first instance).
The appeal succeeds.
The order of the court below that the accused are entitled and the
Legal Aid Board is obliged to provide them with legal representation

at State expense is set aside.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
PONNAN
JA ( MPATI P, LEWIS, PONNAN, BOSIELO and TSHIQI JJA concurring):
[1] It is hardly necessary to dwell on the advantages to an accused
person of legal representation. They are well documented and

recognised. I assume of course that the representation is competent.
Trial judges have on occasion had the experience of a litigant
in
person who seems able to conduct proceedings with skill and sometimes
to a successful conclusion. But that is usually the exception.
Any
litigant in person is generally at a disadvantage more especially one
facing a serious criminal charge. The adversarial system
that
prevails in this country assumes a forensic contest that is more or
less evenly matched. The sad reality is that all too frequently
it is
not. An unrepresented accused is usually disadvantaged, first, by a
lack of legal knowledge and skill, and, second, because
he or she
suffers the disability of not being able to dispassionately assess
and present his or her case as well as trained counsel
for the State
can.
[2] It cannot therefore be doubted that a criminal
trial is most fairly conducted when both prosecution and defence are
represented
by competent counsel. The entitlement of a person charged
to be represented, if necessary, by a legal practitioner at public
expense
is an important safeguard of fairness in the administration
of criminal justice. An entitlement to legal aid is a measure which

reduces the possibility of an injustice and enhances the prospects of
a fair trial. Our Constitution recognises both the practical
and
logical nexus between legal representation and a fair trial. Thus
section 35(3) of our Constitution guarantees to every accused
person
his or her right to a fair trial, which includes the right in
subsection (
g
)
to have a legal practitioner assigned, if substantial injustice would
otherwise result.
[3] In
S v Vermaas; S
v Du Plessis
1
Didcott J lamented the fact that insufficient had
been done by the State to give meaningful content to the
constitutionally entrenched
right to legal representation. Whilst
accepting that there were multifarious demands on the public purse,
he stated that ‘the
Constitution does not envisage, and it will
surely not brook, an undue delay in the fulfilment of any promise
made by it about
a fundamental right’. Against that backdrop s
3 of the Legal Aid Act
2
came to be amended
3
by the insertion of the following italicised
phrase: '[t]he objects of the board shall be to render or make
available legal aid
to indigent persons
and
to provide legal representation at State expense as contemplated in
the Constitution
. . .'. The board to
which reference is made is the appellant, the Legal Aid Board of
South Africa (the LAB), an independent body
corporate, established by
s 2 of the Act.
[4] The annual parliamentary grant of the LAB for the 2007/8
financial year was in the region of R581m. During that period it
employed 2 193 members of staff and finalised approximately 400 000
cases. In essence the LAB uses public funds to provide legal

representation to indigent persons on a fairly large scale across the
country. Given its fiscal constraints it is obviously unable
to
provide a full suite of legal aid services to those genuinely in
need. It does, on occasion, instruct legal practitioners in
private
practice to defend accused persons. When it does those practitioners
are remunerated in accordance with tariffs prescribed
by its Legal
Aid Guide.
[5] The second respondent, Gary Patrick Porritt (Porritt) and the
third respondent, Susan Hilary Bennett (Bennett) (the respondents)

have been indicted together with various companies that they
represent on a total of 3 160 fraud charges in the South Gauteng High

Court. Both are on bail. Porritt’s bail was fixed at R1m, an
amount subsequently reduced, on application by him, to R800
000. He
states that his bail had been paid by a trust of which he is a
beneficiary and that he is currently indebted to it in that
sum.
Bennett's bail of R100 000 was secured by way of a mortgage bond in
favour of the State over a property in Knysna which is
registered in
the name of a company of which she is the sole director.
[6] Although the respondents first appeared before Borchers J during
January 2006, the criminal trial proper is yet to get under
way. When
they initially appeared in the high court they were legally
represented by counsel and an attorney of their choosing.
Since May
2007 they have been without representation. Until then, they spent
some R23m on various preliminary legal skirmishes.
That, according to
Porritt, was funded by certain trusts of which, as he puts it, he was
'a discretionary beneficiary'. Those trusts,
so he says, have
resolved to withdraw their financial support and to distance
themselves from the criminal trial.
[7] The respondents thus made application to the LAB for legal
representation at State expense. Each was required to complete a

standard form briefly setting out their financial position. They
declined to do so. Their applications were accordingly refused.

Although it initially did so on some other erroneous basis, it is
hard to fault the LAB's ultimate conclusion that each had not

satisfied it that they were indigent and therefore did indeed qualify
for legal representation at State expense.
[8] The respondents, having been advised that they had two rights of
internal appeal to higher echelons within the LAB, exercised
the
first to the Regional Operations Executive. Unsurprisingly, given
their failure to furnish the required information, it failed.
Each
was nonetheless advised by the Regional Operations Executive of a
further right of appeal to the National Office Executive.
And
informed:
'Should you wish to appeal my decision, please provide
the following:
1 A signed means test
2 Details of all your:-
Assets
Income
Liabilities
Expenditure
3 Your personal circumstances – e.g. where do you
reside, what is the value of your right of occupation, who provides
for
your food, clothing, health etc, needs and at what cost.
4 Your background and education.
5 Your ability, if any, to contribute to the costs of
your defence.
6 In the light of the statement "I am a beneficiary
of certain trusts with substantial assets in SA", details of all
trusts
of which you, your spouse or your children are beneficiaries,
the trust deed and financial statements as well as particulars of
the
assets of the trust.
7 Details of any property owned by you, your spouse or
your children or any trusts of which any of you are beneficiaries and
the
value of the said property.'
The response of the respondents was to direct a request for
information to the LAB ostensibly on the basis that it was required

to prosecute their further appeal. When the matter came before
Borchers J on 24 October 2007 they were informed by an official
of
the LAB that they were not precluded, even at that stage, from
supplying the information sought and that by doing so the prospects

of their appeal succeeding would be enhanced. Once again they
declined. Instead, contending that not all of the information sought

by them had been supplied by the LAB, they launched an application to
compel the LAB to supply the information sought. That application
was
dismissed by Sapire AJ.
[9] In September 2008, no further progress having been made, Borchers
J decided to proceed in terms of s 3B of the Act. Section
3B
provides:
'(1) Before a court in criminal proceedings directs that
a person be provided with legal representation at State expense the
court
shall
(
a
) take into account
(i) the personal circumstances of the person concerned;
(ii) the nature and gravity of the charge on which the
person is to be tried or of which he or she has been convicted, as
the case
may be;
(iii) whether any other legal representation at State
expense is available or has been provided; and
(iv) any other factor which in the opinion of the court
should be taken into account; and
(
b
) refer the matter for evaluation and report by
the board.
(2) (
a
) If a court refers a matter under
subsection (1)(
b
), the board shall, subject to the provisions
of the Legal Aid Guide, evaluate and report on the matter.
(
b
) The report in question shall be in writing
and be submitted to the registrar or the clerk of the court, as the
case may be, who
shall make a copy thereof available to the court and
the person concerned.
(
c
) The report shall include
(i) a recommendation whether the person concerned
qualifies for legal representation;
(ii) particulars relating to the factors referred to in
subsection (1)(
a
)(i)
and (iii); and
(iii) any other factor which in the opinion of the board
should be taken into account.'
[10] The learned judge requested the LAB to furnish her with a report
contemplated by s 3B(1)(b). In that report the LAB asserted
that
accused persons who apply for legal aid are subject to a means test,
which is calculated in accordance with a formula prescribed
by its
Legal Aid Guide. Applying that formula, according to the LAB, an
accused person with a calculated income of less than R2
000.00 per
month qualified for legal aid. The LAB contended in its report that:
'[Porritt and Bennett] have a right to a further
internal appeal against the decision to refuse legal aid. [They] have
not yet exercised
such right, but if [they] continue to refuse to
provide the information and documentation requested by the LAB, the
result of any
further appeal is likely to be unfavourable to [them].'
And submitted that:
'[I]t is obliged to implement the provisions of the
Legal Aid Guide, which is a document approved by Parliament. For the
reasons
set out above and due to the continued refusal by the accused
to provide the information requested, the LAB has no choice but to

refuse legal aid’.
'Applicants bear the onus of proving, on a balance of
probabilities, that they qualify for legal representation at State
expense.
To do this, applicants, must be required to provide all
necessary information and documentation and answer all relevant
questions
as to their financial circumstances.'
[11] As Borchers J put it 'the accused raised energetic objections to
the court proceeding with the enquiry'. Undaunted, she proceeded.
The
respondents launched a wide-ranging attack on the LAB’s report,
submitting in essence that it did not 'constitute a proper
report in
terms of s 3B of the Act'. They accordingly requested the court to
order the LAB to furnish a proper report in compliance
with the Act.
The learned judge declined to do so. Instead, she directed them to
answer a number of questions appertaining to their
personal
circumstances. That they eventually did.
[12] In her view two issues arose for consideration: first, whether
the court should order the LAB to provide the respondents with
legal
representation at State expense, and if so, second, the scope and
extent of such representation.
[13] In answering the first of the two questions in favour of the
respondents, Borchers J stated:
‘
On the first issue, I
accordingly find that legal representation in this matter is
necessary; further that the accused have shown
themselves to be
indigent as defined; further, that their children who are
beneficiaries of possibly very wealthy trusts cannot
be forced to
fund their parents' legal representation and, finally, that the Board
should be directed to do so.'
On the second issue, the learned judge concluded:
'I order that the Legal Aid board provide two legal
practitioners to represent each of the accused in this trial. Such
practitioners
are to be remunerated at the maximum fee permitted by
the Legal Aid Guide.'
On 27 March 2009 Borchers J clarified that all four practitioners to
be appointed by the LAB to represent the respondents were
to be
advocates in private practice and not employees of the LAB.
[14] The recorded transcript of the proceedings during the
application for leave to appeal reads:
‘
COURT
:
Can I ask this before you go any further, this seems to be your
central issue and why you are submitting that your appeal has

strength or prospects of success, is there anything further, are you
also asking for leave on the grounds that I wrongly found
that the
accused were indigent and needing of legal aid?
COUNSEL
:
4
No M'Lady, the papers as we read
them, we would with respect not take issue. There has not been any
evidence to suggest otherwise.
COURT
:
Yes, the accused have made an assertion, and I do not think anything
to the contrary was proved.
COUNSEL
:
No
COUR
T:
Very well.'
[15] Borchers J in her ruling on the application for leave to appeal
stated: ‘This is the only ground of appeal on which
leave is
sought. [Counsel] declined to advance the other grounds set out in
the notice of appeal, so they fall away.’ She
then proceeded to
grant an order in these terms: ‘Leave is granted to the [LAB]
to appeal to the Supreme Court of Appeal
against the order of …
and insofar that it is necessary, against the so-called second
order’. That notwithstanding,
the LAB in its notice of appeal
filed with this Court asserted as its first ground of appeal:
'In the circumstances of the present case, no legal
representation ought to have been provided to the second and third
respondents
at state expense as there was insufficient evidence to
demonstrate that they were unable to fund their own representation.'
Consistent with that approach, counsel for the LAB submitted in its
heads of argument that there were two grounds of appeal. First,
that
the learned judge should have found that Bennett and Porritt were not
entitled to legal representation at State expense. And,
second, that
the order of the learned judge encroached upon territory reserved for
another arm of State and thus offended against
the separation of
powers doctrine.
[16] Neither Bennett nor Porritt initially
participated in the appeal. The first respondent, the State,
frustrated at the lack of
progress in the trial, did. Its counsel
contended that after the abandonment in the court below of the first
ground of appeal,
this court had no jurisdiction to hear and
adjudicate upon it. But as this court has previously held, it will
not necessarily consider
itself bound by the grounds upon which leave
has been granted. If this court is of the view that in a ground of
appeal not covered
by the terms of the leave granted there is
sufficient merit to warrant consideration of it, it will allow such
ground to be argued.
5
[17] This does not mean that the court will always
be free to enlarge the issues whether mero motu or at the request of
the parties.
6
The question of prejudice may arise, as indeed it
first did in relation to Porritt and Bennett in this case. They had
intimated
at the outset that they were willing to abide the decision
of this court. When they learned that counsel for the LAB was seeking

to resuscitate the first ground they communicated their displeasure
in a letter addressed to the Registrar of this court. In it,
they
stated:
'As conveyed in the letter of . . ., we would abide the
decision of the Court if the sole issue to be decided was whether the
lower
court entered the domain of the executive and offended the
doctrine of the separation of powers. This was the only issue on
which
leave to appeal was granted by the lower court.
However, in the event that the applicant is permitted to
argue for a reversal of the lower court's finding that we were
entitled
to be provided with legal representation at state expense –
which issue was abandoned by the applicant without being argued
at
the hearing of its application for leave to appeal before the lower
court – then we would require to oppose this aspect
and we
would have to seek counsel to represent us on this issue on a pro
bono basis.'
[18] As a consequence when the matter first served before us on 13
May 2010 it had to be postponed at the instance of the LAB.
It was
thereafter re-enrolled for hearing on 16 August 2010. In the
intervening period the LAB launched a formal application on
notice to
the other parties for condonation and for this court to grant it
leave to appeal on wider grounds than those allowed
by Borchers J. In
an affidavit filed in support of that application, the LAB's then
attorney states:
'With respect, it appears that there may have been a
misunderstanding, by [Counsel] regarding this point. I had no
authority, nor
did he have instructions, to abandon the point. I had
in fact been specifically instructed by the chief executive officer
of the
appellant to persist with it. As can be seen above, the point
was and remains of great importance to the appellant and it was not

an issue which the appellant was prepared to abandon at all'.
[19] In my view, the postponement and subsequent application
satisfactorily addresses any prejudice (actual or potential) that
the
other parties may assert. The question that the LAB now seeks to
raise was actually part and parcel of its case before Borchers
J and
is basic to the adjudication of the appeal. That being so, it appears
to me fitting to broaden the scope of the appeal.
7
To do otherwise would be to ignore a fundamental issue that was fully
ventilated in the court below. That may well constitute not
just a
fruitless exercise but also one divorced from reality.
[20] If the contention that the LAB now seeks to revive is good and
the other for which leave has already been granted, bad, this
Court
in refusing to investigate it, would be upholding a wrong order.
That, this court should be slow to countenance. Moreover,
such an
approach may well run counter to s 173 of the Constitution, which
provides:
'The Constitutional Court, Supreme Court of Appeal and
High Courts have the inherent power to protect and regulate their own
process,
and to develop the common law, taking into account the
interests of justice.'
As it was put by the Constitutional Court in
SABC
Ltd v National Director of Public Prosecutions & others
:
8
'This is an important provision which
recognises both the power of Courts to protect and regulate their own
process as well as their
power to develop the common law. . . . The
power recognised in s 173 is a key tool for Courts to ensure their
own independence
and impartiality. It recognises that Courts have the
inherent power to regulate and protect their own process. A primary
purpose
for the exercise of that power must be to ensure that
proceedings before Courts are fair. It is therefore fitting that the
only
qualification on the exercise of that power contained in s 173
is that Courts in exercising this power
must
take into account
the
interests of justice.'
[21] It is noteworthy that our courts were indeed
endowed with such power even in our pre-constitutional era.
9
According to the Constitutional Court:
10
‘
The task of an appeal Court in
determining its own proceedings is an important one. Its primary
constitutional responsibility is
to ensure that the proceedings
before it are fair and it must give content to that obligation. This
obligation has always been
part of our law and is now
constitutionally enshrined as a fundamental right in s 35(3) of the
Constitution. The task of ensuring
that the proceedings are fair will
often require consideration of a range of principled and practical
factors, some of which may
pull in different directions.’
But it did remind us that ‘it is a power
which has to be exercised with caution’
11
and
sparingly after taking into account the interests of justice in a
manner consistent with the Constitution.
12
[22] In all of the circumstances it seems necessary for a proper
adjudication of the matter to allow the LAB to revive its contention

based on the first ground. I accordingly turn to that aspect.
[23] Section 3B of the Act must, according to Navsa JA, be seen:
'[A]gainst the [LAB's] objects, as
set out in section 3 of the Act, namely, to make available legal aid
at State expense to those
who qualify for it
and
to ensure that the guarantee of legal
representation at State expense, if substantial injustice would
otherwise result, as an integral
part of the right to fair trial as
contemplated in s 35(3)(g) of the Constitution, is met.’
13
[24] It is so that past practice in this country has forced accused
persons on occasion to trial notwithstanding that, by reason
of lack
of means, they were unable to obtain legal advice or representation.
That past practice and the approach to the poor and
disadvantaged
that it reflects is now considered to be inconsistent with the
standards that we as a nation have set for ourselves.
Given that
history, it may be all too easy for some of us to comprehend the
right to legal representation in more absolute terms
than that given
to us by our Constitution. There are two component parts to that
basic right: First, the right to choose counsel
and to be represented
by that person (s 35(3)(f)); and, second, the right to have a legal
representative assigned by the State
and at State expense if
substantial injustice would otherwise result (s 35 (3)(g)).
[25] In
Vermaas
Didcott J had occasion to consider s 25(3)(e)
14
of our Interim Constitution, the predecessor to
the section here under consideration. He had this to say (para 15):
‘
the effect of the disjunctive
'or', appearing in the section immediately before the reference to
the prospect of 'substantial injustice',
is to differentiate clearly
between two situations, the first where the accused person makes his
or her own arrangements for the
representation that must be allowed,
the second in which the assistance of the State becomes imperative,
and to cater for the personal
choice of a lawyer in the first one
alone.’
[26] But as Harms JA emphasised in
S
v Halgryn
:
15
‘
Although the right to choose a legal
representative is a fundamental one and one to be zealously protected
by the courts, it is
not an absolute right and is subject to
reasonable limitations.’ Harms JA found support for his view in
the Canadian case
of
R v Speid.
16
Speid
held that
the court must ‘balance the individual’s
right to select counsel of his own choice, public policy and the
public interest
in the administration of justice and the basic
principles of fundamental fairness’.
A
view that has since been endorsed by the Constitutional Court in
Fraser v ABSA Bank
17
in these terms: ‘. . . the right embodied in
s 35(3)(f) of the Constitution does not mean that an accused is
entitled to the
legal services of any counsel he or she chooses,
regardless of his or her financial situation. Financial constraints
necessarily
play a role and competing needs and demands have to be
balanced.’
[27] It bears noting that the Canadian Charter,
like our own, does not entrench a general right to counsel at public
expense irrespective
of the circumstances of the particular case.
R
v Rowbotham
18
pertinently drew the following distinction: 'The
right to retain counsel, constitutionally secured by section 10(b) of
the Charter,
and the right to have counsel provided at the expense of
the State are not the same thing.’ Our Constitution also makes
plain
that the right to assigned counsel, unlike the right to chosen
counsel, is subject to the important qualifier: ‘if substantial

injustice would otherwise result’. Whether substantial
injustice would otherwise result is a matter pre-eminently for the

decision of the judge trying the case, a Judge, according to Didcott
J:
19
‘
much better placed than we are
by and large to appraise, usually in advance, its ramifications and
their complexity or simplicity,
the accused person's aptitude or
ineptitude to fend for himself or herself in a matter of those
dimensions, how grave the consequences
of a conviction may look, and
any other factor that needs to be evaluated in the determination of
the likelihood or unlikelihood
that, if the trial were to proceed
without a lawyer for the defence, the result would be 'substantial
injustice.'
[28] Canadian cases have generally held that where
an accused has been denied legal aid, the trial judge may direct the
appointment
of counsel if satisfied that the accused is impecunious
and that the nature of the case is such that the accused cannot
receive
a fair trial without representation.
20
The right to counsel is thus inextricably linked
to the facts of the case. The position in Australia has been
articulated as follows
by Mason CJ and McHugh J in
Dietrich
v R
:
21
'Despite the absence in Australia of any formally
entrenched declaration of rights similar to the Canadian Charter, the
approach
of Australian courts resembles the Canadian approach in
rejecting the proposition that an indigent accused has an absolute
right
to the provision of counsel at public expense.’
Later the judgment proceeds:
'It should be accepted that Australian law does not
recognise that an indigent accused on trial for a serious criminal
offence has
a right to the provision of counsel at public expense.
Instead, Australian law acknowledges that an accused has the right to
a
fair trial and that, depending on all the circumstances of the
particular case, lack of representation may mean that an accused
is
unable to receive, or did not receive, a fair trial. Such a finding
is however, inextricably linked to the facts of the case
and the
background of the accused.'
The approach in those two countries is not
dissimilar to our own. That emerges from
Fraser
,
22
where
the Constitutional
Court held:
‘
An accused also has the right
to have a legal practitioner assigned at the State’s expense in
terms of s 35(3)(g) where substantial
injustice would otherwise
result . . . The extent to which this might be appropriate or
sufficient in a particular case will depend
on all relevant
prevailing factors, including the complexity and seriousness of the
criminal charges.’
[29] What all of this establishes, in my view, is that a court
undertaking the enquiry in question must ask itself two questions:

first, would substantial injustice ensue were the accused to proceed
to trial without representation, and if so, second, could
the costs
of that representation be borne by the accused from his or her own
resources?
[30] In this case the first question proved uncontroversial. The
criminal trial, if and when it eventually starts, is likely to
be a
complex one. The indictment runs to over 1 400 pages. In excess of
3000 witnesses are expected to testify. It is anticipated
that
approximately one million pages of documentary material will have to
be read in preparation for trial. All told the trial
is expected to
last in the region of three years. Against that backdrop it can
hardly be in dispute that Bennett and Porritt will
require legal
representation and that the trial will be rendered unfair were they
to appear in person. The second question proved
more troublesome. The
learned judge, to her credit, was concerned at the delays that had
plagued the trial since inception and
motivated by a desire that the
trial commence and proceed to conclusion with alacrity. She thus felt
compelled to intervene. But
as Borchers J herself observed ‘neither
[respondent] presents the picture of the usual indigent person. They
are both well-groomed,
use cellphones and have the means to travel by
air. [Porritt] wished to travel to the United States in 2007:
[Bennett] did in fact
travel to the United Kingdom in 2008. Both live
in desirable locations. . . .' The learned judge therefore
entertained some apprehension
as to whether either of the respondents
were indeed indigent and thus qualified for legal representation at
state expense. As I
have already stated she endeavoured to address
that by requiring them to answer a range of questions. Whether the
responses elicited
ought to have done sufficient to quell her
apprehension is an aspect to which I now turn.
[31] Each of the respondents was asked to furnish details pertaining
to:
(a) Their directorships of and shareholdings in companies and
membership interests in closed corporations:
They responded in identical fashion:
‘
Details of directorships/memberships to be
provided by Legal Aid Board’ and ‘no shares are held in
any company which
are of any material value’.
(b) Income from any source whatever:
Both answered 'nil'.
(c) Funding of normal living expenses:
Porritt asserts that he is dependent on his wife and children for his
normal living expenses. He lives in a house owned by his
son in
Pietermaritzburg for which he pays no rent. He indicated that a cell
phone used by him is paid for by the Snowdon Farm Trust
to enable him
to provide technical advice and assistance to its farming operations.
Bennet lives at 31 Cearn Drive, Leisure Isle,
Knysna. In October
2004, that property was valued at R5.85m. There were then mortgage
bonds to the tune of R4.1m registered over
the property. The owner of
the property is Moneyline 696 (Pty) Ltd. Bennett is the sole director
of Moneyline 696 (Pty) Ltd. The
sole shareholder of Moneyline 696
(Pty) Ltd is the Colisseum Trust. Bennett stated that her lodgings
are provided by an elder daughter
and that her living expenses are
'funded out of payments of R5 000 from time to time by elder
daughter's business against a loan
of approximately R31 000 made by
[her] – which loan is being repaid as and when [her] daughter
is able'.
(d) Assets owned by them or in which they have an interest:
Porritt states that he has ‘no assets of any material value’.
Whilst Bennett, aside from alluding to the R31 000 loaned
to her
elder daughter's business, also asserts that she has ‘no other
assets of any material value’.
(e) The total amount expended on litigation thus far:
According to Bennett this information was not within her personal
knowledge, whilst Porritt states that he 'understands that the
total
amount expended in relation to the criminal and related matters is in
the region of 23 million'.
(g) The names of trusts which met their legal expenses:
Bennett's response is: 'This information is not within [my] personal
knowledge as the vast majority of [my] legal expenses have
been
intertwined with those of [Porritt] and have been met through
arrangements facilitated on behalf of [him]'. Whilst Porritt
states:
'It is [my] understanding that this was routed ultimately through the
Gary Patrick Porritt Children's Trust, although the
Boom Street Trust
and the Snowdon Farm Trust may have provided some assistance'.
(h) The reason for the trusts paying their legal expenses:
Bennett states that her legal expenses have '[t]o date, been almost
invariably the same expenses as those of [Porritt] so there
have been
no additional expenses paid by the trusts which were incurred by
[me]'. Porritt's response is that he ‘is a discretionary

beneficiary of the Gary Patrick Porritt Children's Trust. The Boom
Street Trust did not pay any legal expenses but merely stood
surety
for a limited amount of legal expenses and registered a bond to
secure such suretyship’. He adds that it is his ‘understanding

that the Snowdon Farm Trust had a loan from the Gary Patrick
Porritt's Children's Trust against which certain repayments were
made’.
[32] Moreover, the Companies and Intellectual Properties Registration
Office (CIPRO) lists 17 companies (one being a public company)
of
which Porritt is or has been a director and records his status in ten
of them as 'active'. CIPRO lists 23 companies of which
Bennett is or
has been a director. It records her status in 19 of them as 'active'.
And then there is a veritable web of trusts:
According to Borchers J,
Porritt described himself as a ‘beneficiary of a trust with
substantial assets’ in an affidavit
several years ago. He has
subsequently sought to explain that in describing himself thus he
meant that ‘he is a "discretionary
beneficiary" and
the relevant trust in the exercise of its discretion has refused to
assist him any further'. The trust to
which he alludes is the Gary
Patrick Porritt Children's Trust which was founded by his late father
28 years ago for the benefit
of his grandchildren born to Porritt'.
He goes on to state that although he is not 'a named beneficiary, the
trustees may make
available such amounts as they at their discretion
may deem appropriate for his maintenance or that of his wife or for
their reasonable
pleasures in life'. The trust according to him
originally acquired a number of farming properties with loan finance.
He asserts
that he is 'not in possession of information regarding the
value of the assets of the trust or its income'. Both Bennett and
Porritt
describe themselves as trustees of the Surrey Farm Trust and
the Colisseum Trust. Both of those trusts were established in 1993.

The former owns a 34 hectare piece of undeveloped land in
Pietermaritzburg, which according to Porritt, 'it leases out for a
sum
equivalent to its monthly rates'. The trustees are Porritt and
his wife. The first named beneficiaries are their children. The trust

deed obliged the trustees to acquire four specific farms in the
Pietermaritzburg area. The latter, as Porritt puts it, 'owns
Moneyline
696 (Pty) Ltd'. The trustees are Bennet and Porritt. In
1993 by resolution of the trustees Bennett’s two daughters were
substituted
as beneficiaries. In addition Porritt and his wife are
the trustees of the Surrey Development Trust which was established in
1993.
The first-named beneficiaries appear to be their children. The
trust deed obliged the trustees to acquire four specific farms in
the
area of Pietermaritzburg, which it lists. The Boom Street trust was
established in 1990. The founder was Mr C D Harris (who
also founded
the Coliseum Trust). The trustees are Mrs Porritt and Mr K H Knight.
The beneficiaries are the four children of Mr
and Mrs Porritt
together with any other persons or trusts appointed or substituted
unanimously by the trustees. The trustees are
obliged in terms of the
trust deed to acquire ownership of a specifically identified property
in Pietermaritzburg. The Snowdon
Farm Trust was established in 2002.
The first trustees were Mrs Porritt and Mr D H Knight. The
beneficiaries of the trust are the
children of Mr and Mrs Porritt.
Together with any other persons or trusts appointed or substituted
unanimously by the trustees.
This is the trust to which Mr Porritt
provides technical advice and assistance and which provides him with
a cell phone. The trustees
were obliged in terms of the trust deed to
acquire the farm Snowdon, in extent 1 283 hectares in KwaZulu Natal.
There is also a
reference in the record to a further property-owning
trust, the Reeboksfontein Trust, of which Porritt’s children
are the
beneficiaries. None of the trust deeds state from whom in
each instance the immovable property, the subject of that deed, is to

be acquired, on what terms that is to be done and whether it is to be
received as a donation or purchased and, if the latter, how
the
purchase price is to be paid.
[33] Section 3B makes plain that it is in fact the court’s
enquiry. It follows that the employment of terminology such as

‘burden or onus of proof’ is particularly unhelpful and
would serve to obfuscate rather than elucidate the enquiry.
In those
circumstances it would be wholly inappropriate for a court to saddle
an accused person with an onus and to decide the
matter on the
strength of whether or not that has been discharged. That is not to
suggest that persons such as the respondents
would be free to adopt a
supine attitude. On the contrary, particularly where, as here, the
information sought is peculiarly within
their knowledge, they have as
much - if not more - of an obligation as the State to assist the
court’s enquiry. Failure in
those circumstances to assist the
court may well be fatal to their quest for legal assistance at State
expense. For, if the court
is left in the dark as to one’s
personal circumstances it can hardly properly undertake the
postulated enquiry. Were that
to be the case it must perforce decline
to issue the directive contemplated by s 3(B)(i). In this case
Borchers J observed that
‘the court has not the administrative
machinery to investigate the correctness of the information
supplied’. That may
be so. But that ignores the court’s
power to subpoena witnesses and documents or to place witnesses such
as the respondents
under oath and if necessary for them to be
subjected to cross examination. Those are formidable weapons in the
judicial armoury
that must, where necessary, be employed by a court
to enable it to discharge its constitutional mandate.
[34] I have referred in some detail to the evidential material that
served before Borchers J because it illustrates, I believe,
a
complete lack of candour on the part of both Bennett and Porritt.
Counsel for the LAB submitted that the respondents have deliberately

structured their affairs in such a way as to facilitate the disposal
or concealment of their assets. Whilst there is much to be
said for
that contention, it is unnecessary for this court to go that far.
Both Bennet and Porritt adopted an intractable attitude
and for well
on one year refused to furnish the LAB with information that was
legitimately sought for the purposes of assessing
their entitlement
to legal aid. They eventually furnished information only after being
directed by the court to do so. When they
eventually did many of
their responses were deliberately evasive and cagey. Each preferred
to burden the LAB with the responsibility
of ascertaining the extent
of their interest in companies and close corporations. Other
important disclosures were qualified by
the words ‘to the best
of my recollection’ or ‘to the extent that I am aware
of’. And yet in each instance
the information sought was
peculiarly within their knowledge. That ought reasonably therefore to
have redounded to their discredit.
[35] Given the information supplied by them, one
is none the wiser as to why the trusts (or indeed which ones)
furnished as much
as R23m for various preliminary legal skirmishes.
And why they are no longer willing to fund the defence of either in
the criminal
trial proper. Moreover, one cannot discern on what basis
the respondents and in particular Bennet qualified for assistance
from
those trusts. It is also somewhat rich for Bennett to say that
she qualified for assistance from the trusts because her legal
expenses
and those of Porritt have invariably been the same and yet
in the face of that to assert an entitlement separate from him to
representation
at State expense. On the LAB’s reckoning the
criminal trial would cost substantially less than the R23m already
spent. A
more pragmatic utilisation of the funds at their disposal
from the outset would have rendered their application for legal aid
unnecessary.
But as has been made plain both in this court and the
one below they intend to employ every stratagem available to them in
order
to delay the commencement and thereafter continuation of the
trial for as long as they possibly can. Whilst pursuing that as their

chosen course may well be their right, it may not be without its
consequences. For as the Constitutional Court has endeavoured
to
stress (
S v Jaipal
23
):
'The right of an accused to a fair trial requires
fairness to the accused, as well as fairness to the public as
represented by the
State. It has to instil confidence in the criminal
justice system with the public, including those close to the accused,
as well
as those distressed by the audacity and horror of crime.'
Nothing further need, however, be said about any of that at this
stage.
[36] In my view the responses of both Bennett and Porritt fall far
short of satisfying one that their personal circumstances are
such
that they do indeed qualify for legal representation at state
expense. I thus am of the view that given the paucity of reliable

information the learned trial judge wrongly concluded that Bennett
and Porritt 'have shown themselves to be indigent as defined'.
It
follows therefore that on the first ground the LAB must succeed.
[37] That conclusion ordinarily at any rate ought to have disposed of
the appeal. But as Borchers J herself observed in granting
leave to
appeal to the LAB on the second ground:
'The issue is of great importance to the Legal Aid
Board. This is a body charged with the equitable use of the limited
public funds
made available to it in order to provide legal
representation for a very large number of indigent people. My order
will annually
take away a significant and possibly disproportionate
slice from the available funds for several years. More important,
perhaps,
is the submission made by [Counsel] that I set a precedent
which is likely to be followed by other courts. Relatively few
orders,
if made annually, could make the Legal Aid Board's financial
position unpredictable and possibly untenable. It is therefore
crucial
for the Legal aid Board that the issue be decided at the
highest level by the courts.'
Plainly the ruling of Borchers J on this leg of the enquiry is not
purely academic. It does indeed have far reaching ramifications
for
the LAB. It therefore seems eminently sensible to me that we consider
its correctness.
[38] Borchers J was quite correctly concerned with
the integrity of the trial. After all she appreciated that the right
to receive
a fair trial according to law is a fundamental element of
our criminal justice system. And that representation by counsel must
be considered not on its own but as one relevant element of that
broader right. Moreover the learned judge recognised that the
constitutional right to counsel must be real and not illusory and
that an accused has, in principle, the right to a proper, effective

or competent defence.
24
As is evident from the judgment, her approach was
cognisant of the fact that the right to chosen or assigned counsel is
a right
of substance, not form.
25
But as she herself put it the respondents had
'asked for legal representation on a lavish scale – senior and
junior counsel
and an attorney for each accused'. What she ultimately
ordered the LAB to provide was thus much less than that sought. That
notwithstanding
the question remains whether the right to assigned
counsel comprehends a right as generous as that discerned by the
learned judge.
For, if it did not, then Borchers J lacked the power
to order the LAB to provide each of the respondents with two
advocates in
private practice to be remunerated at the maximum of the
legal aid tariff.
[39] Courts now
derive their power from the Constitution itself.
26
It follows that
courts too must observe the constitutional limits of their authority.
In
Doctors
for Life International v Speaker of the National Assembly &
others
27
the
Constitutional Court stated:
‘
Courts
must be conscious of the vital limits on judicial authority and the
Constitution’s design to leave certain matters
to other
branches of government. They too must observe the constitutional
limits of their authority. This means that the Judiciary
should not
interfere in the other branches of government unless to do so is
mandated by the Constitution.’
The
Constitutional Court also reminded us that courts should assiduously
refrain from exercising executive or legislative functions
under the
guise of judicial review (
DPP,
Transvaal v Minister of Justice and Constitutional Development &
others).
28
It held (para
183) that judicial review ‘permits courts to call upon the
executive and legislature to observe the limits of
their powers but
does not permit courts to exercise those powers themselves’.
Courts therefore have a duty to patrol - but
not cross – the
constitutional borders defined by the Constitution.
[40] If legal representation is indeed an
advantage, as it must be to an accused person in practically every
case, then it must
follow that it would be in the interests of
justice that representation be available in practically every case,
if necessary at
public expense. Moreover, it would be in the
interests of justice that such representation be of the highest
calibre. But as it
was put in
Dietrich v
R:
29
'If the interests of justice are to be pursued without
regard to other considerations, then clearly they require not only a
fair
trial but the fairest possible trial. But the interests of
justice cannot be pursued in isolation. There are competing demands
upon the public purse which must be reconciled and the funds
available for the provision of legal aid are necessarily limited. The

determination of what funds are to be made available is not a
function which the courts can or should perform. Nor are the courts

equipped to determine how the available funds are to be distributed –
for example, whether it is preferable to spread them
amongst the
largest number of cases possible or to devote them to a smaller
number of complex or more costly cases.'
[41] In my view the Canadian jurisprudence is
particularly instructive on this aspect of the case. It is clear that
the Supreme
Court of Canada will not dictate to the provinces and
territories how they should deliver legal aid and which delivery
models they
should establish and implement (
R
v Prosper).
30
As the following dicta from an assortment of
Canadian cases illustrate, their courts have manifested a studious
disinclination to
usurp the power and functions of their legal aid
agencies:
'I approach with wariness the
prospect of ordering the payment of counsel other than strictly in
accordance with the Legal Aid Scheme.
The case law is clear: in
general, provincial legal aid schemes accord with the Charter and
fulfil the requirement at common law
for the provision of counsel
where this is necessary for a fair trial. In addition, the courts
should show restraint in ordering
the commitment of public funds;
ordinarily, that is for those who are elected' (
R
v F
(DP)).
31
'The legal aid system is in place to
ensure legal representation for the less privileged in our society.
Financial and budgetary
constraints dictate that the remuneration
paid to lawyers who act for legal aid clients must be carefully
controlled and may be
less than the amount paid to lawyers for
comparable services rendered to clients who are not on legal aid. The
fees might not be
"reasonable" based on current market
rates for lawyers' services. When a lawyer places himself or herself
on the Legal
Aid Roster and signs a certificate to represent a client
he or she knows and accepts the quantum of remuneration to be paid.
It
would be inequitable if the lawyer could attempt to receive more
than the amounts specified in the Legal Aid Rules on the basis
that
the fees are reasonable, pursuant to a court taxation under Rule
6(1)(iii)' (
P
.
Barristers and Solicitors v Legal Aid Society
(Alberta
)).
32
'I'm very cognisant of the fact that
the Ontario Legal Aid Plan is a programme created and funded by the
Province. One of its purposes
is to provide for an orderly
financially responsible means of funding counsel for those who cannot
afford to retain counsel privately.
If I were to order that counsel
for these accused be paid at hourly rates that are substantially
higher than the legal aid rates,
then I would be undermining the
integrity of the legal aid system in Ontario. There must be a certain
consistency in all cases
in which funding is provided by the Province
for defence counsel' (
R v
Magda).
33
'Generally, if an accused is offered
state-funded and competent counsel within the legal aid scheme, he or
she will not be able
to seek an order that the Attorney General
provide other funded counsel of choice unless the provision of such
other counsel is
necessary to ensure that the accused can receive a
fair trial'
(R v Druken).
34
[42] That is not to suggest that a court is
powerless in the face of an unreasonably intransigent legal aid
board. After all it
is the court that is burdened with the
constitutional obligation of ensuring that the proceedings are
conducted in accordance with
notions of fairness and justice.
35
The approach to this conundrum by the Canadian
courts, consistent with an appreciation of the limits of its own
decision-making
powers, is not to issue orders against their legal
aid agencies but rather to stay the proceedings where satisfactory
arrangements
for legal representation cannot be made. In
R
v Peterman
36
the accused was charged with four counts of arson.
He was eligible for legal aid and Legal Aid Ontario issued him with a
legal aid
certificate. The certificate allowed him to select a lawyer
of his choice to represent him, provided the lawyer would accept the

certificate. The certificate carried with it certain conditions. The
lawyer had to bill legal aid at the legal aid tariff and accept

certain limitations. The most important of those limitations
concerned the payment of fees and expenses of out of town counsel,

preparation time and the retention of junior counsel. The accused
sought an order for payment at rates in excess of the normal
legal
aid tariff for counsel and junior counsel. He also sought payment of
counsel's reasonable disbursements, payment of counsel
for the full
amount of preparation time with no maximum limit on the number of
hours of preparation and payment for counsel's meals
and
accommodation. Legal Aid had in place certain policies concerning the
use of out of town counsel. The application judge refused
to grant
most of the relief sought but found 'this is a complicated case, ...
I am satisfied that no person other than Mr Rock
[Counsel selected by
the accused] could do a fair representation of the accused at this
stage.' She accordingly decided that the
denial of travel time,
reasonable preparation time and travel expenses was unreasonable and
that the request for junior counsel
was reasonable. She stated that
she had some serious concerns that if counsel's travel expenses and
reasonable accommodation and
meal expenses were not paid 'the accused
would not receive a fair trial'.
On appeal, Rosenberg JA for a three panel Ontario Court of Appeal
stated (para 21):
'That the application for setting legal aid rates and
policies relating to the retention of out of town counsel and of
junior counsel
lies with Legal Aid Ontario, not the court. ... A
criminal trial court has no jurisdiction to review those policies and
having
determined that they are unreasonable, impose other
arrangements on Legal Aid Ontario. The criminal trial court's
jurisdiction
rests solely on the obligation to ensure that the
accused person receives a fair trial. In some cases, the court would
be satisfied
if an accused is not represented by counsel, his or her
right to a fair trial as guaranteed by ss. 7 & 11(d) of the
Canadian
Charter of Rights and Freedoms would be infringed, if such
an accused lacks the means to employ counsel privately, but has
nevertheless
been refused legal aid, the court can make an order
staying the proceedings until the necessary funding for counsel is
provided
by the state.'
The judgment continued (para 25):
'In considering these issues, the application Judge was,
again, not entitled to review the reasonableness of the decisions
made
by Legal Aid. Her focus had to be on whether the respondent's
right to a fair trial was imperilled because of the conditions under

which he was being defended. In my view, there was no evidence to
support a finding that the respondent's right to a fair trial
was at
risk.'
[43] Such an approach finds favour in Australia as
well. As
Dietrich
put
it:
'For our part, the desirability of an
accused charged with a serious offence being represented is so great
that we consider that
the trial should proceed without representation
for the accused in exceptional cases only. In all other cases of
serious crimes,
the remedy of an adjournment should be granted in
order that representation can be obtained. While, in some
jurisdictions, judges
once had the power to direct the appointment of
counsel for indigent accused, this power has been largely overtaken
by
the development of
comprehensive legal aid schemes in all states, and, as such, trial
judges now cannot be asked to appoint counsel
in order that a trial
can proceed. However, even
in
those cases where the accused has
been
refused legal assistance and has unsuccessfully exercised his or her
rights to review of that refusal, it is possible, perhaps
probable,
that the decision of a Legal Aid Commission would be reconsidered if
a trial judge ordered that the trial be adjourned
or stayed pending
representation being found for the accused.'
[44] Our constitutional model demands no less of
our courts. Judicial deference, Schutz JA reminded us, ‘does
not imply judicial
timidity or unwillingness to perform the judicial
function’,
37
but is an appreciation by the court of the limits
of its own decision-making power. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
38
O’Regan J explained it in these terms:
'In the SCA Schutz JA held that this
was a case which calls for judicial deference. In explaining
deference, he cited with approval
Professor
Hoexter's
account as follows:
"(A) judicial willingness to appreciate the
legitimate and constitutionally-ordained province of administrative
agencies; to
admit the expertise of those agencies in policy-laden or
polycentric issues; to accord their interpretation of fact and law
due
respect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and the practical and
financial
constraints under which they operate. This type of
deference is perfectly consistent with a concern for individual
rights and a
refusal to tolerate corruption and maladministration. It
ought to be shaped not by an unwillingness to scrutinise
administrative
action, but by a careful weighing up of the need for
and the consequence of – judicial intervention. Above all, it
ought
to be shaped by a conscious determination not to usurp the
functions of administrative agencies, not to cross over from review
to appeal."’
[45] We need hardly remind ourselves that courts
do not control the public purse, nor do they have the power to
conscript the legal
profession to render services without reward. It
is for the other arms of government to ensure that adequate provision
is made
for legal representation at State expense. Here they have
chosen to do so through the LAB. Demands other than legal aid on the
public purse may limit the availability of funds. Courts should be
slow to attribute superior wisdom to themselves in respect of
matters
entrusted to other branches of government. As O’Regan J puts
it: ‘A decision that requires an equilibrium to
be struck
between a range of competing interests or considerations and which is
to be taken by a person or institution with specific
expertise in
that area must be shown respect by the Courts’.
39
The LAB is undoubtedly one such institution. The
legislature and executive need to appreciate, however, that if the
limitation of
available funds for legal representation at State
expense is too severe the administration of justice will
unquestionably suffer
and with it our constitutional order.
[46] Finally, nothing here stated should be construed as being
emasculatory of a court’s legitimate power of review. It is
now
well-established that the control of public power through judicial
review is a constitutional matter. Courts have a duty to
finally
determine whether public power has been lawfully exercised and they
would be failing in that duty were they to hold that
the validity of
the exercise of public power is beyond its jurisdiction. The
Constitution places significant constraints on the
exercise of public
power through the Bill of Rights and the founding principle
enshrining the rule of law.
[47] As Chaskalson P puts it:
'It is a requirement of the rule of
law that the exercise of public power by the Executive and other
functionaries should not be
arbitrary. Decisions must be rationally
related to the purpose for which the power was given, otherwise they
are in effect arbitrary
and inconsistent with this requirement. It
follows that in order to pass constitutional scrutiny the exercise of
public power by
the Executive and other functionaries must, at least,
comply with this requirement. If is does not, it falls short of the
standards
demanded by our Constitution for such action.'
40
[48] Rationality is thus the minimum threshold
requirement applicable to the exercise of all public power. Action
that fails to
pass that threshold is inconsistent with the
requirements of our Constitution and therefore unlawful. Thus whilst
courts should
not substitute their opinions as to what is appropriate
for those of the persons in whom the power vests, were a decision to
be
objectively irrational, a court would have the power to intervene
and set it aside.
41
[49] It follows on the view that I take of the matter that Borchers J
misconceived the nature and scope of her power. As she plainly
lacked
the power to order the LAB to provide each of the respondents with
two advocates in private practice to be remunerated in
accordance
with the maximum rates permitted by the legal aid tariff, that order
cannot be endorsed and it accordingly falls to
be set aside.
[50] In the result:
The appeal succeeds.
The order of the court below that the accused are entitled and the
Legal Aid Board is obliged to provide them with legal representation

at State expense is set aside.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: G M Budlender SC
42
L Crouse
Instructed
by:
Legal Aid
Board
Braamfontein
Bloemfontein
Justice Centre
Bloemfontein
For 1
st
Respondent: E M Coetzee SC
J M
Ferreira
Instructed
by:
National
Director of Public Prosecutions
Johannesburg
National
Director of Public Prosecutions
Bloemfontein
For 2
nd
and 3
rd
Respondents
Instructed
by
Lawley
Shein Attorneys
Johannesburg
Symington
& De Kok
Bloemfonteint
1
[1995] ZACC 5
;
1995
(3) SA 292
(CC) para 16.
2
Act
22 of 1969.
3
Section
3 was amended by the
Legal Aid Amendment Act 20 of 1996
, which came
into effect on 1 May 2002.
4
A
reference to Mr Budlender’s predecessor.
5
S
v Safatsa & others
1988 (1) SA 868
(A) at 877A-D;
Douglas v Douglas
[1996] 2 All SA 1
at 8j-9a.
6
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA
16
(A) at 24C-D.
7
Van
Jaarsveld v Bridges
(344/09)
[2010] ZASCA 76
(27 May 2010).
8
[2006] ZACC 15
;
2007
(1) SA 523
(CC) para 35 and 36.
9
In
Universal City Studios Inc & others v
Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA
734
(A) at 754G, Corbett JA put it thus: 'There is no doubt the
Supreme Court possesses an inherent reservoir of power to regulate

its procedures in the interests of the proper administration of
justice ....'; see also
Manong v
Minister of Public Works
2010 (2) SA
167
(SCA).
10
SABC
Ltd
para 21.
11
S
v Pennington & another
1997 (4) SA
1076 (CC).
12
Parbhoo
& others v Getz NO & another
1997
(4) SA 1095
(CC).
13
Legal
Aid Board v Pretorius
[2007] 1 All SA
458
(SCA) para 16.
14
The
section reads: ‘every accused person shall have the right to a
fair trial, which shall include to be represented by
a legal
practitioner of his or her choice or, where substantial injustice
would otherwise result, to be provided with legal representation
at
state expense, and to be informed of these rights.'
15
2002
(2) SACR 211
(SCA) para 11.
16
(1983)
7 CRR 39
at 41.
17
[2006] ZACC 24
;
2007
(3) SA 484
(CC) para 68.
18
(1988)
41 CCC (3d) 11.
19
Vermaas
para15.
20
R
v Munroe
57 CCC (3d) 421;
R
v Gauthier
2004 NLSCTD 137.
21
[1992] HCA 57
;
64
A Crim R 176
;
109 ALR 385.
22
Para
68.
23
[2005] ZACC 1
;
2005
(4) SA 581
(CC) para 29.
24
S
v Halgryn
2002 (2) SACR 211
SCA para 14.
25
S
v Tandwa
2008 (1) SACR 613
(SCA) para
7.
26
Phillips
& others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006
(1) SA 505
(CC) para 47.
27
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 37.
28
2009
(2) SACR 130
(CC).
29
See
fn 19.
30
(1994)
92 CCC (3d) 353.
31
[2000]
NJ no. 1110 (NfldTD) para 46.
32
[1994]
AJ no. 1018 (ALTA QB).
33
[2001]
OJ no. 1861 (Ont SCJ) para 56.
34
(2003)
686 A.R 271
para 29.
35
Legal
Aid Board v Pretorius
para 36.
36
2004
119 CRR (2d) 7.
37
Minister
of Environmental Affairs & Tourism and others v Phambili
Fisheries (Pty) Ltd and another; Minister of Environmental
Affairs &
Tourism and 0thers v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) para 50.
38
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 46.
39
Bato
Star
para 48.
40
Pharmaceutical
Manufacturers of South Africa: In re ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA
674
para 85.
41
Pharmaceutical
Manufacturers of South Africa
para 90
.
42
Mr
Budlender and Ms Crouse were only instructed to represent the LAB
after the matter was postponed by this court on 13 May 2010.
They
thereafter filed supplementary Heads of Argument dated 23 July 2010
and argued the appeal on behalf of the LAB on 16 August
2010.