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[2006] ZASCA 75
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Legal Aid Board v Pretorius and Another (332/05) [2006] ZASCA 75; [2006] SCA 81 (RSA) ; [2007] 1 All SA 458 (SCA) (31 May 2006)
Links to summary
Case no: 332/05
In
the matter between:
THE
LEGAL AID BOARD (EX PARTE)
Appellant
and
JOHAN
PRETORIUS
First Respondent
WILHELM
PRETORIUS
Second Respondent
________________________________________________________________
Coram
:
Harms,
Streicher, Navsa, Brand et Van Heerden JJA
Date of hearing:
22 May 2006
Date
of delivery:
31 May 2006
Summary
: Application
for leave to appeal â trial judge directing Legal Aid Board to
provide alternative legal representation on basis that
counsel
representing accused together with others had too heavy a workload to
provide effective representation â challenged by
Board on basis
that it is not within his power to do so â held that s 3B of the
Legal Aid Act 22 of 1969 was properly resorted
to by judge and that
it was within his province and power to ensure a fair trial â
application dismissed â matter struck from
the roll.
Neutral citation:
This judgment
may be referred to as
Legal Aid Board v Pretorius
[2006] SCA
81 (RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] This matter concerns the right to
legal representation at State expense. It has its genesis in the
assertion of constitutional
rights by two accused in a high profile
trial in the Pretoria High Court, which, in popular parlance, has
become known as the âBoeremag
treason trialâ.
[2] To enable a proper appreciation of
the background facts and an understanding of the conclusions reached,
it is regrettably necessary,
in relating the history of the matter,
to describe relevant communications between interested parties in
some detail and, in a number
of instances, to provide the entire text
of written communications.
[3] The two accused, Messrs Johan and
Wilhelm Pretorius (accused noâs 19 and 21, respectively) and many
others were charged with
treason, sabotage, terrorism, murder,
attempted murder and a range of other counts. I shall, for
convenience, refer to accused noâs
19 and 21 as J and W
respectively.
[4] The trial commenced on 19 May
2003. At its commencement J and W were represented by a legal
representative of their own choice
and at their own expense. During
May 2004, presumably after J and Wâs funds were exhausted, the
Legal Aid Board (the Board), which
is the statutory body and organ of
State established in terms of the Legal Aid Act 22 of 1969 (the Act)
that provides legal representation
at state expense to those who
qualify in terms of certain criteria, appointed Adv Brümmer
(Brümmer) to represent them.
Brümmer was also appointed to
represent 3 other accused, namely accused noâs 6, 7 and 20. By this
time the trial record comprised
more than 5000 pages and the police
docket consisted of 16 ring binder files, all of which Brümmer
was required to study and
consider.
[5] During November 2004 J and W
terminated Brümmerâs mandate, alleging that, because of his
workload, he was unable to devote
sufficient time to safeguard their
interests and that they had thus lost confidence in his ability to
represent them effectively.
He consequently withdrew as their legal
representative. Brümmer was required to report to the Board
concerning his reasons for
withdrawing, which he duly did.
[6] In Brümmerâs letter to the
Board, dated 22 November 2004, he explained that he had initially
thought that there might have
been a conflict of interests between
accused 20, on the one hand, and J and W on the other, and had
communicated this to the court
believing that it disqualified him
from continuing to represent any of these accused. Later, after W had
addressed the court, Brümmer
realised that his initial
impression was incorrect and that in effect J and W lacked confidence
in his ability to represent them
effectively.
[7] Whilst the trial proceeded on the
basis that issues were being dealt with that did not affect J and W
and that there was therefore
no
immediate
need for them to
have legal representation, the Board was nevertheless expected to
decide on its position concerning the termination
of Brümmerâs
mandate speedily.
[8] The Boardâs management took
legal advice and did not reach a quick decision. At the beginning of
December 2004 the trial had
reached a stage that made it imperative
that J and W be represented. The further cross-examination of a
crucial witness was postponed
pending a decision by the Board.
[9] On 3 December 2004, a senior
executive of the Board, Mr P J Brits (Brits), wrote letters in
identical terms to J, W and Brümmer.
Since this letter set out
the attitude of the Board which ultimately led to the present
litigation, it is necessary to quote it in
full:
â
Mr
Brümmerâs letter of 22 November 2004 refers.
There
is clearly not a conflict of interest between Mr Brümmerâs
clients.
Our Legal aid Guide
provides (chapter 3, paragraph 1.5):
â
(b)
An accused shall not be entitled, as of right, to the provision of a
second or subsequent legal practitioner on a legal aid basis
if the
accused has dismissed the first legal practitioner or has caused the
first legal practitioner to withdraw through lack of
co-operation or
otherwise, unless the accused can satisfy the CEO that the first
legal practitioner
was dismissed
or obligated to withdraw
for
good cause
.â
We
have now had the advantage of consulting with senior counsel who
confirms that what is set out in the Legal Aid Guide is a correct
interpretation of the Constitutional right to legal representation at
State expense.
No
facts have as yet been put to us that would constitute âgood causeâ
for either the dismissal of Mr Brümmer by Messrs J
Pretorius and
W Pretorius or for his withdrawal from their representation alongside
his other clients.
All
we have been told to date is that Messrs J Pretorius and W Pretorius
no longer enjoy a relationship of trust and confidence with
Mr
Brümmer. This conclusion has been presented to us without any
supporting facts. We in any event doubt whether our Constitution
guarantees any more than legal representation at State expense.
Mr
Brümmer or his clients are at liberty to present facts to the
Legal Aid Board in writing that would justify the appointment
of a
second legal representative.â â
(Emphasis added).
A copy of this letter was sent to the
trial judge (Jordaan J).
[10] In a letter dated 8 December
2004, after a consultation with a director of the Board and J and W
at C-max prison, Brümmer
wrote to the Board, confirming that in
representing five accused he was confronted by a workload he was
unable to manage effectively.
Brümmer provided details of the
many tasks he was expected to perform to properly represent the
accused. He recorded that, given
the magnitude of the trial, he was
required on a daily basis to complete a summary of all the evidence
to enable him to obtain instructions
from each of his clients. At
that stage he was dealing with more than 9000 pages of evidence. Each
client had to be individually
consulted to ensure confidentiality,
candour and trust. The consultations were not always restricted to
the merits of the trial.
They included consultations concerning
prison visits and transfers and bail applications â in the context
of this long-running
trial these issues arose repeatedly. It was also
expected of Brümmer to contact defence witnesses who are located
across the
length and breadth of the country, to arrange
consultations and to take witness statements. Brümmer emphasised
that he had reached
a stage where he just could not keep up with what
was required of him. He reached the conclusion that he could not do
justice to
his clients and could not afford them effective legal
representation. Brümmer criticised the Board for failing or
refusing to
understand the time and volume pressures under which he
was required to represent his clients. He recorded that J and W were
more
demanding than the other three accused he represented. He ended
the letter by stating that it was only fair that J and W be afforded
alternate representation by the Board.
[11] On 11 December 2004, W wrote to
the Board pointing out, inter alia, that Brümmer was unable to
devote as much time to his
case as was necessary for effective
representation. He stated that Brümmerâs workload was far too
heavy, that he lacked time
to perform essential tasks and was
therefore unable to provide effective legal representation.
[12] On 11 January 2005 Brits wrote to
W, stating that that it was the Boardâs policy that an accused who
had no good cause for
dismissing his legal representative may be
required to represent himself and that a mere lack of trust and
confidence did not in
itself constitute good cause. He also stated
that an accused who sought to have a second or subsequent legal
representative appointed
by the Board would have to âshow factsâ
from which it could be deduced that good cause had been established.
In respect of Wâs
assertion that Brümmer lacked time for
preparation, Brits suggested that the appropriate remedy was for
Brümmer to request
the court to adjourn to enable him to do what
was necessary. Brits stated further that he had consulted a Board
employee, Ms Veenendal
(who, from the letter, appears to have been in
attendance at the trial) who had informed him that Brümmer was
not, as suggested
by W, unprepared to cross-examine a witness, a Mr
Van Zyl. Brits went on to state that Brümmer had been prepared
when he cross-examined
Mr Crous, an essential witness. (In his
judgment dealing with J and Wâs right to separate representation
the judge recorded that
this statement by Brits was incorrect as
Crous had at that stage not yet been cross-examined by Brümmer.)
[13] Following on these exchanges J
and W informed Jordaan J that they intended to bring an application
in terms of s 38 of the Constitution
to compel the Board to recognise
their right to effective legal representation which was an essential
component of the right to a
fair trial.
[14] On 22 January 2005 Brits wrote an
uncompromising letter to Brümmer, the material parts of which
appear hereunder:
â
Your
contract with the Legal Aid Board is for the representation of five
accused. You are currently representing three accused. The
situation
is untenable. Your erstwhile clients could be prejudiced.
In
the circumstances the Legal Aid Board offers to release you from your
contract with immediate effect and with no claims on either
side
except such claims as you may have for outstanding fees.
Alternatively,
you are required to immediately recommence representation of accused
19 and 20 alongside your other clients. In the
event of your clients
refusing to be represented by you, the Legal Aid Board would require
an unequivocal written assurance that
you are willing and able to
represent all five of the clients you contracted to represent.
Further alternatively, in
the event of you failing to recommence compliance with your
contractual obligations by 10:00 on Friday 2005,
the Legal aid Board
will elect to accept your repudiation of your contract as evidenced
by your breach of the terms thereof. The
Legal Aid Board will
thereafter proceed to appoint another legal practitioner to represent
the five clients formerly represented
by you.â
[15] To enable J and W to bring the
proceedings referred to in para [13], Jordaan J contacted the
Pretoria Bar, with a request that
it appoint
pro bono
counsel
in this regard. Adv Klein was duly appointed. In the interim, W
debated with the trial judge as to whether the trial should
continue
even though witnesses were testifying about events in which he and J
were not directly implicated. He pointed out that the
question of
common purpose was a continuing important issue in the trial. Jordaan
J recognised that to continue without J and W being
legally
represented would cause problems and might prejudice them. He
undertook, in the event of alternative legal representation
being
procured, to allow both of them to recall witnesses for further
cross-examination. At this stage the learned judge was rightly
concerned about the integrity of the trial.
[16] During the first half of February
2005 Adv Klein lodged a âversoek van beskuldigdes 19 en 21 dat die
hof in terme van artikel
3B van Die Wet op Regshulp 32 van 1969
optreeâ.
S3B(1)
of the Act reads as follows:
â
(1) Before
a court in criminal proceedings directs that a person be provided
with legal representation at State expense, the court
shall â
(a)
take
into account â
(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.â
Of
course, this subsection should be seen against the Boardâs objects,
as set out in s 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 a fair trial as contemplated in s 35(3)(g) of the
Constitution, is met.
[17] Section 3B(2) of the Act reads as
follows:
â
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 â
(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.â
[18] On 14 March 2005 Jordaan J wrote
to the Board. It is necessary to quote the letter in full:
â
Mr
Brümmer was instructed by the Legal Aid Board to represent
accused nos 6, 17, 19, 20 and 21.
As
you are aware accused nos 19 and 21 are of the opinion that the
workload on Mr Brümmer is too heavy which results in them
not
being effectively represented in this case.
As
a result thereof they indicated during November 2004 that they no
longer wish to be represented by Mr Brümmer. Since November
2004
accused nos 19 and 21 have been appearing in person.
The
circumstances of this case may warrant that a direction in terms of
section 3B of Act 22 of 1969 (as amended) be made that accused
nos 19
and 21 be provided with alternative counsel. I am therefore
considering such a direction and hereby refer the matter to you
for
evaluation and report.
I shall appreciate it if
you would take the following into consideration:
(i) It is common cause
that the personal circumstances of the accused justifies the
appointment of legal assistance to them at state
expense.
(ii) The
nature and gravity of the charges speak for themselves. The charges
include high treason and murder to mention but two of
the 43
charges.
(iii) Although
Mr Brümmer has been instructed by the Legal Aid Board to appear
on behalf of accused nos 19 and 21 the practical
situation is that
they are at the moment unrepresented.
Prima facie
I am of
the view having regard to the evidence that has been led so far
before me, that the perception of the accused that the workload
of Mr
Brümmer is too high to represent all five of the accused
assigned to him, is not without merit
. I am further of the
opinion that what is envisaged by the Constitution and the Legal Aid
Act is that
effective
legal representation be provided at
state expense to an accused.
(iv) Substantial
injustice may well result if the present situation is allowed to
persist, and if the situation persists it may well
be argued that
the accused did not have a fair trial in the event of them being
convicted. I am of the view that the case against
accused nos 19 and
21 should not proceed without at least considering a direction that
other counsel be provided at state expense.
A direction in terms of
section 3B would not necessarily mean that a new counsel or attorneys
be appointed on their behalf as there
are legal representatives
appearing at present in the case available to represent them without
the danger that there will be a conflict
of interests.
I hereby direct that the
report reach me within two weeks from date hereof.â
(Emphasis added).
[19] On 17 March, by which time the
impasse had not been resolved, one of the other accused in the trial
brought an application in
which J and W had an interest. It now
became essential that they be represented.
[20] On 7 April 2005 the attorney
representing the Board replied to Jordaan J:
â
. . .
Our
client has carefully considered the contents of this letter and is of
the respectful view that:
1. It
has complied with its obligations in terms of the Constitution and
the Legal Aid Act to provide accused noâs 19 and 21
with legal
representation at their trial. This was done by appointing Adv BJ
Brümmer to represent them.
2.
Inasmuch as Adv Brümmer has indicated in open court that he is
willing and able to continue to represent accused 19 and
21 and
further, inasmuch as it is common cause that Adv Brümmer has
provided these two accused with proper and effective
legal
representation at their trial, their reasons for stating that they
no longer wish him to act on their behalf are without
foundation.
Accused
19 and 21 have been advised that the Legal Aid Board is prepared to
continue to instruct Adv Brümmer to appear on
their behalf,
but they have elected not to accept this offer. This offer was
conveyed to the accused by Adv Klein who also conveyed
their
decision to the Boardâs representative.
We
are also, in this regard, instructed to respectfully draw your
attention to the provisions of Section 1(5)(b) of Chapter 3
of the
Legal Aid Guide which reads as follows:
.
. .
It
is the Boardâs contention that accused noâs 19 and 21 have not
satisfied its CEO that Adv Brümmerâs services were
terminated for good reason.
It
is therefore the Legal Aid Boardâs respectful view as conveyed to
the court, that if accused 19 and 21 are dissatisfied with
the
Boardâs decision to continue instructing Adv. Brümmer to
act on their behalf and not to appoint a new legal representative
for them, it is open for them to take the decision on review
before an appropriate court. The Board agrees that it is common
cause
that accused 19 and 21 are entitled to legal assistance at
state expense. It is for this reason that Legal Aid was granted
to
them and Adv Brümmer was appointed. It is respectfully
submitted that the question in issue at this stage is whether in
the
circumstances which prevail the Board is obliged to appoint a
second legal representative. In the circumstances it is the
Boardâs contention that Section 3B of the Legal Aid Act
has no application in this matter at this stage because the
Board
has already appointed Adv Brümmer to represent accused Noâs
19 and 21 and is prepared to continue to do so. If these
accused
elect not to accept the Boardâs decision as stated above, it is
open for them to take the Boardâs decision on review.â
[21] Jordaan J decided that the
question of the applicability of s 3B of the Act should be argued
before him. Another request for
assistance was made to the Pretoria
Bar, which responded admirably. Senior and junior counsel were
assigned to represent J and W
on this issue.
[22] The Board was represented and
persisted in its position as reflected in its last written
communication to the trial judge. The
Board
chose
not to
provide a report to the court below, contending that s 3B of the Act
was inapplicable. The Board submitted that, in the event
the court
decided otherwise, it should then be afforded an opportunity to
provide a report. This was ultimately rejected by the judge
who held,
that given the Boardâs intractable attitude as reflected in the
correspondence, no purpose would be served by doing so.
[23] The Board adopted the attitude
before Jordaan J that J and W ought to have taken the Boardâs
decision not to provide alternative
representation on review and that
that was the only path through which they might secure relief.
Jordaan J rejected this too, stating
that review proceedings were
time consuming and expensive and therefore inaccessible to indigents.
[24] In his judgment on the issue
Jordaan J considered that an indigent accused could apply for legal
aid in the conventional manner
or a court could, following the
prescripts of s 3B of the Act, direct that representation be afforded
to him. In his view the provisions
of s 3B did not bind a court to
the recommendation or report by the Board. He accepted that in making
such a recommendation the Board
was bound to follow the Legal Aid
Guide in determining whether such a person met the criteria for the
provision of legal representation
at state expense. In his view the
court was not so bound. He stated further that when a court decided
to make a direction in terms
of s 3B the provisions of the Legal Aid
Guide are no longer applicable.
[25] Jordaan J rightly held that the
provisions of s 3B had to be construed against the fundamental rights
guaranteed in the Constitution.
He went on to consider the stage the
trial had reached and the attitude of the leader of the prosecution,
a senior advocate and a
deputy director of public prosecutions who
expressed himself on the issue as follows:
â
[D]it
word gevra dat twee onverdedigde beskuldigdes hulself moet hanteer,
die staat sê eenvoudig dit kan nie gebeur nie en dan
daarna
gesê word dit is ân billike verhoor nie. Dit is net
onmoontlik . . . [D]ie hof moet onthou . . . mnr Brümmer
het
aanvaar. Hy het sy werk begin doen en toe op ân stadium . . . gesê
. . . ek kan nie verder nie.â
[26] In his judgment, Jordaan J
observed that the legal issues in the case were of a complex nature
and that the law of common purpose
is a minefield, even for an
experienced jurist. In the trial he would be called upon to consider
whether J and W were responsible
for acts committed by others in
their absence. The question might arise whether, on the evidence,
they are guilty of attempted murder
on President Mandela or whether
any acts found to be perpetrated by them were merely preparatory
acts. Foreseeability might also
become an issue. The
evidence-in-chief of Crous, the witness implicating them directly,
runs into almost 500 pages. His uncompleted
cross-examination
consists of approximately 1000 pages. The judge stated the following:
â
To
expect of a layman to cross-examine him, is asking the impossible.
As
presiding judge who is acquainted with the evidence led so far, I
state that as a fact categorically.
â
(Emphasis added).
[27] The following part of the
judgment is significant:
â
Neither
I, nor the Legal Aid Board, are privy to the nature and magnitude of
Mr Brümmerâs instructions from the accused. I
can only draw
from what I have seen and heard in this case so far and my experience
in the law as practitioner and judge. The evidence
of Crous alone led
me to the conclusion that the fears of accused noâs 19 and 21 that,
in spite of the apparent abilities of Mr
Brümmer, they will due
to his workload, not be effectively represented, are well founded.â
[28] In the result, Jordaan J held
that that the representation provided by Brümmer could not be
said to constitute effective
representation, and, since that standard
was required by the Constitution, he made the following order:
â
In terms of section 3B
of the Legal Aid act, in the interests of justice and in order to
ensure that this trial will remain fair,
I direct that accused noâs
19 and 21 be provided with alternative legal aid at state expense
forthwith.â
[29] The Board provided the
alternative representation as directed. They nevertheless applied for
leave to appeal on the basis that
the issue was one of principle that
was wrongly decided and that it should be reconsidered on appeal. The
court below refused to
grant them leave to appeal. This matter is
before us in terms of a direction of this court, in terms of s
21(3)
(c)
(ii) of the Supreme Court Act 59 of 1959, that the
application for leave to appeal is referred to oral argument and that
the parties
be prepared, if called upon to do so, to address this
court on the merits.
[30] In 1988 Didcott J in
S v
Khanyile
1988 (3) SA 795
(N) asked the following question (at
810G-H):
â
And
if a lawyerâs participation is deemed essential to the fair trial
of somebody who has one either at hand or in mind, why should
it be
thought inessential to the fair trial of a man with nobody to whom to
turn because he cannot afford the expense?â
At
815D-F, in arriving at his conclusion that to deny legal
representation in certain circumstances might render a trial unfair,
the
learned judge followed the approach adopted earlier in the United
States of America, in the case of
Betts v Brady
(1941) 316 US
455
(the right to representation has since been widened in that
country
1
).
He held that in order to decide whether a trial was vitiated by a
lack of legal representation a court had to take into account
three
factors:
(i) the
inherent simplicity or complexity of the case;
(ii) the
degree of intelligence, maturity and abilities of the accused;
(iii) the
gravity of the case.
These
considerations are presently telescoped in the provisions of s
3B(1)
(a)
of the Act.
[31] Of particular significance is the
following passage from
Khanyile
(at 815I-816D):
â
What
should be done in every trial . . . in which the person charged
enters the dock with no lawyer defending him not because he has
chosen freely and deliberately to dispense with one, but because he
is too poor to pay for him[?] . . .[T]
he judicial officer
should examine all three aspects of the matter and illicit all the
information which has a bearing on them.
He
should weigh the
circumstances thus established by or otherwise apparent to him,
together with any more of which he learns that are
particular and
pertinent to the case on hand. And
he
should ask himself
whether their cumulative effect is such that the man would be placed
at a disadvantage palpable and gross, that
the trial would be
palpably and grossly unfair, were it to go ahead without a lawyer for
the defence. . . . If
he
answers the question in the
affirmative,
he
should refer the case at once to those
administering the legal aid scheme or to one or another of the
various associations of lawyers
that are willing and keen nowadays to
offer assistance
pro bono
.
He
should decline to proceed
with the trial, furthermore, until representation is procured through
some such agency.
(Emphasis added).
[32] Subsequently, in
S v Rudman; S
v Mthwana
1992 (1) SA 343
(A), this court had the opportunity to
consider the
Khanyile
decision. It was called upon to decide
to what extent the state should be obliged to provide legal
representation
to accused persons. This court failed
to confirm the
Khanyile
âruleâ, holding (at 377B-C):
â
The
Court of Appeal does not enquire whether the trial was fair in
accordance with ânotions of basic fairness and justiceâ, or
with
âthe ideas underlying . . . the concept of justice which are the
basis of all civilised systems of criminal administrationâ.
The
enquiry is whether there has been an irregularity or illegality, that
is a departure from the formalities, rules and principles
of
procedure according to which our law requires a criminal trial to be
initiated or conducted.â
[33] Our new constitutional
dispensation changed the landscape dramatically. Section 25(3)
(e)
of the interim Constitution read as follows:
â
Every
accused person shall have the right to a fair trial, which shall
include the right â
. . .
(
e
) 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.â
In
Tshabalala & Others v Attorney-General of Transvaal &
Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC) para 28-29 Mahomed DP considered the
above quoted dictum from
Rudman
and observed that the
Constitution imported a radical movement away from the previous state
of the law. We are primarily and continuously
concerned with basic
notions of fairness and justice. These are values that underpin our
Constitution.
[34] Section 35(3)
(g)
of the
Constitution provides that every accused person has the right to a
fair trial, which includes the right âto have a legal
practitioner
assigned to the accused person by the state and at state expense, if
substantial injustice would otherwise result, and
to be informed of
this right promptly;â. In deciding whether substantial injustice
would otherwise result if legal representation
at state expense is
not provided, the factors set out in s 3B(1)
(a)
must of
necessity be considered.
[35] The material part of s 38 of the
Constitution reads as follows:
â
Anyone
. . . has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened,
and the
court may grant appropriate relief, including a declaration of
rights. . . .â
[36] This general power granted to
courts should be seen against the duty of judicial officers to ensure
that criminal trials are
conducted in accordance with notions of
fairness and justice. Section 3B recognises the role of a court in
criminal proceedings to
ensure that a trial is fair. A court which
decides at the commencement of a criminal trial or in
media res
that substantial injustice might result if a legal representative is
not assigned at State expense has the power, in terms of the
Constitution, to make an order to that effect. Section 3B fits in
neatly with the constitutional scheme.
[37] Section 3A(1)
(b)
makes the
Legal Aid Guide binding on the Board, its offices and employees.
Section 3A(3) provides:
â
Whenever
the Board considers an application for the rendering of legal aid,
other than a matter referred to the Board in terms of
section 3B(1),
and whether the application is made in terms of section 25(1)
(c)
or (3)
(e)
of the Constitution or otherwise, the Board shall
apply the provisions of the Legal Aid Guide.â
This
subsection recognises that the Boardâs functions and operations are
distinct from the responsibilities of a trial judge when
he or she
considers whether to issue a direction in terms of s 3B(1). It does
not oblige the trial judge to follow the Legal Aid
Guide in deciding
whether an accused is entitled to legal representation. Naturally, in
terms of s 3B, a trial judge has to consider
the report by the Legal
Aid Board and will take into account what the Board has to say.
[38] Section 3B(2)
(a)
it will
be recalled, obliges the Board, in reporting to the court, to provide
its evaluation and report âsubject to the provisions
of the Legal
Aid Guideâ. This provision too, deals with the Boardâs
obligations and not the judgeâs role in regulating the
trial.
[39] There
is no force in the submission by counsel for the Board that, by
making the order in question, Jordaan J usurped the Boardâs
statutory authority. It is common cause that J and W qualify for
legal representation at State expense and that substantial injustice
might arise if J and W continue participating in the trial without
legal representation. The Board, on the one hand, and counsel
for the
defence and the State on the other, differed and continue to differ
on whether J and W were entitled to insist that, because
Brümmer
has too great a work volume, they were entitled to alternative legal
representation.
[40] Jordaan J was rightly concerned
about the integrity of the trial. The learned judge, motivated as he
clearly was by considerations
of fairness and justice, sought the
Legal Aid Boardâs views on whether he should issue a directive in
terms of s 3B. His intimate
knowledge of the trial led him to present
his prima facie views to the Board concerning the question of
whether, in the circumstances,
Brümmer could represent J and W
effectively. The Board chose, after taking legal advice, to submit
that s 3B was inapplicable
and that J and Wâs remedy lay in a
review.
[41] The constitutional right to
counsel must be real and not illusory and an accused person has the
right to a proper, effective
or competent defence. See
S v
Halgryn
2002 (2) SACR (SCA) para 14. This must now be considered
axiomatic.
[42] In the event of a mistrial due to
lack of effective representation the responsibility lies at the door
of the trial judge. Jordaan
J was not usurping the Boardâs powers
or taking over its tasks and responsibilities. He was intent on
ensuring a fair trial for
J and W. It has not been suggested, nor can
it be, that his concerns were not genuine. These concerns were shared
by Brümmer
and by the State. Jordaan J was acting within his
constitutional duties as a judge in a criminal trial. In this regard
the dictum
from
Khanyile
quoted in para [32] above is
apposite. His conduct was commendable.
[43] The
learned judge was correct to reject the notion that review of the
Boardâs decision was the only appropriate remedy on the
basis of
the reasons stated by him in para [24] above. Furthermore, it should
be borne in mind that criminal trials, particularly
one such as the
trial in question, should be expedited rather than sidetracked. In
any event, as pointed out repeatedly above, a
decision on the
fairness of a trial is rightly within the province and power of the
presiding judicial officer. Jordaan J was correct
to resort to the
provisions of s 3B of the Act. The Board was wrong not to respond and
provide the report and evaluation envisaged
in that section. The
responsibility and the power to issue a direction in terms of that
section vests ultimately in a court. In the
present case the Board
acquiesced in the order made by Jordaan J. Its present endeavours are
based on a misconception of a trial
judgeâs powers and of its own.
[44] I pause to record this courtâs
appreciation of the appearance by adv G T Langenhoven,
pro amico
on behalf of J and W in the best traditions of the
Bar.
[45] For all the reasons stated, it is
clear that the standard test for granting leave to appeal has not
been satisfied. Consequently
the application for leave to appeal is
dismissed and the matter is struck from the roll.
_________________
M
S NAVSA
JUDGE
OF APPEAL
CONCUR:
HARMS
JA
STREICHER JA
BRAND JA
VAN
HEERDEN JA
1
In
Gideon v Wainwright
[1963] USSC 42
;
(1963) 372 US 335
the court held that all
persons charged with a serious crime were entitled to
representation. In
Argersinger v Hamlin
[1972] USSC 139
;
(1972) 407 US 25
it
was held that no person may be imprisoned for any offence whether
classified as petty, misdemeanour or felony, unless he was
represented by counsel at his trial.