LCPR3705

UNIT 4
THE RIGHT TO LEGAL ASSISTANCE
Compiled by Adv. Inez Bezuidenhout (2024)
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Refer to Chapter 4 of the textbook, page 98 to 117.
• Refer to page 32 of the study guide.

Unit overview:
This unit deals with the constitutionally entrenched right to legal assistance. In this unit, the
student will use section 35 of the Constitution of the Republic of South Africa, 1996 as the
foundation. The unit will focus on aspects of ethical lawyering in circumstances where the
legal representative will face moral dilemmas to assist the accused. The unit will focus on the
right to legal assistance during the various stages of the criminal process. The unit provides
an in-debt focus on the specific duties expected of the different role-players in the criminal
process as it relates to the right to legal representation. The unit will also focus on instances
where a withdrawal of legal representation could be warranted. The unit further deals with
the meaning of what can be regarded as competent legal representation. A broad overview
will be provided of legal representation for children in conflict with the law during the
various stages of the criminal process.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Unit outcomes:
On completion of this study unit you should be able to:
• Understand and explain the concept of ‘substantial injustice’ as it pertains to legal representation.
• Understand and substantiate the right to legal representation during the distinct stages of the criminal process.
• Differentiate between the various stages of the criminal process as it pertains to the right to legal representation.
• Understand, explain, and criticise the duties of the various court officials in the provision of legal representation during the
different stages of the criminal process.
• Provide examples by way of the case law of the interpretation of the right to legal representation during the distinct stages
of the criminal process.
• Discuss the instances where the withdrawal by a legal representative may be required.
• Apply the ethical rules of the various legal professions to a situation where a legal representative defends the admittedly
guilty person.
• Identify the correct interpretation of competent legal representation by way of case law.
• Discuss legal representation in terms of the Child Justice Act 75 of 2008 during the various stages of the criminal process.
• Apply the theoretical knowledge of this unit to a set of facts.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Please note that we will specifically focus in this lecture on the

aspects which are important for the test and the assignment; however,
this topic is of particular importance for your future career in law:

 The Board Examination for Legal practitioners;

 In the daily dealings of the SAPS, Judiciary; Magistrates; Prosecutors;

and legal practitioners who appear in criminal cases.

UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Introduction and Concentrate on the following
questions for test and assignment
historical background purposes:
• Refer to paragraph 1 on page 101 • Understand the guiding principles
to 102 of the textbook. of the right to legal assistance
• You need to study this paragraph from an international and
for test and assignment purposes. regional human rights perspective
as it pertains to the position in SA.
• We will discuss this paragraph in
the lecture. • Long and shorter questions based
on the theory contained in the
text book.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Ethical lawyering Concentrate on the following
questions for test and assignment
• Refer to paragraph 2 on page 102 purposes:
to 103 of the textbook. • Define and understand the meaning
• You need to study this paragraph of “legal ethics” as it pertains to the
right to legal assistance.
for test and assignment purposes.
• Representation of clients despite the
• We will discuss this paragraph in legal representative’s sentiments that
the lecture. the case is a hopeless one.
• The importance of ethical lawyering.
• Long and shorter questions based on
the theory contained in the text book.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Ethical lawyering explained:

 Legal ethics = ‘ that system of rules which by mutual

consent is observed by members of the legal profession as
the standard by which to determine the propriety of their
conduct and relationship towards their clients, the courts
and other members of the profession” (Robbins A, 1913: p.
249)

 McLaggan 2013 (1) SACR 267 (ECG) at [11] : Failure to adhere

to the high standards expected of members of the legal
profession = a failure to serve the best interests of the clients
concerned.

 Negondeni [2015] ZASCA 132 : An important manifestation of

ethical lawyering is lawyers’ duty to represent the interests of
their clients to the best of their ability, ‘even if they privately
consider the case to be a hopeless one’.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• The effect of section 35 (2)(c) and (3)(g) of the
Constitution:

 Arrested and accused persons MUST be provided with legal

representation at the expense of the state IF substantial
injustice would otherwise result.

 Substantial injustice = no definition in the constitution/ CPA,

but explained in Lombard 1994 (3) SA 776 (T): An accused
who is charged with an offence in respect of which he may be
sentenced to imprisonment if convicted, and who cannot afford
legal representation, should be entitled to legal representation
at state expense.

 Vermaas; Du Plessis 1995 (3) SA 293 (CC): An accused

must accept the legal representative appointed by the state
and has no choice as to the latter’s identity.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Legislative framework for legal

assistance in criminal
proceedings:

 Sections 35(2) and (3) of the

Constitution

 Sections 73(1), (2) and (2A) – (2C),

as well as 73(3) of the CPA

 Sections 80; 81 and 82 of the CJA

UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
The right to assistance in Concentrate on the following
questions for test and assignment
the pre-trial stage of the purposes:
criminal procedure • How the right to legal
• Refer to paragraph 3 on page 103 representation is practically
to 105 of the textbook. applied in the pre-trial stages of
the criminal procedure.
• You need to study this paragraph
for test and assignment purposes. • Long and shorter questions based
on the theory contained in the
• We will discuss this paragraph in
text book.
the lecture.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
THE RIGHT TO ASSISTANCE IN THE PRE-
TRIAL STAGE OF THE CRIMINAL
PROCEDURE..

• You need to know the principles which apply

and be able to substantiate the principle with
case law.

• For example: You may be required to “mix” and

“match” the principle with the relevant case
law: Match the information in column A with the
information in column B, for example: 1.1 C
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
The right to
Concentrate on the following questions for test and
assignment purposes:
• How the right to legal representation is practically applied in

assistance during
the trial stages of the criminal procedure.
• The sections from the CPA, the CJA and Constitution that
regulates this right.

the trial •

•
What is the role of the court in providing legal assistance to
the accused?
What are the limitations to this right?
• Refer to paragraph 4; 4.1; 4.2; 4.3 • What will happen if the court fails to inform the accused of
and 4.4 on page 105 to 107 of the his right to legal representation?

textbook. • What is the role of the legal representative in terms of this

right?

• You need to study this paragraph • What is the position relating to the undefended accused in
terms of this right?
for test and assignment purposes. • Use the case law cited in the textbook as authority for your
statements.
• We will discuss this paragraph in • Long and shorter questions based on the theory contained in
the lecture. the text book.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
THE RIGHT TO ASSISTANCE DURING THE  Briefly discuss why the judicial officer needs to
understand an unrepresented accused’s choice to
TRIAL…
appear in person in instances where the accused is
• Please ensure that you study the subparagraphs in
facing a serious charge. (up to 4 marks)
such a manner that you do not get confused.
 Critically discuss the following statement: “If there is
• Para 4.2 – here are some possible questions which you
no legal representative available at a specific court, the
need to know for the test:
case will proceed without representation”. (up to 3
 Critically discuss the role of the court to inform the marks)
unrepresented accused of his right to legal
representation. (up to 10 marks)
You must be able to know the case law in this
 Briefly discuss the consequences of the failure on the
part of the judicial officer to explain to the paragraph for authority. In other words, you
unrepresented accused his rights to legal must be able to name the case to substantiate
representation. (up to 5 marks) your answer.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Discussion on specific circumstances where a legal representative should

withdraw from a case.

 Refer to page 107 to 108 of the textbook, paragraphs 5; 5.1; 5.2; and 5.3.

 You need to study these paragraphs for test and assignment purposes.

 Conflict of interest: Two or more accused represented by one lawyer – para 5.1 on page 107;

 Contradictory instructions from the client – para 5.2 on page 108;

 The court’s duty towards the accused where the accused’s legal representative withdraws –

para 5.3 on page 108.

UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
 Conflict of interest – para 5.1 on page 107 to 108 explained:

• One legal representative may represent more than one accused in the same case. Ethical problem where a conflict of interest arises between two/ more
accused who are represented by the same legal representative.

• Legal representative must then withdraw from the case = not merely from the representation of one of the accused, but from representation of all the
accused.

• Dintwe –case explains the reasons for the above withdrawal from the whole case:

• “If the legal representative continues to represent one of the accused, he will be obliged to cross-examine the other as well as, possibly other
witnesses, …” – in other words: Cross-examine the accused which he represented up to the point where he withdrew from the case.

• “…he cannot do this properly without making use of information gained from his former client, the other accused.” – remember that what is said in
a consultation between a legal representative and his client is privileged information.

• “…To make use of such information would amount to a flagrant breach of confidential attorney-client relationship which the law jealously
protects.”

• “On the other hand, he may find that, in attempting not to prejudice his former client, he limits his cross-examination to the prejudice of the
accused whom he is continuing to represent.” – in other words: it may amount to prejudice against not only the person which he cross-examines, but
also the person he is defending whilst cross-examining.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Ngcula [2015] case:

• Before the commencement of the trial a presiding officer

should ascertain whether the legal representative who

represents more than one accused foresees a possible
conflict of interest between the different accused.

• If this is indeed the case, it should be disclosed and considered.

UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
 Contradictory instructions from the client – para 5.2 on page 108 explained:

• Legal representative should withdraw from a case where his client:

• Misleads him OR

• Makes it impossible for the legal representative to take proper instructions.

• In instances where the legal representative concludes that he or she should withdraw from the case on ethical grounds: It would be improper
conduct if the legal representative provides detailed reasons why he or she wishes to withdraw from the case.

• Case law which substantiates the latter: Groenewald v Regional Magistrate, Ladysmith.

 The court’s duty towards the accused where the accused’s legal representative withdraws – para 5.3 on page 108.

• Where a legal representative withdraws from a case the presiding officer should find out from the accused if he/she wish to appoint another
legal representative.

• Should the accused choose not to have another legal representative, the court should enquire whether the accused wish to conduct his own
defence, or whether the accused should be referred to legal aid for assistance. – Kok case
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• DEFENDING THE ADMITTEDLY GUILTY

• Refer to page 108 to 109 of the textbook, paragraph 6.

• You need to study this paragraph for test and assignment purposes.

• Every law student and every practicing lawyer can expect, sooner or later, the following question
from a family member, a friend, or a member of the public: Will you defend a guilty person?
 How do you answer this question? = A legal practitioner should not decide whether his client is guilty or
not.
 The responsibility of the court to determine guilt, based on the evidence presented in court.
 But, ethical dilemma is presented in a situation where a client makes a confession to his legal
representative before/during the criminal trial.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
How to proceed when your client makes a confession to his legal
representative BEFORE or DURING the trial = (my summary)
Refer to page 108 to 109 of the textbook, paragraph 6. You need to study this paragraph for test and assignment purposes.

1. Explain to your client that you can only proceed to assist him in the case in the following way:

2. You may not make statements that you know are false.

3. You may challenge the evidence presented in court by the State “on a technical basis”.

4. Argue (if it is the case) that the evidence is insufficient to support a conviction.

5. Use legal authority to substantiate your submissions.

6. You may not make submissions which is contrary to what your client confessed to you.

7. Your client should decide whether he still wants to proceed with your assistance. He must agree to the basis on which
you will proceed. If not – you should withdraw from the case.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
COMPETENT LEGAL REPRESENTATION
• Refer to page 109 to 111 of the textbook, paragraphs 7; 7.1; and 7.2

• You need to study these paragraphs for test and assignment purposes

• The substantive quality of legal services rendered.

 Tandwa 2008(1) SACR 613 (SCA) at [7]:

• “Incompetent lawyering can wreck a trial, thus violating the accused’s fair trial right. The right to legal representation therefore
means a right to competent representation – representation of a quality and nature that ensures that the trial is indeed fair. When
an accused therefore complains about the quality of legal representation, the focus is no longer, as before the Constitution, only on the
nature of the mandate the accused conferred on his legal representative, or only on whether an irregularity occurred that vitiated the
proceedings – the inquiry is into the quality of the representation afforded.”

 Legal problems are not always “clear-cut” – the correct/ appropriate legal advice not always self-evident.

 Competent lawyering implies a high standard and a duty to always act in the best interest of the client.

 Incompetence = a factual question.

 Lack of basic legal knowledge = incompetence.

 Negondeni [2015] ZASCA 132 at para [16]: “… apparent lack of awareness about the minimum sentencing provisions … is indicative of
the fact that the appellant did not have the quality of legal representation that one could reasonably expect, …”

 The right to competent lawyering extends to the pre-trial legal representation as well.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Please note that we will not deal with the part on “The legal representative’s control of the
defence case” – para 8; 8.1; 8.2; and 8.3 on page 111 to 112 of the textbook.

• The reason why we do not deal with this part of the textbook is because it is advanced
knowledge, but you may want to read through it for purposes of general advocacy skills
and practical application in the future.

• Please note that we will not deal with the part on the “Accessibility of legal representation/
Legal assistance at the State’s expense” for purposes of this module. (Para 9 and 9.1 on
page 112– 114 of the textbook).

• This part of the textbook explains how Legal Aid South Africa (formerly known as the Legal
Aid Board) is assigned to cases and in which instances.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Legal representation
of children
• Refer to page 114 to page 116 of
the textbook, paragraphs 10; 10.1;
10.2; 10.2.1; 10.2.2; 10.2.3; and
10.2.4.
• You need to study these
paragraphs for the test and
assignment purposes.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
CJA PROVISIONS:
 Section 80(1) of the CJA:

“A legal representative representing a child must –

(a) Allow the child, as far as is reasonably possible, to give independent instructions concerning the case;

(b) Explain the child’s rights and duties in relation to any proceedings under the Act in a manner appropriate to the
age and intellectual development of the child;

(c) Promote diversion, where appropriate, but may not unduly influence the child to acknowledge responsibility;

(d) Ensure that the assessment, preliminary inquiry, trial and any other proceedings in which the child is involved
are concluded without delay and deal with the matter in a manner to ensure that the best interests of the child are
always accorded paramount importance; and

(e) Uphold the highest standards of ethical behaviour and professional conduct.”
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Section 82(2) of the CJA:

Child to be provided with legal representation at State expense in certain instances:

“(1) Where a child appears before a child justice court in terms of Chapter 9 and is not
represented by a legal representative of his or her own choice, at his or her own expense the
presiding officer must refer the child to Legal Aid South Africa…

(2) No plea may be taken until a child referred to in subsection (1) has been granted a reasonable

opportunity to obtain a legal representative or a legal representative has been appointed.”

In other words: If the child does not have a legal representative,
the court will ensure that a legal representative is appointed.
Adult accused can choose whether they want to be legally represented.
Children have no choice. They must be legally represented.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Legal assistance in the pre-trial stage explained:

 Children are only arrested and detained in limited circumstances, but ALL

children are assessed by a probation officer (PO) in the pre-trial stage.

 Section 34(2) of the CJA: Before a preliminary inquiry (PI), a PO assesses

a child, unless the matter has been: Diverted by a PP before the PI OR

The inquiry Magistrate has dispensed with the assessment if it is in the
best interest of the child to do so.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• What is the purpose of this assessment?
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Persons to attend the assessment:
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
• Powers and duties of PO at assessment:
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
CONFIDENTIALITY OF THE INFORMATION
OBTAINED AT ASSESSMENT

• Section 36 of the CJA

• Any information obtained at an assessment is confidential

and-

• (a) may only be used for any purpose authorized by this act,
including at a preliminary inquiry; and

• (b) is inadmissible as evidence during any bail application,

plea, trial or sentencing proceedings in which the child
appears.

• A person who does not treat the information as confidential is

guilty of an offence and if convicted, liable to a fine or to
imprisonment for up to 3 months.
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
PRELIMINARY INQUIRY  An informal pre-trial procedure;

• (remember that we have briefly  Inquisitorial in nature

introduced the purpose of the PI, this  May be held in a court/ any other
slide and the slides which follow will suitable place (section 43(1) of the
set out the PI in more detail) CJA)

• We are still dealing with the right to  In terms of section 81 of the CJA:
legal assistance of children in the nothing prevents a child from being
pre-trial stage of the criminal represented by a legal representative at
process. a PI
UNIT 4: THE RIGHT TO LEGAL ASSISTANCE
Objectives of a PI explained:

 Section 43(2) of the CJA

 Consider the assessment report of the PO, specifically: the age estimation of the child, the criminal capacity of the child 10 to 14,
whether the child’s criminal capacity should be evaluated by a suitably qualified person, more detailed assessment of the child is
needed.

 Establish whether the matter can be diverted before plea;

 Identify a suitable diversion option, where applicable;

 Establish whether the matter should be referred to a children’s court;

 Ensure that all available information relevant to the child or his/her circumstances and the offence are considered to make a decision
on diversion and placement of the child

 Ensure that the views of all the persons present at the PI are considered before a decision is made;

 Encourage the participation of the child and his/her parent/ an appropriate adult or a guardian in decisions concerning the child;

 Determine the release/ placement of the child, pending- the conclusion of the PI, the appearance of the child in the child justice court,
or the referral of the matter to a children’s court where applicable.