Legal representation and the courts

• Date: 01 January 1997
• Author: D. McQuoid-Mason
• DOI: 10.10520/EJC34824
• Published date: 01 January 1997
• Pages: 163-176

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7

Legal Representation

and the Courts

David McQuoid-Mason *

Introduction

This chapter deals mainly with legal representation in the criminal courts and

the right to counsel, legal aid, the courts and the transformation of the legal

profession in South Africa.

Right to Counsel

During 1997 the High Court confirmed that the failure to inform an accused of

his or her right to consult with a legal adviser during the pre-trial stage

effectively deprived the person of their right to remain silent and not to

incriminate themselves.1 It also held that the rights of arrested persons cannot

be circumvented by referring to them as ‘suspects’, and that suspects should

be entitled to the same fair pre-trial procedures as an arrested person.2 The

right to choose a lawyer implies the converse right to decide against choosing

a lawyer. However, a person will only be regarded as having waived the right

to counsel where there is clear and unequivocal evidence of an informed

waiver.3 Likewise the courts are loath to attribute a lack of counsel to the fault

of an accused, unless there is clear evidence of negligence or deceit on the

part of the person concerned.4 The question ‘Are you going to conduct your

own defence?’ has been held not to imply that the accused was sufficiently

aware of his or her right to counsel.5

* B Comm LLB (Natal) LLM (London) PhD (Natal). Professor of Procedural and

Clinical Law, University of Natal, Durban.

1 S v Hlilikaya 1997 (1) SACR 613 (SE); S v Zwayi 1997 (2) SACR 772 (CkH).

2 S v Sebejan 1997 (1) SACR 626 (W).

3 S v Mathebula 1997 (1) BCLR 123 (W).

4 Cf S v Maduna 1997 (1) SACR 646 (T); S v Philemon 1997 (2) SACR 651 (W).

5 S v Ramuongiwa 1997 (2) BCLR 268 (V).