Nakani v Attorney-General, Ciskei, and Another

JurisdictionSouth Africa
JudgeHeath J and Liebenberg AJ
Judgment Date12 May 1989
Citation1989 (3) SA 655 (CK)
Hearing Date25 November 1988
CourtCiskei High Court

Heath J:

The applicant in this matter was convicted in the regional court at Alice on one count of attempted rape and one count of robbery on 12 July 1988. The magistrate treated both counts as one for purposes of sentence and imposed a sentence of four years' imprisonment.

In the charge sheet (at p 1 of the record), it was alleged that the accused is a male person of 15 years of age and that the crimes I were committed on 3 July 1984. The effect of this is that it was alleged that the accused had committed the crimes when he was approximately 11 or 12 years of age.

The accused filed an application (which was supposed to be an application in terms of Rule 53) against the two respondents applying for relief to set aside the convictions and sentences on both counts, on the basis that the accused's father, in whose custody the accused J had been

Heath H

A placed, was not given an opportunity of assisting the accused in obtaining legal representation with the result that the accused did not have legal representation.

The accused's application did not comply with the requirements of Rule 53, but after having read the papers and before the trial date, we decided to call upon the legal representatives of the accused and B the respondents to prepare argument on the question whether the matter should not be reviewed in terms of the inherent powers of review of this Court on a number of grounds. The magistrate was also requested to comment on those grounds.

The first ground, as conveyed to the parties and the C magistrate concerned, was formulated as follows:'Apart from the advisability of the accused or his guardian to investigate the question of legal representation and to arrange for that, the magistrate is requested to comment on the question whether the magistrate himself, in view of the age of the accused and the nature of the offences, should not have investigated the advisability to arrange or to advise the accused to arrange for legal representation. The magistrate is referred to the judgment in the matter S v Khanyile and Another 1988 (3) SA 795 (N).'

It is important to refer first of all to the magistrate's reaction to the notice of motion (referred to supra), which reads as follows: E

'In reply to the grounds for review as stated in the notice of motion I wish to hereby state that at no time was the father of accused denied any opportunity to engage services of a legal representative for the accused.

This is borne out by the fact that after the numerous postponements of this matter with district court, it was transferred for trial by F the regional court on 22 April 1988 on which date it was not tried but further postponed for trial on 11 July 1988 and neither did the father of accused who was always present in court nor the accused himself nor any other person ever indicate that he wished to engage services of a legal representative for his accused.'

In reacting to the reviewing Judge's query, the magistrate replied to the above-mentioned ground as follows: G

'1(a) In S v Khanyile and Another 1988 (3) SA 795 (N) it was said at 818G: ''The rule I have formulated is therefore laid down for Natal.''

(b) The mother of accused has gone to school up to std VI and as such is not a raw ignorant tribal person and so did the father of accused appeared as was always sitted next to the dock (sic) until the case H was finalised and I had therefore no reason to consider them not to be knowing about the existence of attorneys and their duty to defend people in the courts of law since, as I have already said, appeared to be civilised people.'

The applicant was in fact tried without legal representation and the reason for that appears, inter alia, from the above-mentioned reasons furnished by the magistrate.

I It can also be accepted that the accused or his father did not take any initiative in obtaining legal representation.

The question of legal representation, the importance thereof, the advisability thereof and the denial thereof have been dealt with in numerous judgments and therefore it will not be necessary for me to J deal with these well-known aspects in detail.

Heath H

A In ancient Roman times, knowledge of the principles of law and the practice of law was limited to the priests and it was considered as a religious secret. See Van Warmelo Die Oorsprong en Betekenis van die Romeinse Reg 2nd ed at 58.

It is debatable whether the law and the principles of law are not B still a secret as far as laymen are concerned. In Powell v Alabama 287 US 45 (1932) at 68 - 9 Sutherland J remarked as follows:

'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He C is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the D proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction, because he does not know how to establish his innocence.'

In S v Wessels and Another 1966 (4) SA 89 (C) at 91 Van Zyl J deals with the history of legal representation, the need therefor and the development of the approach towards legal representation. I quote from 91D - G:

E 'Since ancient times it has been the privilege of any one summoned to law in a civil matter to plead his own cause or to engage a legal representative to do it for him. The need which most laymen have to be assisted by properly trained persons to present their cases was so strongly felt in Holland that, in some instances in the Superior Courts, persons were by statutory regulations or rule of practice obliged to appear by a representative skilled in the law. This F procedure was deemed necessary not only in the interest of the litigants but also to avoid the confusion and delay occasioned by the inexperience and ignorance that most laymen have about legal proceedings. See Voet 3.3.14; Merula Manier van Procederen 4.36.1 - the whole, and Van der Linden's note to the last-quoted chapter of Merula. See too Van der Linden's note to Voet 3.1.1; Willem de Groot Inleyding tot de Practyck 1.2.14; Van Leeuwen Romeinse Hollandse Regt G 5.4.4 and 5; Vroman Tractaat de Foro Competenti 2.4.3. See too Juta JP's judgment at 587 reported in Dabner v SA Railways and Harbours 1920 AD 583.

Until 1819 a person brought before a court on a criminal charge could not as of right demand that he should be defended by an attorney or advocate. See Wessels History of the Roman-Dutch Law at 376 et seq ; Voet 3.3.14 and 15; (Gane's note to Voet 3.3.14); Merula (supra); Van Leeuwen H (supra); Vroman (supra); Van Wassenaar Practyk Judicieel 27: 4, 6, 8 - 10. From these authorities it appears that only after the accused had been apprehended and brought before the Court and issue had been joined - that is he had pleaded - could he request the Court to allow him to be represented by an advocate or an attorney. The wording of most of these passages, however, leaves one under the impression that generally speaking the Courts acceded to the accused's request to be represented. I It is interesting to note that, in discussing this aspect, Vroman (supra) quotes Baldus as saying that even the Devil has the right to be heard.'

Didcott J dealt in detail with the developments in respect of legal representation in S v Khanyile and Another 1988 (3) SA 795 (N) at 801 - J 10. There is no need to repeat what has been stated by Didcott J on the above-mentioned pages.

Heath H

A However, I wish to deal in more detail with the different facets of the role to be played by a legal representative and I refer to S v Khanyile and Another (supra at 798F - J and 812A and F). The different facets of legal representation or the role to be played by a legal representative can be summarised as follows:

(a)

A legal representative representing a client consults with his B client in detail and with witnesses whom the client wishes to call.

(b)

He advises the client on the strategy of the case.

(c)

He advises the client on the plea to be tendered, the admissions to be offered and the particular allegations to be disputed.

(d)

He executes the strategy.

(e)

C He determines which part or parts of the prosecutor's case he should challenge and then he proceeds to challenge them.

(f)

He attempts to obtain information from the witnesses for the prosecution damaging to its case and he attacks and attempts to destroy the evidence tendered by and on behalf of the prosecution.

(g)

The legal representative decides whether he should tender D evidence on behalf of the accused and he advises the client of the nature and extent of the evidence to be tendered, if any.

(h)

At the end of the case he prepares argument and addresses the court after having evaluated the witnesses and after having analysed the law. He assists the presiding officer in evaluating E the evidence and in applying the relevant principles of law. The legal representative can do that in view of the fact that he has received training and has, to a certain extent, depending on a particular legal representative, experience in the particular field.

F Taking into account the training required to become a legal practitioner, the question arises whether it is conceivable or at all possible for a layman to defend himself in a criminal trial. I respectfully agree with Didcott J in S v...

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23 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...Wyk NO and Another 1989 (3) SA 368 (E) and S v Mthwana C 1989 (4) SA 361 (N). See also Nakani v Attorney-General, Ciskei, and Another 1989 (3) SA 655 (Ck). The contrary decisions are S v Khanyile 1988 (3) SA 795 (N) and S v Davids; S v Dladla 1989 (4) SA 172 (N). A. The importance of legal ......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...Wyk NO and Another 1989 (3) SA 368 (E) and S v Mthwana 1989 (4) SA 361 (N). See also Nakani v Attorney-General, Ciskei, and Another 1989 (3) SA 655 (Ck). The contrary decisions are S v Khanyile 1988 (3) SA 795 (N) and S v Davids; S v Dladla 1989 (4) SA 172 (N). H A. The importance of legal ......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...case should be upheld and the conviction and sentence set aside. [*] Now reported at 1989 (3) SA 368 (E) — Eds. [*1] Reported at 1989 (3) SA 655 (Ck) — [*2] Reported at 1989 (3) SA 655 (Ck) — Eds. have suggested should be applied to it. In his case, the expert evidence relating to the finge......
  • S v Davids; S v Dladla
    • South Africa
    • Natal Provincial Division
    • 1 June 1989
    ...case should be upheld and the conviction and sentence set aside. [*] Now reported at 1989 (3) SA 368 (E) — Eds. [*1] Reported at 1989 (3) SA 655 (Ck) — [*2] Reported at 1989 (3) SA 655 (Ck) — Eds. limits which I have suggested should be applied to it. In his case, the expert evidence relati......
  • Request a trial to view additional results
23 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...Wyk NO and Another 1989 (3) SA 368 (E) and S v Mthwana C 1989 (4) SA 361 (N). See also Nakani v Attorney-General, Ciskei, and Another 1989 (3) SA 655 (Ck). The contrary decisions are S v Khanyile 1988 (3) SA 795 (N) and S v Davids; S v Dladla 1989 (4) SA 172 (N). A. The importance of legal ......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...Wyk NO and Another 1989 (3) SA 368 (E) and S v Mthwana 1989 (4) SA 361 (N). See also Nakani v Attorney-General, Ciskei, and Another 1989 (3) SA 655 (Ck). The contrary decisions are S v Khanyile 1988 (3) SA 795 (N) and S v Davids; S v Dladla 1989 (4) SA 172 (N). H A. The importance of legal ......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...case should be upheld and the conviction and sentence set aside. [*] Now reported at 1989 (3) SA 368 (E) — Eds. [*1] Reported at 1989 (3) SA 655 (Ck) — [*2] Reported at 1989 (3) SA 655 (Ck) — Eds. have suggested should be applied to it. In his case, the expert evidence relating to the finge......
  • S v Davids; S v Dladla
    • South Africa
    • Natal Provincial Division
    • 1 June 1989
    ...case should be upheld and the conviction and sentence set aside. [*] Now reported at 1989 (3) SA 368 (E) — Eds. [*1] Reported at 1989 (3) SA 655 (Ck) — [*2] Reported at 1989 (3) SA 655 (Ck) — Eds. limits which I have suggested should be applied to it. In his case, the expert evidence relati......
  • Request a trial to view additional results

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