Professional incompetence, voluntariness and the right to a fair trial

JurisdictionSouth Africa
Citation(2014) 27 SACJ 293
AuthorP J Schwikkard
Date16 August 2019
Published date16 August 2019
Pages293-305
Professional incompetence,
voluntariness and the right to a fair
trial
PJ SCHWIKKARD*
1 Introduction
It is obvious that the right to legal representation, guara nteed in s35 of
the Constitution of the Republic of South A frica must include competent
legal representation. The right to legal representation is trad itionally
viewed as a pre-requisite for the protection of the privilege against
self-incrimin ation.1 If this line of reasoning is pu rsued it follows that
competent legal representation is required to uphold the privilege
against self-incrim ination. But the following questions arise: how does
a court determine i ncompetence and when will incompetence render
a trial unfair?
In each jurisdiction the contours of r ights are constrained and shaped
by social, economic, historical and political contex ts. For example,
in South Africa t he right to legal representation is not a substantive
right unless substantive injustice would result if t here was no legal
representation. The South Afr ican constitution embodies an expres s
rejection of the abuse of state powers that character ised the apartheid
regime and consequently the privilege again st self-incriminat ion is
not a right to be taken lightly. However, historical context would also
indicate that coercion is the prima ry wrong to be guarded agai nst. In
the absence of coercion it is not clear that the privilege against s elf-
incrimination is i nfringed when an incri minating statement is made
voluntarily in the mista ken belief that it is not incrimin ating nor that a
fair trial is breached in t he absence of competent legal representation.
The case of S v Saloman2 provides an interesti ng factual matrix i n
which to explore these quest ions.
The appellant was contacted by a policeman (whom he knew) who
said he wanted to speak to the appellant in connection with a robb ery.
The appellant took himself to the police st ation to discuss the matter
with the investigating off‌icer. At the police station the appellant was
* BA (Wits) LLB LLM (Nat al) LLD (Stell); Dean of L aw and Professor in the Faculty of
Law, University of Cape Town.
1 See PJ Schwikkard and SE Van der Merwe Pr inciples of Evidence 3ed (2009) 121 et
seq.
2 2014 (1) SACR 93 (WCC).
293
(2014) 27 SACJ 293
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