Your right to legal representation for legal advice and assistance.

September 29, 2016 Carolee


In terms of section 35 of Constitution, every person arrested and/or detained has a constitutional right to consult with a legal practitioner of his/her choice and to be informed of this right promptly.


This right includes:

– that an accused person may be represented by legal counsel of his or her choice, if one can afford it. Making provision for the fact that should one not be able to afford legal representation, one can apply to the court for legal representation at the State’s expense;

– that an accused person be informed of the charge(s) against him or her with sufficient particulars to answer it/them;

– that an accused person have adequate time to prepare his or her defence, but that once trial will begin and conclude without unreasonable delay;

– that an accused person cannot be tried in his or her absence, or in a language which he or she cannot understand or is not interpreted, or in a court which is not an ordinary court;

– that an accused person are presumed innocent and have a right to remain silent;


In the recent case of S v Mafika 2016 (1) SACR 623 (FB) the Bloemfontein High Court once again emphasized this right contained in section 35 of Constitution, by finding that a magistrate cannot proceed with a trial where the accused has indicated that he wants a legal representative.


The accused was charged in the magistrates’ court with two counts of housebreaking with intent to steal and theft. At the outset of the trial he informed his legal representative that he was unaware of one of the charges against him and would not plead to that charge. A conflict arose between the parties, leading to the withdrawal of the legal representative. The magistrate pressed ahead with the case and insisted that the charges be put to the accused. He refused to plead and requested that his trial be adjudicated by another presiding officer. The magistrate noted a plea of not guilty in respect of both charges and proceeded to act in terms of s 115 of the Criminal Procedure Act 51 of 1977 (CPA). The accused responded that there were aspects which he did not understand. Despite this, the magistrate instructed the prosecutor to proceed with the state’s case. The accused was duly convicted on both counts despite further requests for legal assistance during the trial, and the matter was referred to the regional court for the imposition of sentence.


The regional magistrate was of the opinion that the accused had not been given a fair trial and accordingly submitted the matter for special review in terms of s 304(4) of the CPA.

Judge Ebrahim in his judgment stated:

“An accused’s right to legal representation was recognised as fundamental to his right to a fair and just trial long before the enactment and coming into operation of the Constitution.  It is now, since the advent of the new constitutional dispensation imperative that an accused person should be informed promptly of his rights in terms of section 35(3)(e)(f) and (g)…”


He further found that, despite the repeated requests from the accused for legal representation, the magistrate ignored the constitutional imperatives contained in section 35 of the Constitution, and dispassionately informed him of his rights of cross-examination, well knowing that the failure of the accused to challenge the state case rested squarely on his refusal to allow the accused an opportunity to obtain such. Neither did the magistrate inform the accused of his right to apply for legal aid. Had the accused obtained the assistance of a legal representative, the outcome of the trial might well have been different.


Judge Ebrahim found that such failure by the trial magistrate constituted a gross irregularity, amounting to a failure of justice. The proceedings had to be set aside and the matter remitted to the magistrates’ court for trial de novo before another magistrate.


For the full judgment: