Court’s refusal to grant prayers to postpone trial to enable the accused to source funds to pay legal representation of their own choice was not an infringement of their right to fair trial
Ramabele v The State; Msimango v The State  ZACC 22
Constitutional Court of South Africa
Mogoeng CJ, Froneman, Jafta, Khampepe, Majiedt, Mhlantla, Tshiqi JJ and Victor AJ
September 16, 2020
Constitutional Law – criminal law – right to fair trial – right to legal representation – whether the applicants were entitled to have the trial postponed as a matter of right to enable them source funds to pay legal representation of their own choice notwithstanding the delay – Constitution of the Republic of South Africa, 1996, section 35 (3) (d)
The applicants were tried, convicted by the trial court and had been serving various sentences of imprisonment ranging from 10 to 15 years. The applicants sought leave to appeal against the judgment issued by the trial court. They faced charges on racketeering, theft and the acquisition, possession or disposal of unwrought gold. The applicants together with their co-accused were charged with 133 counts. In particular, for contravening sections 2, 4, 5 and 6 of the Prevention of Organised Crime Act (POCA), sections 143 and 145 of the Mining Rights Act, as well as section 4 of the Precious Metals Act.
The applicants and the co-accused pleaded not guilty and elected not to disclose the basis of their defence. The trial spanned through a period of six years, from 2008 to 2014. The trial was postponed numerous times, mostly at the instance of the accused. They repeatedly requested that the trial be postponed to enable them obtain a legal representative of their choice or due to financial constraints. At some point, the trial court made arrangements for the applicants to access free legal representation but they dismissed the government provided advocate after a brief engagement and requested that the trial be postponed. Despite the trial court granting the applicants’ request, they turned up unrepresented and refused to cross examine the state witness. They proposed a schedule where the trial was to take place for three weeks then postponed for five months to allow them secure funds to pay lawyers of their own choice but the court denied their request. The applicants further claim that the judge at trial court was biased and that the judge did not inform them on the legal implications upon the invocation of section 342A of the Criminal procedure Code.
- Whether the appeal, being filed after time had lapsed, should be allowed.
- Whether the trial court’s refusal to grant the request for postponing the trial infringed the applicants’ right to fair trial.
- Whether the applicants were entitled to have the trial postponed as a matter of right to enable them source funds to pay legal representation of their own choice notwithstanding the delay.
Relevant provisions of the law
Constitution of the Republic of South Africa
Section 35(3) (d)
(3) “Every accused person has a right to a fair trial, which includes the right—
(d) to have their trial begin and conclude without unreasonable delay”.
Criminal Procedure Act
1. A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness.
2. In considering the question whether any delay is unreasonable, the court shall consider the following factors:
a) the duration of the delay;
b) the reasons advanced for the delay;
c) whether any person can be blamed for the delay;
d) the effect of the delay on the personal circumstances of the accused and witnesses;
e) the seriousness, extent or complexity of the charge or charges;
f) actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost,
g) the effect of the delay on the administration of justice;
h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;
i) any other factor which in the opinion of the court ought to be taken into account.
- The court was satisfied by the applicant’s explanation for the delay in filing the instant suit. Though the suit was filed 14 months out of time, the court acknowledged the fact that the applicants lacked sufficient funds and that their incarceration in different correctional centres around the country made outside communication and consultations with their legal team abundantly difficult.
- The right to legal representation during a trial was a fundamental right of an accused and was inherent in the right to a fair trial. However, when legal assistance was appointed for the accused by the state, they ought to have accepted the legal representation. They did not necessarily have the right to select the legal representative appointed for them. The right to be represented by a legal representative of the accused’s own choice did not include the right to have an ongoing trial postponed for a lengthy period in order to allow the accused an opportunity to earn and save sufficient income to secure the services of a particular legal representative of their choice. That could go beyond the bounds of reasonableness.
- The trial court was correct in refusing a further postponement of the trial. It had afforded the applicants ample time to arrange their finances. When it became apparent that they had financial constraints, the trial court referred the applicants to the state agency responsible for providing free legal aid. The trial court still granted them some latitude when they expressed their displeasure at being represented by the government provided advocate. The trial was postponed to enable them to engage their own legal team and when that failed to materialise, the trial court correctly proceeded with the trial.
- The applicants elected not to cross-examine state witnesses as a ploy on their part to delay the trial. They sought to dictate the pace of litigation and this was untenable. It was unreasonable for the applicants and their co-accused to expect the trial court to grant the postponement on their terms, which would have entailed the trial being conducted for three weeks and postponed for a period of five months. That was a peculiar request and if granted, the delay would have been inordinate.
- When it came to the issue of judicial bias, impartiality was essential to the proper discharge of the duties of the judicial office and was central to the administration of justice. It applied not only to the decision itself but also to the process by which the decision was made. ‘Impartial’ connoted absence of bias, actual or perceived. Impartiality must exist as a matter of fact and as a matter of reasonable perception.
- If a judicial officer was perceived to be partial, that perception was likely to aggrieve some persons and leave a sense of injustice to the affected parties and society at large, thereby diminishing confidence in the judicial system. The test to determine whether a judicial officer should be excluded from hearing a case by reason of a reasonable apprehension of bias should be by way of an inquiry made by a reasonable, objective and informed person on the correct facts. The inquiry should be to establish if there was a reasonable apprehension that the judge had not or would not bring an impartial mind to bear on the adjudication of the case.
- Though the trial court used inappropriate language when he responded to the applicant’s requests for postponing the trial by stating the following words verbatim, “I am not interested in getting you somebody else to attend to your matter. You will carry on in person, I don’t care what you do . . . this matter was not postponed for you to get legal representation”. Indeed, the trial court had expressed its sentiments due to the frustrations caused by the incessant delays occasioned by the applicants. The trial court was pushed to the limits and the circumstances showed that it was not biased. The trial court demonstrated an ability to conduct an objective analysis based on the facts. For instance, the trial court did not readily accept the evidence of the state at face value but evaluated it. That was evident from the judgment, and at the end the trial the applicants were acquitted on some of the charges.
- Section 342A of the Criminal Procedure Act addressed the issue of unreasonable delays in trials. The overarching aim of that section was to provide courts with a statutory mechanism to avoid unreasonable delays in the finalisation of criminal proceedings. Section 342A empowered a court to examine the reasons for the delay. In order to ascertain whether the delay was reasonable or not, courts considered an array of factors. In the event the court found that the delay was unreasonable, section 342A (3) provided an open list of potential remedies. Further, section 35(3) (d) of the Constitution of the Republic of South Africa, 1996 provides for the accused’s right to fair trial that ought to begin and conclude without unreasonable delay.
- Courts ought to consider whether the lapse of time was reasonable by considering an array of factors including:
- the nature of the prejudice suffered by the accused;
- the nature of the case;
- systemic delay; and
- the nature of the offence as well as the interests of the family and or the victims of the alleged crime.
- A proper consideration of those factors required a value judgment with reasonableness as the qualifier. Furthermore, it was a fact specific inquiry. Therefore, the fact of a delay could not automatically constitute an infringement of the right to a fair trial. Whether there had been an “unreasonable delay” required a value judgment by applying the factors to the specific circumstances of each case.
- If an accused had been the primary agent of delay, they should not be able to rely on it in vindicating their rights under section 35(3) (d) of the Constitution of South Africa. The accused should not be allowed to complain about periods of time for which they sought a postponement that delayed the prosecution. That notwithstanding, it was critical to note that a delay, even an aggravated delay caused by an accused person, did not deprive the accused of the right to challenge the fairness of the trial. An accused should not be able to abuse such delay in the process in order to construct a platform from which to attack the fairness of the process, including the trial itself.
- The prosecution had notified the applicants of its intention to invoke the provisions of section 342A of the Criminal Procedure Act. The trial court properly explained the said provision and the consequences thereof to the applicants that were unrepresented at the time. When the applicants elected not to testify and insisted on a further postponement for a period of five months without any indication that they would be able to secure funding to appoint a legal representative of their choice, the trial court stated that the applicants were fully aware of their obligations, the consequences of their actions or inactions.
- The applicants’ rights to a fair trial were not infringed because the trial court ensured that the proper procedure required by section 342A of the Criminal Procedure Act as followed and that exceptional circumstances warranted an order to close the accused’s case.
i. Condonation is granted.
ii. Leave to appeal granted.
iii. Appeal dismissed.
Relevance to the Kenyan situation
The Constitution of Kenya, 2010 under article 50(2) (h) provides that an accused person has a right to have an advocate assigned to him or her at the State’s expense if substantial injustice would otherwise result. This provision places a qualified obligation on the government to provide legal representation for accused persons that are not able to pay for their legal representation.
Sections 35 and 36 of the Legal Aid Act, 2016 lists the different legal matters catered by state representation and the type of persons that qualify to be given free legal aid at the state’s expense. These legal provisions do not cater for situations where the accused can dictate their choice of a legal representative.
In the case of Maina Njenga v Republic  eKLR, the court stated that:
“Where an accused person insists that he needs to be represented by counsel of his choice but the said counsel is not available to appear in court at scheduled dates, the court would not be held at ransom on the ground that the accused’s right to legal representation of his choice must by all means be upheld.”
The instant South African case shows that both the Kenyan courts and the South African courts value expeditious adjudication of matters without undue delay, even where the delay may be for the purpose of availing a legal right to the accused.