South Africa

There's no right to stop a trial to earn money for own lawyer, ConCourt rules

There's no right to stop a trial to earn money for own lawyer, ConCourt rules

There is no right to have an ongoing trial postponed for a lengthy period to allow an accused an opportunity to acquire income to secure the services of a preferred legal representative.

The Constitutional Court made this finding on Wednesday when it dismissed an appeal by nine men who had been convicted of various counts, including racketeering, theft and the acquisition, possession or disposal of unwrought gold.

During their trial in the Free State high court, which lasted for six years, the men  — who were tried with others — sought several postponements so that they could raise funds to get the legal representative of their choice.

After their private lawyer withdrew in February 2014 because he had not been paid, the trial court made arrangements with the Bloemfontein Justice Centre to provide legal assistance for the accused.

The Justice Centre advocate began to act for the accused from March 2014.

The accused terminated the new advocate's mandate in early June 2014, while he was cross-examining the last witness for the state.

The state closed its case on June 25 2014. The accused did not cross-examine the state witness and refused to testify in their defence.

Instead they sought a postponement for eight months until February 2015 to allow them to raise funds to obtain a legal representative of their own choice.

This was refused by the court.

In August 2014 the court held that the unreasonable delays constituted exceptional circumstances as provided for in the Criminal Procedure Act and issued an order that the case of the accused was deemed closed.

As a result of this, the evidence adduced on behalf of the state was the only evidence that was before the court as the accused failed to testify.

The high court held that the accused's defence amounted to a bare denial.

The court found the accused were involved in illegal activities at certain smelt houses where gold refining was being done, and in money laundering activities.

The accused were sentenced to prison terms ranging from 10 to 15 years.

Some of the accused applied for leave to appeal to the full bench of the high court. This was refused, as was their petitioning the Supreme Court of Appeal.

Before the ConCourt, the men said their right to a fair trial had been infringed because the court did not grant them a postponement to earn and save funds for their preferred lawyer.

The ConCourt did not agree. In a unanimous judgment written by justice Nonkosi Mhlantla, she said there was a duty placed upon judicial officers to afford the accused an opportunity to obtain legal representation.

She said the judicial officer also has a duty to inform the accused that if their legal representative withdraws, they have a right to apply for a postponement to enable another legal representative to be appointed.

“However, the right to be represented by a legal representative of the accused's own choice does not include a right to have an ongoing trial postponed for a lengthy period to allow an accused an opportunity to earn and save sufficient income to secure the services of a particular legal representative of their choice, since this may go beyond the bounds of reasonableness.”

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