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• Current South African Law
• International Perspective
• Proposals

4. LEGAL REPRESENTATION

Current South African law

(i) Assistance by parent or guardian

4.1 Section 73 of the Criminal Procedure Act provides for the assistance of an accused under 18 by his or her parent or guardian in criminal proceedings. This includes the right to assistance in the pre-trial stage of the proceedings such as identity parades, pointing outs and confessions.^[29] The courts have noted that the entitlement to a legal representative (section 73(1) of the Criminal Procdure Act) and the right to assistance by a parent or guardian are separate. It is suggested that both options should be retained in proposed legislation.

(ii) The right to legal representation

4.2 Like adults, juvenile accused persons have a right to legal representation as from the time of arrest. There is a duty on magistrates to explain the right to legal representation to every accused who appears before the court. The services provided by the Legal Aid Board are also explained. However, in over 80% of cases accused persons under 18 appear before the courts unrepresented.^[30] Some reasons for this are that children^[31] -

• claim that they were not informed about the possibility of free legal assistance;
• distrust what they call “government lawyers”;
• proclaim that they are innocent and do not need a lawyer;
• claim that lawyers on legal aid briefs delay and/or prolong cases unnecessarily;
• allege that lawyers coerce them to plead guilty;
• say that they would prefer to speak on their own behalf rather than have lawyers speaking for them.

4.3 Section 35 of the Constitution of the Republic of South Africa 108 of 1996 guarantees the right of all detained and sentenced persons (including children) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly. Due to their youth and immaturity, children facing criminal charges are particularly vulnerable and in need of competent legal representation.

4.4 The Minister of Justice, acting on the request of the Committee on the Co-ordination of the Management of Juveniles Awaiting Trial,^[32] has noted that juveniles in custody are not provided with adequate legal representation. As an interim measure, the Committee has called upon the Legal Aid Board, NADEL, BLA, the Association of Law Societies of the Republic of South Africa and Lawyers for Human Rights to assist in the provision of such services. In the long run, however, the constitutional obligation to provide legal representation will rest with the state.

International perspective

4.5 Article 12(2) of the UN Convention on the Rights of the Child states that “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”. In terms of Rule 15.1

of the Beijing Rules, “the juvenile shall have the right to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid in the country” throughout the proceedings.

Proposals

(i) General

4.6 Despite the constitutional recognition of the need for legal assistance, and the reality that substantial injustice is likely when children face significant criminal charges without legal representation, the practical problem that 80% of children are not currently represented in criminal proceedings has to be faced. A model for effective legal represenation must be found. Three possible options are presented here for comment:

(a) In order to overcome the reluctance of many children and their parents or guardians to apply for legal assistance through the Legal Aid Board (for example due to the perceptions of poor quality of services), the children through their parents or guardians should be allowed to approach lawyers of their own choice whose fees will then be paid for by the state.

(b) In order to provide quality legal representation, it is recommended that some form of specialisation should be aimed for. In larger centres, where the number of children appearing in the courts warrant it, a simple way to provide consistent good quality legal representation for young people would be through an appropriately trained special public defender.

(c) The third possibility is the current judicare system, with certain measures taken to provide a level of specialisation. This could possibly be done through a specialised roster or panel. Lawyers could be invited to apply for inclusion in the roster on the basis of certain criteria such as a preparedness to respond to ongoing legal education specific to youth justice (training sessions, receive newsletters etc) as well as the willingness to give juvenile cases priority so that cases involving young people are not subjected to lengthy remands at the request of the defence. Because of the competitiveness of lawyers within the judicare system, lawyers should be made to understand that the cases allocated to them on a specialised roster will be instead of, and not as well as other legal aid briefs.

(ii) Waiver of legal representation

4.7 The practical problems mentioned above which indicate that children often refuse legal assistance, raises the matter of waiver of this right. Children have the right to refuse legal representation. This however leaves them unprotected, and consideration should be given to the appointment of a lawyer to monitor the proceedings and ensure the protection of the best interests of the child. This applies most importantly to cases that go to trial, and to cases where the possibility of deprivation of liberty exists. The appointment of an independent lawyer (not on brief from the child) should also be applicable to any child who is in pre-trial detention.

(iii) Legal representation and diversion

4.8 In cases where children are to be diverted, there are different views on the necessity and/or desirability of the young person having a legal representative. One view is that there should be no deviation from the general rule of legal representation in every case and that even where a decision is made to divert a particular young person he or she should nevertheless be legally represented. The young person is entitled to be advised of his/her rights to legal representation, but the responsibility of the State to provide such representation will depend on whether a substantial injustice is likely to occur when a case is being diverted away from the criminal justice system. The view that young people should be legally represented in every case, even diverted, stresses the due process risks which diversion occasions (discussed below).

4.9 An alternative view is that because lawyers are currently trained to work within an adversarial system, their presence at a process to decide on diversion may hinder rather than assist the young person. Diversion rests on the requirement that the young person must accept responsibility for his or her actions. Lawyers trained in the adversarial model of justice will frequently advise their clients to make no admissions and this would effectively prevent the child from being diverted. This problem could be solved, however, if lawyers representing children were specially trained for the task (see paragraph 4.6(b)). Should a young person give any indication of reluctance to acknowledge responsibility, however, he or she should be considered to be pleading not guilty and be offered legal representation.

4.10 Constitutional provisions guaranteeing the right to legal representation from the moment of arrest cannot be dispensed with, but where there has been no arrest (for example police caution, notice to appear at a referral meeting) the state is not obliged to provide legal representation. A private lawyer can, of course, be retained.

Comment on all the above proposals is invited.

[29] S v Kondile 1995 (1) SACR 394 (SEC). See further J Sloth-Nielsen Juvenile Justice Review 1994-95 1995 SACJ at 338 et seq.

[30] Raulinga, Siditi and Thipanyane in L Pollecut et al Legal Rights of Children in South Africa National Institute of Public and International law 1995 at 63, 86 and 101.

[31] Lawyers for Human Rights Project 1992-94 where 1 140 juvenile accused were interviewed.

[32] This is an inter-sectoral committee chaired by the Department of Welfare. The committee was formed to oversee the management of children awaiting trial.