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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO:  073/2005
Registrar’s Reference No:  1137/05

PARTIES : BRUCE EHRLICH

vs

CEO LEGAL AID BOARD

GRAHAMSTOWN JUSTICE CENTRE

REFERENCE NUMBERS -

Registrar:

• Magistrate:

• Supreme Court of Appeal/ Constitutional Court:

DATE OF HEARING: 19/08/05

DATE DELIVERED: 01/09/05

JUDGE(S): CHETTY J

LEGAL REPRESENTATIVES:

Appearances:

• for the Applicant: IN PERSON

for the Respondent: MRS L CROUSE

Instructing Attorneys:

• Applicant: IN PERSON

• Respondent : LEGAL AID BOARD / JUSTICE CENTRE

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: 1137/05

In the matter between: Date delivered:

BRUCE EHRLICH Applicant

And

CEO LEGAL AID BOARD 1^st Respondent

GRAHAMSTOWN JUSTICE CENTRE 2^nd Respondent

_______________________________________________________________

JUDGMENT

_______________________________________________________________

CHETTY J

1. This is an application, brought as one of urgency, for an order reviewing and setting aside a decision of the Legal Aid Board (the Board) refusing the applicant, Mr Bruce Ehrlich, legal representation at state expense to prosecute an appeal against his conviction and sentence imposed in the regional court, East London on 8 August 2003 on several charges of indecent assault.

2. The applicant contends that such refusal violates his right to a fair trial guaranteed by s 35 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) thus entitling him to the relief sought. The machinery to give effect to these constitutional rights is the Legal Aid Board. It is a statutory body established by the Legal Aid Act 22 of 1969 through which the state fulfils its duty to render legal aid to the indigent so as to give content to the rights guaranteed in s 35. It gives expression to the constitutional duty imposed on the state to prevent substantial injustice in cases where accused persons are themselves unable to fund legal representation. Section 35 of the Constitution makes provision, as part of the fair trial right of accused persons, inter alia, for the right to have a legal practitioner assigned to an accused person by the state and at state expense if substantial injustice would otherwise result (ss (3) (g)) and a right of appeal to or review by, a higher Court (ss (3) (o)).

3. To place the application in proper perspective it is apposite to provide an historical overview of those facts which appear to be common cause. The applicant’s criminal trial was protracted. During its currency the legal representatives appointed to represent the applicant were replaced with increasing frequency at the behest of the applicant. Ultimately, during the concluding phase of the trial, (the defence case) prior to the verdict being pronounced, the applicant appeared in person having once more dispensed with the services of the third legal representative appointed by the Board.

4. Prior to the commencement of the sentencing phase of the trial, the applicant once more sought legal assistance from the Board. In terms of its policy the Board declined to provide the applicant with the services of a legal representative. Aggrieved thereby the applicant commenced proceedings in this court to review and set aside the Board’s decision thereanent. The Board relented and appointed a member of the East London Justice Centre, attorney Slabbert, to represent the applicant until the conclusion of the trial. The applicant was sentenced to imprisonment for 15 years.

5. On the instructions of the applicant an attorney in the employ of the East London Justice Centre filed a notice of appeal against the conviction and sentence on 22 August 2003. Thereafter, attorney Slabbert, consulted with the applicant and informed the latter that should he be desirous of prosecuting an appeal he would be required to re-apply for legal aid, and that the Board’s decision thereanent would primarily be influenced by whatever prospects of success the appeal held.

6. Attorney De Jager of the Board’s Grahamstown Justice Centre undertook the arduous task of reading the transcript of the trial proceedings. The record comprised twelve volumes equating to 3657 pages. At the end of the exercise De Jager concluded that the appeal lacked merit and informed the applicant accordingly. De Jager’s opinion was summarily rejected. The applicant sought a second opinion and solicited the services of Advocate R. P. Quinn S.C., a member of the Grahamstown Bar Association to furnish an opinion on the prospects of success on appeal. Advocate Quinn, together with junior counsel Ms Conlyn, not only read and considered the record but moreover consulted with Dr Edwards, a medical expert, with a view of exploring the possibility of leading further evidence on appeal which could be relevant to the question of sentence.

7. Counsel concluded that there was no prospect of success in the appeal both in respect of the conviction and sentence and notified the applicant and the Board’s Grahamstown office accordingly. The latter in turn advised the applicant that in the circumstances, his application for legal assistance to prosecute an appeal had been refused. It nonetheless however advised the applicant of his right to appeal to the Board’s CEO against the refusal of his application. The Board’s regional operations executive, who held the delegated authority to consider such appeals, determined that there were no prospects of success on appeal, refused the application and conveyed its decision to the applicant.

8. It appears from the applicant’s founding affidavit that the attack on the Board’s refusal to grant him legal assistance is two-pronged. In the first instance he suggests that by filing the notice of appeal the Board manifested an intention to prosecute the appeal in as much as it would not have done so unless it had concluded that there was merit in the appeal. Consequently the subsequent refusal to grant him legal assistance amounted to a rescission of a decision already taken which, in the absence of valid grounds justifying the volte-face, constituted a violation of his constitutional rights. The submission is contrived. The facts clearly do not support this contention. The notice of appeal was filed by the Board’s East London office not mero motu but on the instructions of the applicant. Attorney Bambiso, a member of the Board’s East London Justice Centre and who drafted the notice, was a virtual stranger to the applicant’s case. The lack of specificity as to the grounds of appeal indicate unequivocally that the notice was filed purely as a result of the pending expiration of the time period within which the notice had to be filed. I accept the Board’s explanation hereanent. It follows that the first ground of attack cannot be sustained.

9. The applicant contends moreover that he is entitled as of right to legal representation at state expense to prosecute his appeal to the Full Court. It is thus necessary to consider whether the Constitution in fact confers what the applicant avers is an absolute right. Section 35 of the Constitution distinguishes between pre-trial rights (ss (1)), the rights of a detained person, including one who has been convicted and sentenced (ss(2)) and an accused person (ss(3)). Subsection (2) (c) provides:-

“(2) Everyone who is detained, including every sentenced prisoner, has the right-

1. …

2. …

(c) 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;” (emphasis supplied)

A similar provision in respect of accused persons is ss (3) (g). It was pointed out by Yacoob J in S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC) at paragraph [103] that the three subsections i.e. s 35(1), (2) and (3) intersect and complement each other. The learned judge added that (they):-

“[103]… demonstrate a logical pattern when viewed from the point of view of the criminal justice process that might unfold in relation to a person who is suspected of having committed an offence. The first step envisaged is the arrest of a person for allegedly having committed an offence. That person is not yet an accused and the arrest itself does not render him a detainee entitled to the rights set out in ss (2). The rights in ss (1) and (2) will be applicable to everyone who is arrested and thereafter detained. Every person arrested for allegedly committing an offence has the right, at the first court appearance, to be charged, to be informed of the reason for the detention to continue, or to be released. If she or he is released the process is at an end. Presumably the person may be detained further and informed that the matter is under further investigation. In that event, the person concerned remains a detainee and is entitled to the rights described in ss (1) and (2). It is only if the person is charged that he or she becomes an accused person and has the right to a fair trial in terms of ss (3).

[104] This aspect introduces the link between ss (1) and (3). Subsection (1) confers rights upon people who are arrested for allegedly committing an offence and who are subsequently detained but only until they are charged and become accused persons. When they do, ss (3) takes over and they become entitled to a fair trial and all that that entails. But ss (1)and (3) represent a continuum.”

In my view not only does ss (1) and (3) correctly represent a continuum but ss (2) as well as regards a sentenced prisoner. Contextually the right of appeal conferred by ss (3) (o) and the protection accorded a sentenced prisoner to have a legal practitioner assigned to him or her by the state and at state expense (ss (2) (c)) are not disparate. The underlying objective is the accused or sentenced person’s right to a fair trial.

10. It is common cause that De Jager was assigned to consider the appeal and to that end read and considered the transcript of the trial proceedings. He concluded that the appeal lacked merit, an opinion shared by Advocate Quinn S.C. In considering the application, the Board’s functionary, its Justice Centre Executive (JCE), was required to determine whether a refusal to grant legal assistance to prosecute the appeal would amount to a substantial injustice. The phrase “substantial injustice” is not confined to ss (2) (c) and (3) (g) of the Constitution. It was inserted into the Legal Aid Act as paragraph (dA) by the Legal Aid Amendment Act 20 of 1996. Section 3 (dA) of the Legal Aid Act, under the rubric “Objects and general powers of the Board reads:-

“3. Objects and general powers of board

The objects of the board shall be to render or make available legal aid to indigent persons and to provide legal representation at State expense as contemplated in the Constitution, and to that end the board shall, in addition to any other powers vested in it by the Act, have power-

(a) …

(b) …

(c) …

(d) …

(dA) to provide, subject to section 3A (3), legal representation at State expense as contemplated in section 25 (1) (c) and (3) (e), read with section 33 (2), of the Constitution, where substantial injustice would otherwise result;”

11. There can be no suggestion that the decision to refuse legal assistance was arrived at capriciously or arbitrarily. Ms Wyngaard, the Board’s JCE considered the opinions of attorney De Jager, Advocate Quinn, and the recommendations of her High Court unit manager, Ms McCullum, all of whom opined that the prospects of success on appeal were non-existent. In my judgment therefore Ms Wyngaard was entitled to conclude that a refusal to provide the applicant with assistance would not amount to a substantial injustice. It must be remembered that the Board’s primary source of funding is the public purse upon which there is a substantial demand.

12. In my judgment therefore it can hardly be contended that the Board failed to properly consider the application. In the result the following order will issue:

The application is dismissed.

………………………….

D. CHETTY

JUDGE OF THE HIGH COURT

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