S v NYATHI 2003 (2) ZLR 102 (H)

Flynote

Criminal procedure — legal representation — right to — limits to right — when court may order trial to proceed without accused having legal representation

Criminal procedure — review — procedure — use of — should not be used where conviction attacked

Criminal procedure — trial — irregularity — failure to allow legal representation — failure by accused to secure legal representation or to apply for postponement for that purpose — court entitled to order trial to proceed

Criminal procedure — trial — irregularity — failure to grant postponement to allow defence witness to be obtained — whether court entitled to refuse postponements

Headnote

The accused's conviction and sentence in the magistrates court had been confirmed on review. His legal practitioner sought to bring the matter on review again. He attacked the conviction and submitted that the proceedings were defective. He alleged that the magistrate had not allowed the accused to secure legal representation after his then legal representative had died. It was also alleged that the magistrate had not granted a postponement to enable a defence witness to be called.

Held, that other than in very exceptional cases, the accused may not use the review procedure to attack the conviction. He should appeal. The circumstances of this case did not warrant making an exception.

Held, further, that while every person charged with a criminal offence is permitted to defend himself, at his own expense, by a legal practitioner of his choice, the trial court has a discretion, in appropriate cases, to order that the trial should proceed despite the absence of a legal practitioner. Before doing so, the court must clarify whether the absence is the fault of the accused or of the lawyer. The right to legal representation imposes an obligation to permit, not to ensure, legal representation. The accused had sufficient time to find another legal representative or to ask for a postponement to secure one. Held, further, that not every refusal of an adjournment or postponement of a trial to give the defence time to call a witness constitutes a gross irregularity. The question is whether in refusing the adjournment all the material facts were taken into consideration. In this case the accused abandoned his intention to call his witness after two postponements failed to secure his attendance.