THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  332/05

In the matter between:

THE LEGAL AID BOARD (EX PARTE)

Appellant

and

JOHAN PRETORIUS

First Respondent

WILHELM PRETORIUS

Second Respondent
________________________________________________________________

Coram:
Harms, Streicher, Navsa, Brand et Van Heerden JJA

Date of hearing:
22 May 2006
Date of delivery:
31 May 2006

Summary:
Application for leave to appeal ─ trial judge directing Legal Aid Board to provide
alternative legal representation on basis that counsel representing accused together with others had
too heavy a workload to provide effective representation ─ challenged by Board on basis that it is
not within his power to do so ─ held that s 3B of the Legal Aid Act 22 of 1969 was properly resorted
to by judge and that it was within his province and power to ensure a fair trial ─ application
dismissed ─ matter struck from the roll.

Neutral citation:
This judgment may be referred to as Legal Aid Board v
Pretorius [2006] SCA 81 (RSA).

_______________________________________________________
JUDGMENT
_______________________________________________________

NAVSA JA

NAVSA JA:

[1] This matter concerns the right to legal representation at State expense. It
has its genesis in the assertion of constitutional rights by two accused in a high
profile trial in the Pretoria High Court, which, in popular parlance, has become
known as the ‘Boeremag treason trial’.

[2] To enable a proper appreciation of the background facts and an
understanding of the conclusions reached, it is regrettably necessary, in relating
the history of the matter, to describe relevant communications between
interested parties in some detail and, in a number of instances, to provide the
entire text of written communications.

[3] The two accused, Messrs Johan and Wilhelm Pretorius (accused no’s 19
and 21, respectively) and many others were charged with treason, sabotage,
terrorism, murder, attempted murder and a range of other counts. I shall, for
convenience, refer to accused no’s 19 and 21 as J and W respectively.

[4] The trial commenced on 19 May 2003. At its commencement J and W
were represented by a legal representative of their own choice and at their own
expense. During May 2004, presumably after J and W’s funds were exhausted,
the Legal Aid Board (the Board), which is the statutory body and organ of State
established in terms of the Legal Aid Act 22 of 1969 (the Act) that provides legal
representation at state expense to those who qualify in terms of certain criteria,
appointed Adv Brümmer (Brümmer) to represent them. Brümmer was also
appointed to represent 3 other accused, namely accused no’s 6, 7 and 20. By
this time the trial record comprised more than 5000 pages and the police docket
consisted of 16 ring binder files, all of which Brümmer was required to study and
consider.

[5] During November 2004 J and W terminated Brümmer’s mandate, alleging
that, because of his workload, he was unable to devote sufficient time to
safeguard their interests and that they had thus lost confidence in his ability to
represent them effectively. He consequently withdrew as their legal
representative. Brümmer was required to report to the Board concerning his
reasons for withdrawing, which he duly did.

[6] In Brümmer’s letter to the Board, dated 22 November 2004, he explained
that he had initially thought that there might have been a conflict of interests
between accused 20, on the one hand, and J and W on the other, and had
communicated this to the court believing that it disqualified him from continuing to
represent any of these accused. Later, after W had addressed the court,
Brümmer realised that his initial impression was incorrect and that in effect J and
W lacked confidence in his ability to represent them effectively.

[7] Whilst the trial proceeded on the basis that issues were being dealt with
that did not affect J and W and that there was therefore no immediate need for
them to have legal representation, the Board was nevertheless expected to
decide on its position concerning the termination of Brümmer’s mandate
speedily.

[8] The Board’s management took legal advice and did not reach a quick
decision. At the beginning of December 2004 the trial had reached a stage that
made it imperative that J and W be represented. The further cross-examination
of a crucial witness was postponed pending a decision by the Board.

[9] On 3 December 2004, a senior executive of the Board, Mr P J Brits (Brits),
wrote letters in identical terms to J, W and Brümmer. Since this letter set out the
attitude of the Board which ultimately led to the present litigation, it is necessary
to quote it in full:
‘Mr Brümmer’s letter of 22 November 2004 refers.

There is clearly not a conflict of interest between Mr Brümmer’s clients.
Our Legal aid Guide provides (chapter 3, paragraph 1.5):
“(b) An accused shall not be entitled, as of right, to the provision of a second or subsequent legal
practitioner on a legal aid basis if the accused has dismissed the first legal practitioner or has
caused the first legal practitioner to withdraw through lack of co-operation or otherwise, unless
the accused can satisfy the CEO that the first legal practitioner was dismissed or obligated to
withdraw for good cause.”
We have now had the advantage of consulting with senior counsel who confirms that what is set
out in the Legal Aid Guide is a correct interpretation of the Constitutional right to legal
representation at State expense.
No facts have as yet been put to us that would constitute “good cause” for either the dismissal of
Mr Brümmer by Messrs J Pretorius and W Pretorius or for his withdrawal from their
representation alongside his other clients.
All we have been told to date is that Messrs J Pretorius and W Pretorius no longer enjoy a
relationship of trust and confidence with Mr Brümmer. This conclusion has been presented to us
without any supporting facts. We in any event doubt whether our Constitution guarantees any
more than legal representation at State expense.
Mr Brümmer or his clients are at liberty to present facts to the Legal Aid Board in writing that
would justify the appointment of a second legal representative.” ‘
(Emphasis added).
A copy of this letter was sent to the trial judge (Jordaan J).

[10] In a letter dated 8 December 2004, after a consultation with a director of
the Board and J and W at C-max prison, Brümmer wrote to the Board, confirming
that in representing five accused he was confronted by a workload he was
unable to manage effectively. Brümmer provided details of the many tasks he
was expected to perform to properly represent the accused. He recorded that,
given the magnitude of the trial, he was required on a daily basis to complete a
summary of all the evidence to enable him to obtain instructions from each of his
clients. At that stage he was dealing with more than 9000 pages of evidence.
Each client had to be individually consulted to ensure confidentiality, candour and
trust. The consultations were not always restricted to the merits of the trial. They
included consultations concerning prison visits and transfers and bail applications
─ in the context of this long-running trial these issues arose repeatedly. It was

also expected of Brümmer to contact defence witnesses who are located across
the length and breadth of the country, to arrange consultations and to take
witness statements. Brümmer emphasised that he had reached a stage where he
just could not keep up with what was required of him. He reached the conclusion
that he could not do justice to his clients and could not afford them effective legal
representation. Brümmer criticised the Board for failing or refusing to understand
the time and volume pressures under which he was required to represent his
clients. He recorded that J and W were more demanding than the other three
accused he represented. He ended the letter by stating that it was only fair that J
and W be afforded alternate representation by the Board.

[11] On 11 December 2004, W wrote to the Board pointing out, inter alia, that
Brümmer was unable to devote as much time to his case as was necessary for
effective representation. He stated that Brümmer’s workload was far too heavy,
that he lacked time to perform essential tasks and was therefore unable to
provide effective legal representation.

[12] On 11 January 2005 Brits wrote to W, stating that that it was the Board’s
policy that an accused who had no good cause for dismissing his legal
representative may be required to represent himself and that a mere lack of trust
and confidence did not in itself constitute good cause. He also stated that an
accused who sought to have a second or subsequent legal representative
appointed by the Board would have to ‘show facts’ from which it could be
deduced that good cause had been established. In respect of W’s assertion that
Brümmer lacked time for preparation, Brits suggested that the appropriate
remedy was for Brümmer to request the court to adjourn to enable him to do
what was necessary. Brits stated further that he had consulted a Board
employee, Ms Veenendal (who, from the letter, appears to have been in
attendance at the trial) who had informed him that Brümmer was not, as
suggested by W, unprepared to cross-examine a witness, a Mr Van Zyl. Brits
went on to state that Brümmer had been prepared when he cross-examined Mr

Crous, an essential witness. (In his judgment dealing with J and W’s right to
separate representation the judge recorded that this statement by Brits was
incorrect as Crous had at that stage not yet been cross-examined by Brümmer.)

[13] Following on these exchanges J and W informed Jordaan J that they
intended to bring an application in terms of s 38 of the Constitution to compel the
Board to recognise their right to effective legal representation which was an
essential component of the right to a fair trial.

[14] On 22 January 2005 Brits wrote an uncompromising letter to Brümmer,
the material parts of which appear hereunder:
‘Your contract with the Legal Aid Board is for the representation of five accused. You are currently
representing three accused. The situation is untenable. Your erstwhile clients could be
prejudiced.
In the circumstances the Legal Aid Board offers to release you from your contract with immediate
effect and with no claims on either side except such claims as you may have for outstanding fees.
Alternatively, you are required to immediately recommence representation of accused 19 and 20
alongside your other clients. In the event of your clients refusing to be represented by you, the
Legal Aid Board would require an unequivocal written assurance that you are willing and able to
represent all five of the clients you contracted to represent.
Further alternatively, in the event of you failing to recommence compliance with your contractual
obligations by 10:00 on Friday 2005, the Legal aid Board will elect to accept your repudiation of
your contract as evidenced by your breach of the terms thereof. The Legal Aid Board will
thereafter proceed to appoint another legal practitioner to represent the five clients formerly
represented by you.’

[15] To enable J and W to bring the proceedings referred to in para [13],
Jordaan J contacted the Pretoria Bar, with a request that it appoint pro bono
counsel in this regard. Adv Klein was duly appointed. In the interim, W debated
with the trial judge as to whether the trial should continue even though witnesses
were testifying about events in which he and J were not directly implicated. He
pointed out that the question of common purpose was a continuing important
issue in the trial. Jordaan J recognised that to continue without J and W being

legally represented would cause problems and might prejudice them. He
undertook, in the event of alternative legal representation being procured, to
allow both of them to recall witnesses for further cross-examination. At this stage
the learned judge was rightly concerned about the integrity of the trial.

[16] During the first half of February 2005 Adv Klein lodged a ‘versoek van
beskuldigdes 19 en 21 dat die hof in terme van artikel 3B van Die Wet op
Regshulp 32 van 1969 optree’.
S3B(1) of the Act reads as follows:
‘(1)
Before a court in criminal proceedings directs that a person be provided with legal
representation at State expense, the court shall ─
(a)
take into account ─

(i)
the personal circumstances of the person concerned;

(ii)
the nature and gravity of the charge on which the person is to be tried or of which

he or she has been convicted, as the case may be;

(iii)
whether any other legal representation at State expense is available or has been

provided; and

(iv)
any other factor which in the opinion of the court should be taken into account;

and
(b)
refer the matter for evaluation and report by the board.’
Of course, this subsection should be seen against the Board’s objects, as set out
in s 3 of the Act, namely, to make available legal aid at State expense to those
who qualify for it and to ensure that the guarantee of legal representation at State
expense, if substantial injustice would otherwise result, as an integral part of the
right to a fair trial as contemplated in s 35(3)(g) of the Constitution, is met.

[17] Section 3B(2) of the Act reads as follows:
‘2(a)
If a court refers a matter under subsection 1(b) the board shall, subject to the provisions
of the Legal Aid Guide, evaluate and report on the matter.
(b)
The report in question shall be in writing and be submitted to the registrar or the clerk of
the court, as the case may be, who shall make a copy thereof available to the court and the
person concerned.
(c)
The report shall include ─

(i)
a recommendation whether the person concerned qualifies for legal

representation;

(ii)
particulars relating to the factors referred to in subsection (1)(a)(i) and (iii); and

(iii)
any other factor which in the opinion of the board should be taken into account.’

[18] On 14 March 2005 Jordaan J wrote to the Board. It is necessary to quote
the letter in full:
‘Mr Brümmer was instructed by the Legal Aid Board to represent accused nos 6, 17, 19, 20 and
21.
As you are aware accused nos 19 and 21 are of the opinion that the workload on Mr Brümmer is
too heavy which results in them not being effectively represented in this case.
As a result thereof they indicated during November 2004 that they no longer wish to be
represented by Mr Brümmer. Since November 2004 accused nos 19 and 21 have been
appearing in person.
The circumstances of this case may warrant that a direction in terms of section 3B of Act 22 of
1969 (as amended) be made that accused nos 19 and 21 be provided with alternative counsel. I
am therefore considering such a direction and hereby refer the matter to you for evaluation and
report.
I shall appreciate it if you would take the following into consideration:
(i)
It is common cause that the personal circumstances of the accused justifies the

appointment of legal assistance to them at state expense.
(ii)
The nature and gravity of the charges speak for themselves. The charges include high

treason and murder to mention but two of the 43 charges.
(iii)
Although Mr Brümmer has been instructed by the Legal Aid Board to appear on behalf of

accused nos 19 and 21 the practical situation is that they are at the moment

unrepresented. Prima facie I am of the view having regard to the evidence that has been

led so far before me, that the perception of the accused that the workload of Mr Brümmer

is too high to represent all five of the accused assigned to him, is not without merit. I am

further of the opinion that what is envisaged by the Constitution and the Legal Aid Act is

that effective legal representation be provided at state expense to an accused.
(iv)
Substantial injustice may well result if the present situation is allowed to persist, and if the

situation persists it may well be argued that the accused did not have a fair trial in the

event of them being convicted. I am of the view that the case against accused nos 19 and

21 should not proceed without at least considering a direction that other counsel be

provided at state expense.

A direction in terms of section 3B would not necessarily mean that a new counsel or attorneys be
appointed on their behalf as there are legal representatives appearing at present in the case
available to represent them without the danger that there will be a conflict of interests.
I hereby direct that the report reach me within two weeks from date hereof.’
(Emphasis added).

[19] On 17 March, by which time the impasse had not been resolved, one of
the other accused in the trial brought an application in which J and W had an
interest. It now became essential that they be represented.

[20] On 7 April 2005 the attorney representing the Board replied to Jordaan J:
‘. . .
Our client has carefully considered the contents of this letter and is of the respectful view that:

1.
It has complied with its obligations in terms of the Constitution and the Legal Aid

Act to provide accused no’s 19 and 21 with legal representation at their trial. This

was done by appointing Adv BJ Brümmer to represent them.

2.
Inasmuch as Adv Brümmer has indicated in open court that he is willing and able

to continue to represent accused 19 and 21 and further, inasmuch as it is

common cause  that Adv Brümmer has provided these two accused with proper

and effective legal representation at their trial, their reasons for stating that they

no longer wish him to act on their behalf are without foundation.

Accused 19 and 21 have been advised that the Legal Aid Board is prepared to

continue to instruct Adv Brümmer to appear on their behalf, but they have elected

not to accept this offer. This offer was conveyed to the accused by Adv Klein who

also conveyed their decision to the Board’s representative.

We are also, in this regard, instructed to respectfully draw your attention to the

provisions of Section 1(5)(b) of Chapter 3 of the Legal Aid Guide which reads as

follows:

. . .

It is the Board’s contention that accused no’s 19 and 21 have not satisfied its

CEO that Adv Brümmer’s services were terminated for good reason.

It is therefore the Legal Aid Board’s respectful view as conveyed to the court, that

if accused 19 and 21 are dissatisfied with the Board’s decision to continue

instructing Adv. Brümmer to act on their behalf and not to appoint a new

legal representative for them, it is open for them to take the decision on review

before an appropriate court. The Board agrees that it is common cause that

accused 19 and 21 are entitled to legal assistance at state expense. It is for this

reason that Legal Aid was granted to them and Adv Brümmer was appointed. It

is respectfully submitted that the question in issue at this stage is whether in the

circumstances which prevail the Board is obliged to appoint a second legal

representative. In the circumstances it is the Board’s contention that

Section 3B of the Legal Aid Act has no application in this matter at this stage

because the Board has already appointed Adv Brümmer to represent accused

No’s 19 and 21 and is prepared to continue to do so. If these accused elect not to

accept the Board’s decision as stated above, it is open for them to take the

Board’s decision on review.’

[21] Jordaan J decided that the question of the applicability of s 3B of the Act
should be argued before him. Another request for assistance was made to the
Pretoria Bar, which responded admirably. Senior and junior counsel were
assigned to represent J and W on this issue.

[22] The Board was represented and persisted in its position as reflected in its
last written communication to the trial judge. The Board chose not to provide a
report to the court below, contending that s 3B of the Act was inapplicable. The
Board submitted that, in the event the court decided otherwise, it should then be
afforded an opportunity to provide a report. This was ultimately rejected by the
judge who held, that given the Board’s intractable attitude as reflected in the
correspondence, no purpose would be served by doing so.

[23] The Board adopted the attitude before Jordaan J that J and W ought to
have taken the Board’s decision not to provide alternative representation on
review and that that was the only path through which they might secure relief.
Jordaan J rejected this too, stating that review proceedings were time consuming
and expensive and therefore inaccessible to indigents.

[24] In his judgment on the issue Jordaan J considered that an indigent
accused could apply for legal aid in the conventional manner or a court could,
following the prescripts of s 3B of the Act, direct that representation be afforded

to him. In his view the provisions of s 3B did not bind a court to the
recommendation or report by the Board. He accepted that in making such a
recommendation the Board was bound to follow the Legal Aid Guide in
determining whether such a person met the criteria for the provision of legal
representation at state expense. In his view the court was not so bound. He
stated further that when a court decided to make a direction in terms of s 3B the
provisions of the Legal Aid Guide are no longer applicable.

[25] Jordaan J rightly held that the provisions of s 3B had to be construed
against the fundamental rights guaranteed in the Constitution. He went on to
consider the stage the trial had reached and the attitude of the leader of the
prosecution, a senior advocate and a deputy director of public prosecutions who
expressed himself on the issue as follows:
‘[D]it word gevra dat twee onverdedigde beskuldigdes hulself moet hanteer, die staat sê
eenvoudig dit kan nie gebeur nie en dan daarna gesê word dit is ‘n billike verhoor nie. Dit is net
onmoontlik . . . [D]ie hof moet onthou . . . mnr Brümmer het aanvaar. Hy het sy werk begin doen
en toe op ‘n stadium . . . gesê . . . ek kan nie verder nie.’

[26] In his judgment, Jordaan J observed that the legal issues in the case were
of a complex nature and that the law of common purpose is a minefield, even for
an experienced jurist. In the trial he would be called upon to consider whether J
and W were responsible for acts committed by others in their absence. The
question might arise whether, on the evidence, they are guilty of attempted
murder on President Mandela or whether any acts found to be perpetrated by
them were merely preparatory acts. Foreseeability might also become an issue.
The evidence-in-chief of Crous, the witness implicating them directly, runs into
almost 500 pages. His uncompleted cross-examination consists of approximately
1000 pages. The judge stated the following:
‘To expect of a layman to cross-examine him, is asking the impossible. As presiding judge who is
acquainted with the evidence led so far, I state that as a fact categorically.’
(Emphasis added).

[27] The following part of the judgment is significant:
‘Neither I, nor the Legal Aid Board, are privy to the nature and magnitude of Mr Brümmer’s
instructions from the accused. I can only draw from what I have seen and heard in this case so
far and my experience in the law as practitioner and judge. The evidence of Crous alone led me
to the conclusion that the fears of accused no’s 19 and 21 that, in spite of the apparent abilities of
Mr Brümmer, they will due to his workload, not be effectively represented, are well founded.’

[28] In the result, Jordaan J held that that the representation provided by
Brümmer could not be said to constitute effective representation, and, since that
standard was required by the Constitution, he made the following order:
‘In terms of section 3B of the Legal Aid act, in the interests of justice and in order to ensure that
this trial will remain fair, I direct that accused no’s 19 and 21 be provided with alternative legal aid
at state expense forthwith.’

[29] The Board provided the alternative representation as directed. They
nevertheless applied for leave to appeal on the basis that the issue was one of
principle that was wrongly decided and that it should be reconsidered on appeal.
The court below refused to grant them leave to appeal. This matter is before us
in terms of a direction of this court, in terms of s 21(3)(c)(ii) of the Supreme Court
Act 59 of 1959, that the application for leave to appeal is referred to oral
argument and that the parties be prepared, if called upon to do so, to address
this court on the merits.

[30] In 1988 Didcott J in S v Khanyile 1988 (3) SA 795 (N) asked the following
question (at 810G-H):
‘And if a lawyer’s participation is deemed essential to the fair trial of somebody who has one
either at hand or in mind, why should it be thought inessential to the fair trial of a man with
nobody to whom to turn because he cannot afford the expense?’
At 815D-F, in arriving at his conclusion that to deny legal representation in
certain circumstances might render a trial unfair, the learned judge followed the
approach adopted earlier in the United States of America, in the case of Betts v
Brady (1941) 316 US 455 (the right to representation has since been widened in

that country1). He held that in order to decide whether a trial was vitiated by a
lack of legal representation a court had to take into account three factors:
(i)
the inherent simplicity or complexity of the case;
(ii)
the degree of intelligence, maturity and abilities of the accused;
(iii)
the gravity of the case.
These considerations are presently telescoped in the provisions of s 3B(1)(a) of
the Act.

[31] Of particular significance is the following passage from Khanyile (at 815I-
816D):
‘What should be done in every trial . . . in which the person charged enters the dock with no
lawyer defending him not because he has chosen freely and deliberately to dispense with one,
but because he is too poor to pay for him[?] . . .[T]he judicial officer should examine all three
aspects of the matter and illicit all the information which has a bearing on them. He should weigh
the circumstances thus established by or otherwise apparent to him, together with any more of
which he learns that are particular and pertinent to the case on hand. And he should ask himself
whether their cumulative effect is such that the man would be placed at a disadvantage palpable
and gross, that the trial would be palpably and grossly unfair, were it to go ahead without a lawyer
for the defence. . . . If he answers the question in the affirmative, he should refer the case at once
to those administering the legal aid scheme or to one or another of the various associations of
lawyers that are willing and keen nowadays to offer assistance pro bono. He should decline to
proceed with the trial, furthermore, until representation is procured through some such agency.
(Emphasis added).

[32] Subsequently, in S v Rudman; S v Mthwana 1992 (1) SA 343 (A), this
court had the opportunity to consider the Khanyile decision. It was called upon to
decide to what extent the state should be obliged to provide legal representation

1 In Gideon v Wainwright (1963) 372 US 335 the court held that all persons charged with a
serious crime were entitled to representation. In Argersinger v Hamlin (1972) 407 US 25 it was
held that no person may be imprisoned for any offence whether classified as petty,
misdemeanour or felony, unless he was represented by counsel at his trial.

to accused persons. This court failed to confirm the Khanyile ‘rule’, holding (at
377B-C):
‘The Court of Appeal does not enquire whether the trial was fair in accordance with “notions of
basic fairness and justice”, or with “the ideas underlying . . . the concept of justice which are the
basis of all civilised systems of criminal administration”. The enquiry is whether there has been an
irregularity or illegality, that is a departure from the formalities, rules and principles of procedure
according to which our law requires a criminal trial to be initiated or conducted.’

[33] Our new constitutional dispensation changed the landscape dramatically.
Section 25(3)(e) of the interim Constitution read as follows:
‘Every accused person shall have the right to a fair trial, which shall include the right ─
. . .
(e)
to be represented by a legal practitioner of his or her choice or, where substantial
injustice would otherwise result, to be provided with legal representation at State expense, and to
be informed of these rights.’
In Tshabalala & Others v Attorney-General of Transvaal & Another 1996 (1) SA
725 (CC) para 28-29 Mahomed DP considered the above quoted dictum from
Rudman and observed that the Constitution imported a radical movement away
from the previous state of the law. We are primarily and continuously concerned
with basic notions of fairness and justice. These are values that underpin our
Constitution.

[34] Section 35(3)(g) of the Constitution provides that every accused person
has the right to a fair trial, which includes the right ‘to have a legal practitioner
assigned to the accused person by the state and at state expense, if substantial
injustice would otherwise result, and to be informed of this right promptly;’. In
deciding whether substantial injustice would otherwise result if legal
representation at state expense is not provided, the factors set out in s 3B(1)(a)
must of necessity be considered.

[35] The material part of s 38 of the Constitution reads as follows:
‘Anyone . . . has the right to approach a competent court, alleging that a right in the Bill of Rights
has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights. . . .’

[36] This general power granted to courts should be seen against the duty of
judicial officers to ensure that criminal trials are conducted in accordance with
notions of fairness and justice. Section 3B recognises the role of a court in
criminal proceedings to ensure that a trial is fair. A court which decides at the
commencement of a criminal trial or in media res that substantial injustice might
result if a legal representative is not assigned at State expense has the power, in
terms of the Constitution, to make an order to that effect. Section 3B fits in neatly
with the constitutional scheme.

[37] Section 3A(1)(b) makes the Legal Aid Guide binding on the Board, its
offices and employees. Section 3A(3) provides:
‘Whenever the Board considers an application for the rendering of legal aid, other than a matter
referred to the Board in terms of section 3B(1), and whether the application is made in terms of
section 25(1)(c) or (3) (e) of the Constitution or otherwise, the Board shall apply the provisions of
the Legal Aid Guide.’
This subsection recognises that the Board’s functions and operations are distinct
from the responsibilities of a trial judge when he or she considers whether to
issue a direction in terms of s 3B(1). It does not oblige the trial judge to follow the
Legal Aid Guide in deciding whether an accused is entitled to legal
representation. Naturally, in terms of s 3B, a trial judge has to consider the report
by the Legal Aid Board and will take into account what the Board has to say.

[38] Section 3B(2)(a) it will be recalled, obliges the Board, in reporting to the
court, to provide its evaluation and report ‘subject to the provisions of the Legal
Aid Guide’. This provision too, deals with the Board’s obligations and not the
judge’s role in regulating the trial.

[39] There is no force in the submission by counsel for the Board that, by
making the order in question, Jordaan J usurped the Board’s statutory authority.
It is common cause that J and W qualify for legal representation at State expense
and that substantial injustice might arise if J and W continue participating in the
trial without legal representation. The Board, on the one hand, and counsel for
the defence and the State on the other, differed and continue to differ on whether
J and W were entitled to insist that, because Brümmer has too great a work
volume, they were entitled to alternative legal representation.

[40] Jordaan J was rightly concerned about the integrity of the trial. The
learned judge, motivated as he clearly was by considerations of fairness and
justice, sought the Legal Aid Board’s views on whether he should issue a
directive in terms of s 3B. His intimate knowledge of the trial led him to present
his prima facie views to the Board concerning the question of whether, in the
circumstances, Brümmer could represent J and W effectively. The Board chose,
after taking legal advice, to submit that s 3B was inapplicable and that J and W’s
remedy lay in a review.

[41] The constitutional right to counsel must be real and not illusory and an
accused person has the right to a proper, effective or competent defence. See
S v Halgryn 2002 (2) SACR (SCA) para 14. This must now be considered
axiomatic.

[42] In the event of a mistrial due to lack of effective representation the
responsibility lies at the door of the trial judge. Jordaan J was not usurping the
Board’s powers or taking over its tasks and responsibilities. He was intent on
ensuring a fair trial for J and W. It has not been suggested, nor can it be, that his
concerns were not genuine. These concerns were shared by Brümmer and by
the State. Jordaan J was acting within his constitutional duties as a judge in a
criminal trial. In this regard the dictum from Khanyile quoted in para [32] above is
apposite. His conduct was commendable.

[43] The learned judge was correct to reject the notion that review of the
Board’s decision was the only appropriate remedy on the basis of the reasons
stated by him in para [24] above. Furthermore, it should be borne in mind that
criminal trials, particularly one such as the trial in question, should be expedited
rather than sidetracked. In any event, as pointed out repeatedly above, a
decision on the fairness of a trial is rightly within the province and power of the
presiding judicial officer. Jordaan J was correct to resort to the provisions of s 3B
of the Act. The Board was wrong not to respond and provide the report and
evaluation envisaged in that section. The responsibility and the power to issue a
direction in terms of that section vests ultimately in a court. In the present case
the Board acquiesced in the order made by Jordaan J. Its present endeavours
are based on a misconception of a trial judge’s powers and of its own.

[44] I pause to record this court’s appreciation of the appearance by
adv G T Langenhoven, pro amico on behalf of J and W in the best traditions of
the Bar.

[45] For all the reasons stated, it is clear that the standard test for granting
leave to appeal has not been satisfied. Consequently the application for leave to
appeal is dismissed and the matter is struck from the roll.

_________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:

HARMS

JA
STREICHER
JA
BRAND

JA
VAN HEERDEN
JA