Legislation appreciates critical role of legal representation

THE right to legal representation is enshrined in Section 69 (4) of the Constitution of Zimbabwe.

Every person has a right, at his or her own expense to choose and be represented by a legal practitioner before any court, forum or tribunal.

That this right falls under the right to a fair hearing in terms of Section 69 of the Constitution is significant. This right relates to civil and criminal proceedings.

The right to a fair trial or hearing is enhanced by the availability of a legal practitioner to a person who appears before a tribunal, court or any forum established by the law.

A litigant requires the guiding hand of legal counsel every step of the way in the proceedings against him. There is danger of conviction or losing a case because the litigant does not know how to establish his or her innocence or case.

A forum established by the law includes internal disciplinary hearings held at the workplace in terms of a code of conduct.

Deprivation of that right is a grave irregularity that necessarily breaches the right to a fair hearing.

In the case of Chanakira v Zimbabwe Post (Pvt) Ltd HH-110-16, the disciplinary committee denied the employee the right to legal representation. The company code of conduct provided that the employee may be represented by a trade union representative or a member of the workers’ committee which the disciplinary authority held to be excluding representation by a legal practitioner.

The code of conduct defined “member representative” as either a trade unionist or a member of the workers’ committee, and on that basis the company’s disciplinary committee refused audience to the employee’s legal practitioner. The employee took the proceedings to the High Court to have the disciplinary proceedings declared illegal on the grounds that his rights under Section 69(4) of the Constitution were infringed.

That right provides that every person has a right, at his own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.

The High Court held that the interpretation which the company’s disciplinary committee relied upon in denying the employee his constitutional right to legal representation was wrong.

The interpretation rendered the committee’s proceedings a nullity.

The court held that the right to legal representation cannot be taken away by any law or regulation. A law or regulation which is inconsistent with the Constitution in terms of Section 2 of the Constitution is, to the extent of the inconsistency, null and void. It is of no force or effect. So important is the right to legal representation that Section 41A of the Criminal Procedure and Evidence Act obliges the police to inform the arrested person upon arrest of his or her entitlement to a legal practitioner of their choice and to allow them to conduct, at the expense of the State, their legal practitioner. Where that legal practitioner is procured, the arrested person has a right to consult in private with that legal practitioner, and to be informed of this right promptly.

In terms of Section 191 of the Act, every person charged with an offence may make his or her defence at his or her trial and have the witnesses examined or cross-examined by a legal practitioner representing him or her.

In terms of Section 163A of the Act, an accused in Magistrate’s Court must be informed by the court of his or her right to legal representation at the commencement of any trial before the accused is called upon to plead to the summons or charge, and shall be informed by the magistrate of his or her right in terms of Section 191 to legal or other representation in terms of that section.

The magistrate shall record the fact that the accused has been given the information referred to in subs (1) and the accused’s response to it.

The provisions of Section 163A are peremptory and not directory. The court is required to give effect to a constitutional right of the accused to legal representation.

Section 70 of the Constitution provides for rights of an accused person. Relevant to the present subject are rights listed in paragraphs (d – f) of subs 1 of Section 70.

The details of the provisions are as follows: “70 Rights of accused persons…Any person accused of an offence has the following rights –….. (d) to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner.

(e) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result.

(f) to be informed promptly of the rights conferred by paragraphs (a) and (e).”

There can be no doubt that the legislature appreciated the critical and pivotal role of legal representation; hence it made the step a mandatory one.

Breach of that procedure renders the proceedings irregular.

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