There is no right to have an ongoing trial postponed for a lengthy period to allow an accused an opportunity to acquire income to secure the services of a preferred legal representative.

TimesLIVE notes the Constitutional Court made this ruling when it dismissed an appeal by nine men who had been convicted of various counts, including racketeering, theft and the acquisition, possession or disposal of unwrought gold. During their trial in the Free State High Court (Bloemfontein), which lasted for six years, the men – who were tried with others – sought several postponements so that they could raise funds to get the legal representative of their choice.

After their private lawyer withdrew in February 2014 because he had not been paid, the trial court made arrangements with the Bloemfontein Justice Centre to provide legal assistance. The Justice Centre advocate began to act for the accused from March 2014, but the accused terminated his mandate in early June while he was cross-examining the state’s last witness.

The state closed its case on 25 June. The accused did not cross-examine the state witness and refused to testify in their defence. Instead they sought a postponement for eight months to allow them time to raise funds to obtain a legal representative of their choice.

This was refused.

In August 2014 the court held that the unreasonable delays constituted exceptional circumstances as provided for in the Criminal Procedure Act and issued an order that the case of the accused was deemed closed and their defence amounted to a bare denial.

The accused were sentenced to prison terms ranging from 10 to 15 years.

Some of the accused applied for leave to appeal to the full Bench of the High Court, but this was refused, as was their bid to petition the SCA.

Before the Constitutional Court, the men said their right to a fair trial had been infringed because the trial court did not grant them a postponement to earn and save funds for their preferred lawyer, reports TimesLIVE.

The court did not agree.

In a unanimous judgment, Justice Nonkosi Mhlantla said although judicial officers also had a duty to inform the accused that if their legal representative withdrew, they have a right to apply for a postponement to enable another legal representative to be appointed, that ‘does not include a right to have an ongoing trial postponed for a lengthy period to allow an accused an opportunity to earn and save sufficient income to secure the services of a particular legal representative of their choice, since this may go beyond the bounds of reasonableness’.

Full TimesLIVE report

Judgment