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Criminal Procedure - Chapter 4 - Coggle Diagram
Criminal Procedure - Chapter 4
Legal professional privilege requirements
The communication must have been made for purposes of obtaining legal advice
The advice must not facilitate the commission of a crime or fraud and
The advisor must have been consulted in confidence
The privilege must be claimed
The legal advisor must have been acting in a professional capacity at the time
Legal representation - pre-trial stage
Constitution S35(2)(b)
Suspects - S v Orrie
Identification parades - suspects should be given an opportunity to obtain a legal representative to be present
Detained persons - right to legal representative of their choice and informed of this right
Constitution S25(2)(c)
Legal representative assigned by the state at state expenses - test substantial injustice
S v Lusu - reasonable opportunity to obtain legal assistance
Legal representation - attorney-client relationship
Contractual basis (mandate)
Ethical aspects - also effective representation - S v Mofokeng
Not employment relationship
Legal professional privilege - Thint
Legal representation - during trial
S v Sibiya
Constitution S35(3)(g)
Promptly informed, at state expense, substantial injustice
Constitution S35(3)(f)
Legal representative of choice and informed promptly
Legal aid
Nature and gravity of charge / conviction
Representation is available / has been provided
Personal circumstances
Any other relevant factor
S22 Legal Aid South Africa Act 39 of 2014 read with CPA S73(2A)
When may a legal representative be required to withdraw
Contradictory instructions from the client - client misleads or makes it impossible for the legal representative
Conflict of interest - two or more accused represented by one lawyer
Competent lawyering
Competent lawyering implies a high standard and a duty always to act in the best interests of the client
Objective test
Incompetent lawyering can wreck a trial, this violating the accused's fair trial right
The right to competent lawyering is not limited to the trial itself but extends to pre-trial legal representation as well