LFSA1500

PART B ASSIGNMENT
Facts
1. Two students from the university of Nambiana were arrested and charged with the
offence of malicious damages.
2. They were protesting over allowances and vandalised the gate by heavy stoning.
3. During their court appearance, one student pleaded not guilty and the other pleaded
not guilty and denied being at the university when the event took place.
4. They were sentenced to 2 years in prison and the court was to reconsider after their
sentence.
5. Lawyers were not permitted to work with the students even though they were willing
to.
6. The Judge applied law from another country.
7. The Prosecutor signed a deal accepting lesser charges and a fine with the students.
8. The student that pleaded guilty did not understand what he was pleading guilty to due
to the language barrier as he was from a French-speaking country.
9. He only knew that he was being sent to jail when the correctional services officers
came to take him away.

Issues
1. The students were denied legal representation which they were entitled to.
2. Law from a foreign country was applied.
3. They signed an agreement with the Prosecutor which was not honoured by the court.
4. There was a language barrier with one of the accused meaning he had no
understanding of the proceedings.
5. The sentencing which raises the question why they were sentenced if the court was
going to reconsider after they have served it.
LAWS
There are a handful of laws applicable to this case, each focusing on each issue raised by the
acts and decisions of the court. A few applicable are:

1. Section 35 (3) of the constitution, The right to legal representation applies to the fact
that the students were denied legal representation.
2. R
3. Section 105 (a) of the Criminal Procedures Act 51 of 1997 allows a charged person to
enter into a plea deal or agreement with the state for a lesser sentence which is drawn
up by the Prosecutor.
4. Section 35 (3) (k) of the Constitution confers for a fair trial which includes a person
being tried in the language they understand.
5. Criminal Law (Sentencing) Amendment Act, 2007 regulates the imposing of
minimum sentences for certain serious crimes.

Application
1. The students were refused legal representation even though there were lawyers who
wanted to work with them which was an infringement of their rights as the constitution
allows them that right, Section 35 (3) which allowed them legal representation. The
infringement of this right can invalidate the arrest and the charges. This is the
fundamental right that accused people are told off the moment of their arrest. The lack
of legal representation as in the case above leads to an unfair trial. According to
Bekker,2004 ‘It is legal representation that provides effective access to justice, and
access to a legal adviser is accordingly regarded by our law as a collar of the right of
access to the courts themselves.’
2. The application of foreign law raises the question of whether the arrest and charging of
these students was legal as they were sentenced on a law, they had no idea applied to
them. This questions the legality and suitability of the court’s decision.
3. The students signed an agreement accepting lesser charges and a fine with the
prosecutor which is binding but was not honoured by the court. This can be counted as
prosecutorial misconduct and a violation of a contract because the agreement binds the
 accused and the state. The breach of the contract by the state instantly makes the
agreement void and allows the accused to withdraw their guilty plea.
4. The student who pleaded guilty did not understand the proceedings of the court as he
was from a French-speaking country and had no interpretation of the charges and
consequences he faced. This raises the question of fairness in his trial. Section 35 (3)
of the South African Constitution Act 108 of 1998 which stands for a fair trial is
infringed. A fair trial is the fundamental core of justice. Being denied interpretation, he
was denied a fair and just trial.
5. Sentencing is regulated by the Criminal Law Amendment Act which was clearly
ignored as they imposed a sentence that was to be preceded by another for of
punishment after they have served their time.

Conclusion
There are many possible outcomes in this case.

1. The charges can be dismissed due to the lack of legal representatives as the accused’s
constitutional rights were infringed, Section 35 (3) (K) to be precise. Another possible
outcome would be a retrial or postponement of the trial and the employment of
another or different judicial officer.
2. The same applies with the failure to honour a plea agreement plus the possibility of
the sentence being changed.
3. Constitutional remedies will apply when faced with the issue of the language barrier
as the accused was not offered a fair trial thus violating Section 35 (3) of the
constitution Act 108 of 1998, the right to fair trial.
4. If the sentence is seen as inappropriate, then the case can be reviewed,
5. and the sentence modifies or fixed.