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Litigation: Husband thwarts wife over right to legal counsel

A Cape Town woman's successful bid to have her husband involuntarily sent to a drug rehabilitation facility has been set aside in the Western Cape High Court because he did not have a lawyer to speak on his behalf, reports News24. According to the judgment, which Judge James Lekhuleni handed down last week, the woman applied to the Magistrate's Court to have her husband, who is also unemployed, committed for six months so that he would stop using dagga and receive treatment for excessive sleeping, a short temper, and an inability to work or do household tasks. But the man wanted to be committed for no longer than three weeks. During the committal proceedings, the magistrate asked him if he had any questions for the social worker who presented her report to the court. That was when he raised his concerns over the length of time he would be away from home. He initially waived his right to legal representation, but in a remark to the magistrate during the proceedings he said: ‘ ... I did not know it would be such an intense legal questioning; could we delay to a point that I have a lawyer then, because I am out of my depth here, I am going to say something and I will regret it.' He added: 'I have got experts, doctors who could testify to my condition and to my needs, and right now, I feel as if I am in danger of having myself incarcerated for six months or a longer period. And I did not realize that I would be putting myself in that kind of a danger, when I came to court'. He did not say he wanted to represent himself either, it emerged in the judgment. However, the magistrate went ahead and ordered his involuntary committal to rehabilitation, treatment, and skills development for six months.


The case went to the High Court on automatic review, the News24 report notes. In the High Court judgment, Lekhuleni pointed out that section 35(3) of the Criminal Procedure Act stipulated that the person in respect of whom the inquiry is held: is entitled to legal representation; is entitled to cross-examine any witness and to call witnesses; may give evidence in person or through his or her legal representative; and may show cause why an order must not be made in terms of the subsection. He said an addict facing involuntary committal had a right to be heard, as well as a right to procedural due process, and added that the person should not be denied that just because he is considered to be intelligent and able to speak for himself. ‘All the more so, when the issue raised in the hearing relates to the deprivation of personal liberty of a person,’ Lekhuleni added. He set aside the order and ruled that the application for involuntary committal should start afresh. ‘It must be stressed that the right to legal representation is ensconced in the Constitution and should not be lightly dispensed with by courts,’ he said. Judge Constance Nziweni agreed.

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