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By Daniël Eloff

Persons who are detained or arrested have certain rights under the Constitution. One such right is the right of an arrested and/or detained person to consult with a legal practitioner of their choice and to be informed of this right promptly in terms of s 35(2)(b) of the Constitution. Moreover, in terms of s 35(2)(c), if a person cannot afford legal representation and the lack of legal representation will cause substantial injustice, the state has to assign a legal practitioner of its choice to the arrested and/or detained person at state expense.

Legal representation is an important aspect of South African criminal law. Most often, arrested and/or detained persons may not be qualified or trained in the law, which might in turn mean that they are not aware of the full implications if they respond to the police’s request for cooperation and assistance at any time after an arrest. The presence of a legal practitioner is crucial in ensuring that this right, among others, is adhered to and protected during this time.

On arrest, it is often the case that the arrested and/or detained person is afforded an opportunity to contact a legal representative. The person may be given a landline at the police station to contact a family relative who in turn contacts a legal representative or alternatively the person could phone a criminal defence attorney directly themselves.

This article presents the notion that the rights to legal representation need to be reconsidered with particular reference to the ways in which legal representation is sought and obtained. The article also problematises the notion of the right to Google a legal practitioner, in terms of the Constitution.

Comparison

The Canadian Charter of Rights and Freedoms is a bill of rights that is entrenched in the Constitution of the country and it guarantees certain political and civil rights to every person in Canada. Rights in terms of the Charter may only be limited by law as can be demonstrably justified in a free and democratic society.

Section 10(b) of the Canadian Charter of Rights and Freedoms states that every Canadian citizen has the right to retain and instruct counsel without delay and to be informed of that right on arrest.

The South African Constitution in s 35(2)(b) states that every South African has the right to choose, and to consult with, a legal practitioner, and to be informed of this right promptly. This right is subject to s 36(1) that states that all rights including s 35 may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

Furthermore, s 73(1) of the Criminal Procedure Act 51 of 1977 (CPA) provides that: ‘An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest.’

The wording of both the rights of the arrested and/or detained person in the two jurisdictions are quite similar and its limitations in both instances are in wording at least, comparable.

R v McKay

In a 2013 Provincial Court of Alberta, Canada decision (R v McKay 2013 ABPC 13) a (at the time) 19-year-old was arrested and charged with driving while under the influence of alcohol.  When the police arrived with the arrested person at the police station his personal belongings, including his cell phone, were locked away at the station.

The arrested person was then afforded the opportunity to consult a telephone directory (an equivalent of the South African Yellow Pages) and to dial a toll-free number in order to practise his right to contact counsel. It became clear from the testimony of the accused that he was under the impression that he only had a single opportunity to attempt to contact a legal representative. After making his ‘one call’ the accused had not received any helpful legal advice yet abided with the outcome thereof.

At the trial the accused testified that he used Google (the online search engine) as his main source of information and that he did not consider the toll-free number as a viable option to search for legal representation. The court then dealt with the question of whether access to the toll-free number and the Canadian Yellow Pages equivalent amounted to a reasonable opportunity for the accused to contact counsel. The Canadian court held that reasonable opportunity is contextual and fact specific. In casu the court held that by not providing Internet access to the person arrested and/or detained the right in terms of s 10(b) of the Canadian Charter of Rights and Freedoms is violated.

The Crown (state) successfully appealed this decision by the Provincial Court of Alberta finding that it was not for the lower Canadian courts to ‘reassess social and technical conditions and change the law accordingly’ especially when taking into consideration that there was at the time binding precedent from higher courts. The appeals court held that given the contextual circumstances and particular set of facts in the Canadian court a quo that the police were not required to go beyond the steps that were required to provide an arrested and/or detained person with the reasonable opportunity to contact counsel. In the end the higher court held that the police fulfilled their obligations in terms of s 10(b) of the Charter despite not giving the accused the opportunity to conduct a Google search.

Nonetheless, the case poses an interesting question that is bound to become increasingly relevant as our lives become ever more interconnected and based online.

Right to Google an attorney in South Africa?

The R v McKay case poses the question (albeit theoretical for now) of whether, in the South African context and within our constitutional framework, arrested and/or detained persons enjoy the right to Google an attorney in terms of s 35(2)(b).

To answer this question constitutional interpretation is vital. The court held in the well-known case of S v Makwanyane and Another 1995 (3) SA 391 (CC) that the provisions of the Constitution (at the time when the case was decided the Interim Constitution was enacted) should not be construed in isolation, but in context, which includes the history and background of the adoption of the Constitution. The court further held that interpretation of rights and freedoms must be construed in such a manner that ‘secures for “individuals the full measure” of its protection’.

Furthermore, the interpretation clause of the Constitution in s 39 states that when interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.

In order for the right of the arrested and/or detained to choose, and to consult with, a legal practitioner to be construed in a manner that ‘secures for “individuals the full measure” of its protection’ the person should surely be able to make an informed decision when exercising their right in terms of s 35(2)(b).

For many people, when they are arrested it is the first time that they ever require the assistance of a legal practitioner. Many South Africans, therefore, do not know any legal practitioners to contact should they ever be arrested. To further complicate matters, many attorneys are not specialists in criminal law and do not have experience in this very specific field of law. It is, therefore, beneficial for persons to be able to not only contact a legal practitioner but for them to be able to do a quick Internet search to find a criminal defence legal practitioner. This manner of inquiry also enables persons to decide on which particular legal practitioner to approach, while taking into consideration the information available on the Internet. This could have cost saving implications to the arrested and/or detained person.

The vast majority of South Africans and especially South African youth grow up without knowing the existence of the Yellow Pages and/or the purpose it serves. For many South Africans Google or other search engines are the only viable way of searching for information. The Internet is used for almost all aspects of our lives. South Africans search for medical treatment, educational institutions, housing, governmental information and everything in between by using the Internet and particularly through search engines. The same could apply for arrested and/or detained persons when they wish to exercise their right in terms of s 35(2)(b).

Challenges facing the right to Google a legal practitioner

There are, however, a number of major matters to consider the question of whether or not arrested and/or detained persons should have the right to Google a legal practitioner.

The first hereof is obviously the budgetary challenges and restraints on resources that our country faces. Unlike the rights secured in terms of ss 26 and 27 of the Constitution, s 35 does not state that: ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’ due to the fact that s 35 is not a so called socio-economic right. It would seem that to find that s 35 includes the right to Google a legal practitioner, would be resource intensive in our resource-scarce country, simply because of the equipment required to fulfil such a hypothetical right.

The second matter relating to the right to Google a legal practitioner is to consider what ‘happens’ to that right when it is not physically or practically possible to provide for the realisation of that right? In this context how do we deal, for example, with the practical issue of when electricity and hence access to the Internet is unavailable at that specific time? Does this then entail that the right is not fully realised and, therefore, violated? Without delving too deeply into legal philosophy and the nature of rights, it is obvious that a right cannot exist subject to certain conditions. Rights should either exist by their very nature or they should not at all.

It could be argued that the right to Google a legal practitioner should not be considered a fundamental right in terms of the Constitution, but that it should rather be added as a legal right in terms of legislation with very specific qualifying wording and requirements.

Conclusion

Hypothetically to be able to Google a legal practitioner may enhance the principle that the right to legal representation also entails representation of a certain standard (S v Chabedi (SCA) (unreported case no 497/04, 3-3-2005) (Brand JA)). By being able to search with keywords for legal representation on arrest, legal practitioners who are familiar with the field of criminal law will be approached by the accused person.

Although the right to choose a legal representative is a fundamental right as enshrined in the Constitution ‘it is not an absolute right and is subject to reasonable limitations’ (Halgryn v S [2002] 4 All SA 157 (SCA)). It would seem that it is, therefore, required to find a balance between fulfilling this right to its fullest possible means while still adhering to reasonable and realistic limitations.

It would seem that, for now and in the rare instance that these circumstances ever happen, the courts would approach the matter on a case by case instance by taking the particular context and facts into consideration.

Just as the Internet is shaping how the rights to freedom of expression and access to information is practically exercised, so too will the Internet shape how our criminal law systems function.

Daniël Eloff LLB (UP) is a candidate legal practitioner at Hurter Spies Inc in Pretoria.

 This article was first published in De Rebus in 2019 (March) DR 16.