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92 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 Counsel can, such as an argument that, although on the evidence the accused is probably guilty, he is not guilty beyond reasonable doubt.” Similarly, in Mc Innis v R, 38 Murphy J remarked quite pointedly that: “The notion that an unrepresented accused can defend himself adequately goes against experience in all but the rarest cases. Even an experienced lawyer would be regarded as foolish to represent himself if accused of a serious crime.” 39 Judicial enabling is a settled practice especially in magistrates’ courts. In this regard, judicial officers would ask the unrepresented accused pertinent questions and also give her an opportunity to speak. The judicial officer would outline the relevant aspects of the offence, point out possible mitigating factors to the accused and also provide general guidance on evidential matters. 40 The Criminal Trial Bench Book 41 specifically provides for judicial enabling. In this regard, judicial advice should be given to the unrepresented accused at the commencement of the trial, and where appropriate, as the trial proceeds. The judicial officer is thus under a duty to outline various procedural options, modes of objection, the order of evidence, the right to make submissions, the manner of leading evidence-in-chief, and the right to cross-examination. 42 4.3 Judicial enabling in South Africa Judicial enabling is underscored by sections 35(3)(f) and (g) of the South African Constitution. These provisions are set within the context of the right to a fair trial. Section 35(3)(f) which caters for the right to legal representation, demands that the accused be informed of the right. Section 35(3)(g) is to the effect that where it is necessary to provide the accused with legal aid, she should be informed of this entitlement. The courts have stated that the duty to point out the right to legal representation to the accused lies with the judicial officer. 43 Though the constitutional provisions relating to judicial enabling are 38 (1979) 143 CLR 575. 39 Ibid at p. 589. 40 C. Craigie, “Unrepresented Litigants: The Criminal Justice Perspective,” (2005), available at (last visited 5 October 2010); see also McPherson v R (1981) 147 CLR 512; R v Gidley (1994) 3 NSWLR 168. 41 Cited in Craigie, Ibid. 42 Ibid. 43 S v Pienaar 2000 (2) SACR 143 (NC); S v Radebe 1988 (1) SA 191 (T); S v Mabaso 1990 (3) SA 185 (A).
UNREPRESENTED ACCUSED IN BOTSWANA 93 limited to the right to legal representation, a number of cases impose a general duty on judicial officers to assist unrepresented accused persons. A general rule providing that judicial officers assist unrepresented accused persons is established in South African case law. 44 In this regard, judicial officers have a general duty to ensure that unrepresented accused fully understand their rights, otherwise, the trial may be rendered unfair. 45 This duty is said to have a close connection with the judicial oath to uphold the Constitution as well as the constitutional demand to promote the objects of the Bill of Rights, in the development of the common law. 46 Consequently, judicial officers have a duty, among others, to alert unrepresented accused of unfavourable presumptions, 47 the right to testify and the effect of failure to do so 48 and the purpose of cross-examination. 49 It is clear that judicial enabling is embedded in modern adversarial systems. In this regard, the gulf between adversarialism and inquisitorialism is bridged. Judicial guidance to the unrepresented accused is central to the right to a fair trial. The application of judicial enabling by the courts of Botswana puts their jurisprudence at par with those of other reputable legal systems. This element of collegiality is an important yardstick and a positive measure of the commitment of the courts of Botswana to fair trials. 4.4 In search of definition At the heart of the above cases which have embraced judicial enabling, is the recognition of the plight of the unrepresented accused in the criminal process and the corresponding need for judicial intervention. The judicial officer has become a third factor participant in criminal proceedings, the first and second factors being the prosecution and the accused respectively. As a third factor participant, the judicial officer exercises her duty in ensuring that the trial is fair. Judicial enabling can therefore, be referred to as a process wherein a judicial officer engages in a “hand-holding” process, guiding the unrepresented accused through the trial process by informing her of the procedures. Judicial officers have become more visible participants in criminal adversarial proceedings. 50 Effectively, the demand for fairness has resulted in a tripartite 44 S v May 2005 (2) SACR 331 (SCA). See also S v Ndlovu 2002 (2) SACR 325 (SCA); S v Mambo 1999 (2) SACR 421 (W); S v Manale 2000 (2) SACR 666 (NCD). 45 S v Radebe op.cit. note 43 supra. 46 Section 39(2) of the South African Constitution; see P.J. Schwikkard, “Does the Merging of Inquisitorial and Adversarial Procedures Impact on Fair Trial Rights,” available at http://www.isrcl.org/Papers/ Schwikkard> (last visited 6 October 2010). 47 S v Lango 1962 (1) SA 107 (N). 48 S v Makhubo 1990 (2) SACR 320 (O). 49 S v Lekhetho 2002 (2) SACR 13 (O); S v Mashaba 2004 (1) SACR 214 (T). 50 Steytler notes: “The court is obliged to inform the accused of some of his procedural rights and duties and to assist him in exercising some of those where he clearly experiences difficulty in doing so.” N.C. Steytler, The Undefended Accused on Trial, Cape Town, Juta & Co (1988), p. 222; J. McEwan, Evidence and the Adversarial Process (The Modern Law), 2 nd ed., Oxford, Hart Publishing (1998), p. 2.
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