that information about the rights of labour tenants and occupiers to a just and fair trial be disseminated as widely as possible. B  The issue of judicial officers informing litigants about their rights arose in criminal cases in the period before South Africa was a constitutional State. It is to that field of law that I look for guidance. The rights of an accused were then understood not to include the right to legal aid. The right of the accused was a right to representation, if he or she could afford it and obtain it. The question then arose whether the judicial officer was under a duty to C inform the accused of that right to legal representation.  The question arose crisply in S v Radebe; S v Mbonani . Goldstone J (Van der Merwe J concurring) referred to '. . . a general duty on the part of judicial officers to ensure that unrepresented accused fully understand their rights and the D recognition that in the absence of such understanding a fair and just trial may not take place'.  The Court held further as follows: 'If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no E reason why the right to legal representation should not be one of them . . . depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should be given a reasonable time within which to do so. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of F the judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice. I should make it clear that I am not suggesting that the absence of legal representation per se or the absence of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of justice. Each case will depend upon its G own facts and peculiar circumstances.'  This approach was followed in a number of cases culminating in the endorsement of the approach by the Supreme Court of Appeal.  Once it is found that there is a right to representation at State expense in certain civil cases, I can conceive of no logical reason why a judicial officer should not inform the person appearing H before him/her of that right, and how to exercise it. There is no logical basis for 2002 (2) SA p737 MOLOTO AJ distinguishing between criminal and civil matters. The issues in civil matters are equally complex and the laws and A procedures difficult to understand. Failure by a judicial officer to inform these litigants of their rights, how to exercise them and where to obtain assistance may result in a miscarriage of justice.
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- Fall '18