THE HIGH COURT OF SWAZILAND
the matter of
MABUZA 1st Respondent
OF POLICE 2nd Respondent
THE APPLICANT: MR. P. FLYNN
THE RESPONDENT: MR. J.M. DLAMINI
U D G M
application raises the important question of the right of an
individual held in custody by the police to have access to his
lawyer. The facts of the case are not now of any real consequence
because the hearing of the application has been overtaken by events.
On the one side a practising attorney claims that certain police
officers refused him permission to consult with his client while the
latter was in police custody: on the other side the respondents deny
any knowledge of the applicant ever seeking such permission.
Wherever the truth may lie the parties accept that further
investigation of the facts would be pointless as "the client"
in question is no longer in police custody having been duly tried and
sentenced to a term of imprisonment. However, as the Court is seized
of the matter and as the applicant wishes to have a ruling on the
question whether a detained person has a right of access to his
lawyer and whether a lawyer has a right of access to his client when
in detention I shall proceed to
the arguments advanced.
many countries, certainly in the many Commonwealth countries which
have accepted a written Constitution, the right of an individual to
have access to his legal adviser is entrenched in the Constitution
itself. In many of the countries which do not have a written
Constitution the right is to be found in the Common law having
its roots in the acceptance by civilised societies that it is in the
interests of justice that a person accused of crime is entitled to
have legal representation and as a corollary thereof has a right to
seek legal advice, Swaziland in no exception.
having no written Constitution guaranteeing civil liberties the
common law recognises the fundamental right of every individual
freely to obtain legal advice and assistance. See Brink and Others v
Commissioner of Police 1960 (3) S.A. 64; Mandela v Minister of
Prisons 1983(1) S.A. 938. And as was said by Jansen J.A. in Mandela's
principle a basic right must survive incarceration except in so far
as it is attenuated by legislation, either expressly or by necessary
implication, and the necessary consequences of incarceration."
right to have access to a legal adviser has also received statutory
recognition. Section 93 of the Criminal Procedure and Evidence Act
to any law relating to the management of prisons or gaols, the
friends and legal advisers of an accused parson shall have access to
accused person shall be entitled to the assistance of his legal
advisers while the preparatory examination is being held."
Deputy Attorney-General submits that this provision only applies to a
person actually charged with an offence but I see no reason to give
it such a restricted meaning. If a person has been taken into police
custody on suspicion of having committed an offence and is held by
the police pending investigations he is in reality an accused person
and as much in need of legal advice as a person who has been formally
charged on completion of the investigation. In any event, whether
Section 93 should be given a narrow or wide construction the fact
remains that the common law recognises the right of access to one's
legal adviser whether one is sitting in one's office or home or
sitting in a police charge office while enquiries are being carried
Deputy Attorney-General doss not contend that a person held by the
police, whether on a charge or pending investigations, does not have
a right of access to his legal adviser but contends that such a right
is not an absolute right and that it is the right of the person
detained and not that of his lawyer. Dealing with the second point
which is directed to the locus standee of the applicant in the
present case I can see no reason in principle why a lawyer, duly
instructed on behalf of a person being detained by the police, should
not have as great a claim to a right to see his client so as to take
his instructions or tender such advice as is being sought as the
client has to see his lawyer. Usually an application such as the
present one will be brought in the name of the client but if
exceptionally it should be brought in the name of the client I see no
reason for finding that it is technically incorrect. In substance it
is seeking to enforce the fundamental right already referred to.
first submission made by the Deputy Attorney-General does, however,
have more force. No case has been cited to me in which the Courts
which apply the Roman Dutch law have qualified the fundamental right
of a person apprehended or arrested by the authorities to have access
to his lawyer nor have I bean able to find any myself but it
no means follows from this dearth of authority that the right must be
an absolute one not qualified by or subject to other considerations.
As I have said, the right has its roots in what the Courts see to be
the interests of justice or, perhaps, in the fundamental principle of
natural justice, and there is more than one side to what is in the
interests of justice. While the Courts are deeply concerned to
protect the interests of the individual they are also concerned to
ensure that the interest of the public at large in seeing that crime
does not go undetected is not unduly interfered with.
I have seen no formal adoption by the judges of Swaziland of the
Judges Rules published in England in 1964 I have, while sitting in
another capacity, been informed by the Director of Public
Prosecutions that as a matter of settled practice the judges of
this Court have applied these rules and certainly that has been my
practice. The appendix to these rules refers to five "principles"
the third of which is:
every person at any stags of an investigation should be able to
communicate and to consult privately with a solicitor. This is so
even if he is in custody, provided that in such a case no
unreasonable delay or hindrance is caused to the processes of
investigation or the administration of justice by his doing so."
proviso clearly recognises the need to achieve some balance between
the rights of an individual and the due administration of justice
when seen in a wider context. As the judges of this Court have for
many years recognised the English judges rules incorporating the
foregoing "principle" together with its proviso I would
require strong reason for finding that our common law, while
recognising the basic right of access to a legal adviser, does not
also recognise that such right must, in certain circumstances, give
way to other weighty considerations.
only argument Mr. Flynn was able to advance in support of his
proposition that the right of access to a lawyer is an absolute one
is that to hold otherwise would be dangerous in that it would open an
avenue for abuse. I accept that there is, indeed, a risk of abuse but
not, I think, a great one. A person held in custody has a right to
consult his legal adviser at the earliest possible moment and if the
exercise of that right is to be held in abeyance the burden is on the
police to show that such a consultation would unreasonably delay or
hinder their investigation or the administration of justice. The
emphasis should be on "reasonableness". The police may well
consider it undesirable that a suspect should be advised by his own
attorney of his right to say nothing of of the undesirability of
answering certain questions but that would not be a "reasonable"
cause of delay or a "reasonable" hindrance to the processes
of investigation. Indeed I apprehend that the circumstances in which
the police could legitimately refuse a suspect access to his lawyer
would be very limited as where, for example, there is a real risk
that the lawyer might, unwittingly or even, perhaps, intentionally
warn others involved in the crime being investigated and thus provide
the opportunity for offenders to escape justice or destroy evidence.
In such circumstances the police would be under an obligation to
pursue their enquiries swiftly so as not unreasonably to curtail the
suspect's right to consult his lawyer.
remaining matter is the question of costs. As 1 indicated earlier the
allegations made by the applicant are hotly contested and the issues
of fact cannot be resolved without further investigation. For the
reason I have given it was decided that such further investigation
was not warranted. In these circumstances I consider it would be
right to make no order on the application and no order for costs.