others that they had the right to be represented by a lawyer of their choice.
The Supreme Court held that this meant that they did not receive a fair trial.
The Supreme Court further held that every person has the right guaranteed
by Article 12(1) (e) of the Constitution to be represented by a lawyer of their
choice. A person who appears in court should therefore be informed of this
right. The only exception to this rule is when it appears that the person
already knows that he or she has this right. For example, a lawyer appearing
in court would know of this right. For this reason and other irregularities
during the trial, the Supreme Court set aside the conviction and sentence of
Mr Kau and the other persons.
In S.v. Gadu7, Manyarara AJ suggested a simple format to inform an accused
person of his/her right to legal representation:
a) that he has a right to be defended by a lawyer;
b) that he has the right either to hire and pay a lawyer of his choice or, or
alternatively apply to the legal aid officer for a lawyer to be provided by
the State;
c) that if he chooses to apply for a legal aid lawyer, the clerk of the court
will assist him in completing the necessary forms; and
d) that the legal aid office will consider his financial circumstances and,
based on its findings, it will decide and inform him whether he will be
required to make any contribution towards the cost of the legal aid
lawyer to be provided to represent him. In this instance, as in the other
matters, the failure by the magistrate to inform the accused of his
entitlement to legal aid is fatal”.
The right to administrative of justice in Namibia is quite distinct in that it has
been constitutionalized at independence. Article 18 of the Constitution
provides that “administrative bodies and administrative officials shall act fairly
and reasonably and comply with the requirements imposed upon such bodies
and officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the right to
seek redress before a competent Court or Tribunal”
From the aforesaid it is clear that a positive duty is placed on the public
administration to meet the requirements of legality, fairness and
7
S v. Gadu 2004 (NCLP 48 at 56
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