oa Comparative and International Law Journal of Southern Africa - The undefended accused/defendant: a brief overview of the development of the American, American Indian and South African positions

Volume 24, Issue 2
  • ISSN : 0010-4051



South Africa has inherited the British adversarial system together with the rules and traditions of the English legal profession. Because the adversarial system is party-centred, lawyers for both the state and defence play a dominant role in the pursuit of procedural justice. However, as legal representation is available only at a price, it has remained the privilege of the few. In South Africa the majority of accused are indigent and consequently face a trial within the adversarial system without a defence lawyer. It is submitted that it is useful to consider the American experience: what has been attained over the years in respect of the "ordinary" American defendant is the goal for all accused in South Africa. On the other hand, as regards legal representation, the position of the American Indian defendant in a criminal trial in the tribal court is strikingly similar to that of his indigent South African counterpart.

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