194.
The African Commission finds no reason to depart from this conclusion
arrived at by the Court of Appeal and in consequence holds that there has
been no violation of Art 7(1) (b) on this account.
Right to be assisted by Counsel
195.
On the question as to whether the appellant was adequately defended, the
AC
HP
R
Court of Appeal of the Respondent State had this to say.
“He was represented for some 5 1/2 months by Mr. Dikgokgwane whose crossexamination of those witnesses who were recalled was searching and vigorous.
The appellant in his evidence was well led and the submissions to the trial court
were full and detailed. At no time during the trial was there any complaint by the
appellant about the adequacy of Mr. Dilegokgwane‟s services, nor at the appeal
stage.
Appellant only raised the matter in the proceedings before Kirby J. Like Kirby J, as
stated earlier, I am of the view that the appellant was adequately represented----- I
am unable to find that he did not have a fair trial or that the adequacy or
inadequacy of his defense was such that it constitutes a special circumstance as to
why the doctrines of functus officio or res judicata do not apply and that on this
ground he be allowed a retrial.
196.
From this analysis of the Court of Appeal there is no doubt that the right
of the appellant to counsel of his choice was not undermined and that his
defence was conducted adequately. There was therefore no room for
invoking special circumstances warranting the ordering of a retrial. In light of
the above the African Commission finds that there was no violation of Article
7(1) (c) of the African Charter.
Delays in the Trial
54
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