THE Constitution of Zimbabwe guarantees the right to a fair trial. Connected to this right is the right to be represented by a legal practitioner of one’s choosing.
However, in some cases, litigants choose to represent themselves in legal proceedings.
This is a perfectly normal and procedural thing to happen. It must be kept in mind though that the implications of self-acting are real, in that any adverse court order granted against you cannot be wished away.
It has real implications on one’s rights, finances and sometimes, freedom.
In this piece, I will discuss the benefits and dangers of self-acting (representing oneself) in legal proceedings before any tribunal or court of law.
When self-acting works
Self-acting is often an acceptable approach to take when one has had some legal training of some sort. This helps one appreciate the legal arguments that need to be made and, sometimes, how to make them. In cases that are not complex, self-actors have been known to triumph.
For example, in the case of Kazingizi v Samuel & Others HH 317/15, a self-actor went up against several other self-actors and won.
His claim was for the eviction of individuals who were illegally settled at his farm.
The point here is that even though Kazingizi won the case, had he been legally represented, he could have won the case a lot sooner because of the gaping holes in the defence that a legal practitioner would have picked up quickly and finessed into a favourable court order through a settlement.
The court in that case said, “if the parties were legally represented, the matter could have easily been resolved at the pre-trial conference stage.”
When self-acting goes wrong
The main danger of self-acting in my view is that litigants almost always do not completely understand what it means to be in court. When an adverse order is granted against you, you have to comply with it even if you do not agree with it.
The idea, therefore, is to avoid such an order being granted in the first place. A court order must, as a matter of law, be complied with. The court in Sithole v Sithole HH 139/18 said that, “failure to comply with a court order has the effect of injuring the rights of the other party.”
This simply means that even after an order is granted against you, failure to comply with it exposes you to further liability.
I will use the example of an individual who is arrested for reckless driving in terms of the Road Traffic Act [Chapter 13:11] to demonstrate why it is important to be represented by a legal practitioner in legal matters, especially criminal matters, as they have a direct impact on one’s freedom.
To begin with, one must appreciate the gravity of the offence before they can begin to craft a defence. Traffic offences that have to do with negligence are graded according to seriousness of the offence.
Firstly, there is driving without due care and attention, which attracts a fine and/or imprisonment for up to six months.
Secondly, there is negligent or dangerous driving. This expands on driving without due care and attention by directing the court to consider the nature and use of the road and the amount of traffic on the road. This attracts a penalty of fine and/or imprisonment for no more than six months.
Lastly, there is reckless driving. This charge is unique in that if one is charged with reckless driving, they can also be found guilty of an offence under driving without due care and attention and negligent or dangerous driving.
The court in Mambara v The State HH 126/20 held that “a finding of reckless driving directs the court to sentence the accused in terms of section 53(4) of the Road Traffic Act…for a period not exceeding 15 years and not less than two years unless there are special circumstances.”
The accused in this instance drove a public service vehicle, which attracts a heftier penalty.
The point is that if a self-actor walks into court thinking that he/she will simply get a slap on the wrist and go about their day, they have it completely wrong. They must appreciate the potential orders a court may make. Further, and equally as important, is that they should be alive to any misdirections a court may make, either in application of substantive or procedural law or in failing to consider pertinent facts.
This gives a litigant the option to review the proceedings or note an appeal to the High Court. If such inconsistencies are not noted and addressed fully in good time, an accused person may face a jail term or any other penalty the court subjects them to needlessly.
At the end of the day, being legally represented is one’s constitutionally protected choice. I would encourage anybody facing legal action of any sort to exercise that right and get the full protection of a legal practitioner, even if a case seems simple and harmless.
Muza is a duly admitted legal practitioner and litigation specialist. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628