About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 181
|
|
S v Kwaza and Others (SS68/2018) [2021] ZAWCHC 181; [2021] 4 All SA 906 (WCC); 2022 (1) SACR 64 (WCC) (9 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE
NO
: SS68/2018
DATE
:
2021/09/09
In the matter between:
THE
STATE
and
PATIENCE
KWAZA
Accused 1
LOYISO
LUDIDI
Accused 2
THANDO
CHWAYI
Accused 3
SIVUYILE
SHASHA
Accused 4
RULING
GAMBLE,
J
:
This is a
ruling which I am delivering.
1
This trial commenced on Tuesday, 3 August
2021 and was set down to run until Tuesday, 31 August 2021. It
is now Thursday,
9 September 2021 and the trial is far from
finished. In fact, the Court has only heard the evidence of
three witnesses so
far. The trial has been plagued by
postponements caused by a variety of factors, to which I shall refer
more fully shortly.
2
Mr Andile Gladile, counsel for accused 3
and 4, has requested the Court’s permission to withdraw from
the matter. An
application in this regard was brought from the
Bar on the morning of Tuesday, 7 September 2021 after it was
foreshadowed by counsel
in an email to this Court’s registrar
shortly after noon on Friday, 3 September 2021. The application
to withdraw has
two legs. Firstly, a lack of financial
instructions from the clients, and secondly, a prior commitment on
the part of counsel
to attend a part-heard matter in the Eastern Cape
Circuit Court currently sitting at
Lady
Frere
.
3
The Court indicated during the course of
the application for withdrawal on Tuesday past that it was
considering applying the provisions
of section 342A of the Criminal
Procedure Act 51 of 1977 to investigate whether there has been an
unreasonable delay in the completion
of these proceedings on the part
of Mr Gladile, and, if so, whether any order should be made under
section 342A(3). The Court
informed Mr Gladile of its intention
to conduct such an inquiry, and asked whether he wished to be
represented by other counsel
in relation to that inquiry. He
indicated to the Court that he would deal with the matter himself.
The Court then interrogated
certain issues, and its exchanges between
Mr Gladile and the Court are a matter of record.
4
In accordance with section 342A(2), I shall
list the various postponements in the matter, the causes therefore,
and the explanations
furnished in relation thereto.
4.1
The first postponement of the trial
occurred on Wednesday, 4 August 2021 when Mr Gladile was absent.
The prosecutor informed
the Court that he had received a telephone
call from counsel, who informed him that he had an upset stomach and
was unable to attend
court. The matter then stood down until
the following day.
4.2
On Thursday, 5 August 2021 Mr Gladile was
absent yet again. On this occasion he sent my registrar an
email at 09:33 in the
morning to the following effect:
“
Dear
Registrar. Receive my warm regards. I went for a medical
consultation yesterday due to an illness I had.
I had a
persistent cough, lack of appetite and a running stomach. I was
advised that I should remain at home for a period
of at least two
days. I have therefore been booked off for the day of 04 and 05
of July 2021. I was further advised
that if the symptoms do not
subside by the end of the day, I should go test for Covid-19. I
am therefore unable to attend
court proceedings today, and will come
tomorrow, the 06 July 2021.”
In the light hereof, and given that this Division does not sit in
trials on a Friday, the matter was postponed until Tuesday, 10
August
2021, Monday the 9
th
having been a public holiday.
4.3
On Tuesday, 10 August 2021 proceedings were
delayed by 35 minutes due to the late arrival of Mr Gladile. He
informed the Court
that he had returned to Cape Town from the Eastern
Cape over the weekend, and that the taxi transporting him had been
delayed.
The Court expressly enquired of Mr Gladile whether he
had been attending other court proceedings in the interim, and he
replied
that he had not. Mr Gladile was given a warning that if
he persisted in arriving late, he might be subjected to proceedings
for contempt of court.
4.4
On Wednesday, 11 August 2021 Mr Gladile
arrived late once again, approximately 35 minutes, and in this regard
he proffered the excuse
that the Uber that he had hailed to take him
to court had experienced a flat tyre en route to town. Mr
Gladile was given
another stern warning by the Court and urged to
take timeous steps to ensure that he was at court on time. He
was formally
cautioned that on the next occasion the Court would
consider conducting a formal inquiry in regard to contempt of court.
4.5
On Thursday, 12 August 2021 the prosecutor
requested that the matter be adjourned in order that he and others
could attend the funeral
of a fellow member from the offices of the
DPP. After discussion with other counsel, it was agreed that
the examination-in-chief
of the witness then in the box would be
completed, whereafter cross-examination would stand over until the
following sitting of
the court, which was Monday, 16 August 2021.
4.6
On Monday, 16 August 2021 the court
interpreter alerted the Court in chambers to the fact that she might
have been exposed to the
Covid virus through contact with a fellow
interpreter. She requested an opportunity to undergo testing,
and accordingly the
matter stood down until the next day. The
interpreter received a negative test result later that day, and
informed the Court
thereof.
4.7
At the commencement of proceedings on
Tuesday, 17 August 2021 Mr Gladile was once again absent, and arrived
35 minutes late once
again. No apology or explanation was
tendered by counsel, and he was then informed by the Court that a
formal inquiry for
contempt of the Court’s earlier orders would
be considered in due course.
4.8
On Wednesday, 18 August 2021 all legal
representatives were present, but accused 4 was absent. His
counsel, Mr Gladile, informed
the Court that his client suffered from
a chronic illness which required medical attention and for which he
had been referred to
the prison hospital at
Pollsmoor
.
The Court was further informed that accused 4 could only consult a
doctor on the following day, and for that purpose the
matter stood
adjourned until Monday, 23 August 2021.
4.9
Early on the morning of Monday, 23 August
2021 the Court received a message that there had been a calamity over
the weekend which
resulted in the High Court cells being flooded.
Given that the four accused in this matter are all in custody, they
were
not transported through to court that day from
Pollsmoor
Prison, and the matter was postponed until the
following day in their absence. It bears mention that Mr
Gladile was not present
in court on that day, and reported to the
Court’s registrar via a WhatsApp group that had been set up for
communication purposes
between her and counsel that he had attended
no less than two funerals over the weekend, and that he was
experiencing Covid symptoms.
4.10
At 14:41 on Monday, 23 August 2021 Mr
Gladile directed an email, with medical certificates as annexures,
which reads as follows:
“
Dear
Registrar. Receive my regards. I went to see a doctor at
the Michael Mapongwana Day Hospital in Harare, Khayelitsha
for a
check-up on the Covid-19 symptoms I had displayed. Attached
here to this email, a medical certificate. I have
been informed
that, as per the Government procedure and/or guidelines, I do not
have any chronic illnesses, and therefore I am
a low-risk
patient/person and I cannot be tested. I have been instructed
to quarantine for a period of 10 days in the meantime.
I am in
the hands of the Honourable Court. I do not know the standard
practice regarding people who have no chronic illnesses.
I hope
to hear from you before the end of business.”
4.11
On Tuesday, 24 August 2021 Mr Gladile was
not present in court, and the Court’s registrar was unable to
contact him telephonically.
In light of the allegations made in
the medical certificates, i.e. that Mr Gladile was required to
self-isolate until 1 September
2021, and given that he was only said
to be available to resume work on 2 September 2021, the matter was
postponed until the next
court day, which was Monday, 6 September
2021. It was subsequently established that Mr Gladile had
spoken to his clients
after court on Tuesday, 24 August 2021, and he
was advised by them of the new date for the continuation of the
matter, being 6
September 2021.
4.12
At 12:30 on Friday, 3 September 2021 the
Court’s registrar received a lengthy email from Mr Gladile
explaining that he wished
to withdraw from this matter, and informing
this Court of a criminal matter in which he was involved in the
Circuit Court being
held at Lady Frere. I shall recite the
contents thereof in full.
“
Dear
Registrar. Receive my warm regards. There are two issues
this email seeks to bring to the attention of the Honourable
Judge
and my colleagues involved in the Patience Kwaza matter. (1)
I will be withdrawing from representing both the
accused number 3 and
4, respectively, and the reasons are mainly due to financial
instructions.
The families of both the accused persons had entered into a
payment agreement with us, and that has not been honoured, to an
extent
that most of the disbursements in that matter had to be paid
for by the attorney and myself. It therefore makes no business
sense for us to remain on record, and we had advised both accused
persons of their rights to approach Legal Aid offices for
representation.
Therefore,
on the date of the 6
th
September 2021 I will be making an application to withdraw.
(2) I am also involved in a criminal trial at the Eastern
Cape High Court in the Lady Frere Circuit Court in a case of State
versus Xolisa Beja and two others under case number 20/2019.
This is a partly-heard matter which began in February 2021 and
was
remanded for further trial on 30 August 2021. There are three
counsels involved for three different accused persons.
I am
representing accused 3, Mr Xolisa Xamte.
The Presiding Judge Griffiths informed us that this is a priority
matter, and he wants to finish it off before the term ends.
Therefore, I will be in the Eastern Cape for the whole month of
September.
He has informed me to ask the Honourable Judge Gamble to contact
him so that they may discuss it if Honourable Judge Gamble can excuse
me for Monday.”
After furnishing the contact details of the Judge’s registrar,
the letter continues as follows.
“
(3)
Colleagues, I would not have agreed to the date of the 06 September
for further trial, because I anticipated that the
Eastern Cape matter
will take more than a week.
I hope this email reaches the Honourable Judge Gamble as urgently
as possible so that we know what happens on Monday. The
Honourable Judge Griffiths also wants feedback as soon as possible.
Thank you.”
4.13
This Court’s registrar replied to
that email at 21:29 on the evening of Friday,
3 September
2021: “
Dear
Mr Gladile. Please be advised that your request to be excused
from attending court on Monday is
refused.
”
4.14
When the Court convened on Monday, 6
September 2021, Mr Gladile was not present. This Court’s
registrar tried unsuccessfully
to make contact with him, but shortly
before 10 o'clock he contacted the registrar and informed her that he
was in Lady Frere.
The matter stood down until 12:00 on
Tuesday, 7 September 2021, and this Court contacted Mr Justice
Griffiths and collegially requested
him to inform Mr Gladile of the
postponement of the Kwaza matter, and that he was required to appear
in Cape Town at 12:00 the
following day. That message was
conveyed to Mr Gladile personally by Judge Griffiths.
4.15
On Tuesday, 7 September 2021 Mr Gladile
arrived late at court, arriving at 12:15, and explained that the taxi
that he had taken
from the Eastern Cape had once again been delayed.
The Court thereupon heard the application for Mr Gladile’s
withdrawal
as counsel of record, and conducted an inquiry in terms of
section 342A as indicated above.
5
I shall deal firstly with the application
for permission to withdraw. At the outset I should state that I
have serious reservations
about the
bona
fides
of the application. The
first time that this Court was aware of the fact that Mr Gladile
appeared on a paid brief was on
Friday, 3 September 2021 upon receipt
of his email of that day. When questioned about this on
Tuesday, 7 September 2021,
Mr Gladile responded that the Court did
not enquire whether he was on a paid brief, cynically insinuating
that it was the Court’s
duty to do so.
6
He informed the Court that he was
instructed by Mdanjelwa Attorneys, who apparently have offices in
Cape Town and Khayelitsha.
He could produce no written
instruction to appear on behalf of accused 3 and 4, but said that he
had been briefed telephonically.
When asked which attorney at
the firm was dealing with the matter, Mr Gladile fell about somewhat,
but eventually settled on Mr
Bahle Mathe as the instructing attorney
at the firm. Mr Mathe has never attended court with Mr Gladile
in this matter, nor
could Mr Gladile produce any fee list which he
had rendered to the attorney for payment of his account. Simply
put, there
is no evidence on record whatsoever of the involvement of
Mdanjelwa Attorneys in this matter at all.
7
Accused 3 and 4 personally confirmed to the
Court that they had no funds with which to finance their counsel, and
requested that
arrangements be made for their further representation
in the matter by Legal Aid South Africa. It appeared later that
there
may have been other persons, possibly family, who had
undertaken to stand in for the fees.
8
My reservations about the integrity of the
application to withdraw are influenced by the fact that Mr Gladile is
now double-booked
with matters in both this court and Lady Frere.
The apparent shortage of funds was never mentioned before to this
Court,
and it only arose in the context of Mr Gladile’s email
of Friday, 3 September when the application to withdraw was
predicated
both on an alleged lack of funds and a double booking.
I am strengthened in this view by the fact that Mr Gladile put up a
medical certificate to this Court regarding Covid-19 as a reason for
having to avoid appearing in this court, when he knew full
well he
had a partly-heard matter in the Eastern Cape.
9
I should also mention that at a relatively
early stage of proceedings counsel for the defence were advised in
chambers that this
matter would run until its completion, if
necessary beyond 31 August 2021. It is not uncommon for the
State to underestimate
the duration of a trial, and, of course, when
the State does so, it cannot take account of any unforeseen delays
that might arise
during the running of the trial. In any event,
there was no objection at that stage by any counsel to an inability
to stay
in the matter after 31 August other than the fact that Mr
Gladile said that he had a partly-heard criminal matter in this
Division
before the Judge President which was due to run in the last
week of term. It has subsequently been confirmed to this Court
by the Judge President that the matter will run before His Lordship
from 13 to 16 September 2021. Most assuredly, no mention
was
ever made in chambers by Mr Gladile of the need to appear in the Lady
Frere Court at the beginning of September 2021 –
this in
circumstances where he now says he had known about that appearance
since the beginning of 2021, in January or February.
10
The
fact of the matter is that accused 3 and 4 have informed this Court
that they, themselves cannot afford the costs associated
with being
represented privately, and that they wish to avail themselves of the
services of Legal Aid. This request was conveyed
to the
responsible person at the Cape Town offices of Legal Aid South
Africa, Mr Russell Cloete, who was present in court during
the
sitting on Monday, 6 September 2021, and who confirmed that accused 3
and 4 would qualify for Legal Aid representation.
11
Subsequently, the Court was informed by Ms
Levendall, who represents accused 2 and who is a colleague of Mr
Cloete at the Cape Town
offices of Legal Aid, that the necessary
steps had been taken to process the applications for the accused.
Furthermore, Mr
Cloete informed the Court’s registrar today
that the brief to appear on behalf of the accused had been advertised
on the
Legal Aid website, and that a response from interested legal
practitioners was awaited.
12
The
substitution of legal representation during the course of a trial is
not without its difficulties, particularly because the
person taking
over the defence would have to familiarise him- or herself with the
facts and take fresh instructions from the accused.
Fortunately, in this matter we have a transcription of the evidence,
and this will facilitate new counsel taking over and preparing
the
matter more speedily. The prejudice to the accused in the form
of further delays while they remain in custody is, however,
unavoidable in the circumstances, and is something which the Court
cannot address.
13
I
do not believe that it will be in the interests of justice for Mr
Gladile to continue representing the accused. As will
appear
shortly, he has a very poor record of timekeeping – something
which is not in the interests of the accused or the
other parties
involved in this litigation. Bluntly put, I believe that
permitting Mr Gladile to withdraw, is likely to significantly
enhance
the pace at which this trial progresses, and that will be to the
benefit of the Court and the accused.
14
In
the circumstances, and subject to what is said below in relation to
the provisions of section 342A, Mr Andile Gladile will be
granted
leave to withdraw from the matter as counsel of record for accused 3
and 4.
15
Turning
to the application of that section of the Criminal Procedure Act, it
reads as follows:
"342A(1) A Court before which criminal proceedings are
pending, shall investigate any delay in the completion of proceedings
which appears to the Court to be unreasonable and which could cause
substantial prejudice to the prosecution, the accused or his
or her
legal advisor, the State or a witness.
(2) In considering the question if any delay is unreasonable, the
Court shall consider the following factors:
(a) the duration of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) the effect of the delay on the personal circumstances of
the accused and witnesses;
(e) the seriousness, extent or complexity of the charge or
charges;
(f) actual or potential prejudice caused to the State
or the defence by the delay, including a weakening of the quality
of
evidence, the possible death or disappearance or non-availability of
witnesses, the loss of evidence, problems regarding the
gathering of
evidence, and considerations of cost;
(g) the effect of the delay on the administration of
justice;
(h) the adverse effects on the interests of the public or
the victims in the event of the prosecution being stopped or
discontinued,
and
(i) any other factor which, in the opinion of the
Court, ought to be taken into account.
(3) If the Court finds that the completion of the
proceedings is being delayed unreasonably, the Court may issue any
such
order as it deems fit in order to eliminate the delay and any
prejudice arising from it or to prevent further delay or prejudice,
including an order ...
(e) that
(i) ...
(ii) the accused or his or her legal
advisor, as the case
may be, shall pay the state the wasted costs incurred
by the State as a result of an unreasonable delay
caused by the accused or his or her legal advisor, as the case may
be; or
(f) that the matter be referred to the appropriate authority for
an administrative investigation and possible disciplinary action
against any person responsible for the delay.”
16
The
facts which I have set out above, demonstrate clearly that not all
the delays in the matter were occasioned by the conduct of
Mr
Gladile. However, it can be said with certainty that he has
been responsible for the greater part of those delays.
In the
first place, his regular late arrivals at court have resulted in lost
time of more than two hours. That amounts to
almost half of the
time that the court ordinarily sits in a day, or, effectively, half a
day. Such conduct merits the attention
of the Legal Practice
Council.
17
Secondly,
the delays occasioned on Wednesday 4 and Thursday 5 August 2021 are
entirely attributable to Mr Gladile’s misconduct
and blatant
dishonesty. Upon enquiry by this Court’s registrar, the
Chief Magistrate of Grabouw confirmed that Mr Gladile
had appeared in
that court on Thursday, 5 August 2021 to attend to a bail application
in a pending criminal trial. When questioned
about this by the
Court on Tuesday, 7 September 2021, Mr Gladile admitted that he had
appeared in that court on that day.
18
In
the circumstances, he lied to this Court about his medical
condition. He attended another court in a country town about
an
hour’s drive from Cape Town, and when he was subsequently asked
by the Court whether he had attended to other matters,
he lied
again.
19
Mr
Gladile’s conduct in this regard is to be deprecated in the
strongest terms. A Court takes counsel at his or her
word,
because counsel owes a duty of absolute honesty to the Court.
The putting up of false explanations to explain absences
from court
is inimical to the professional duties of an advocate. Such
behaviour, too, warrants the attention of the Legal
Practice Council.
20
Thirdly,
the delay of nine court days from Tuesday, 24 August to Monday, 6
September 2021, lies entirely at the door of Mr Gladile.
The
medical certificate put up by him led this Court to believe that it
was necessary for Mr Gladile to self-isolate on the basis
of
suspected Covid-19 infection, and he intimated that much in his email
to the Court’s registrar. Against that background,
the
matter was postponed.
21
Yet
again, Mr Gladile abused the indulgence granted to him by this Court
to self-isolate by travelling by public transport to a
place
approximately 10 hours from Cape Town, and when he arrived there he
proceeded to participate for four days in court proceedings
about
which this Court had not been informed in advance.
22
The
Court does not know whether the symptoms described by Mr Gladile to
the doctor, recorded in the medical certificate, were genuine
or
not. If they were and he was sick, Mr Gladile had no
entitlement to travel to the Eastern Cape to attend to a partly-heard
matter. He was required to self-isolate at home so that he was
medically fit to return to this court on 6 September 2021.
And
if the symptoms were not genuine,
cadit
quaestio
.
23
Furthermore, by not self-isolating and by
freely mixing with members of the public on public transport and in
other court proceedings,
Mr Gladile showed callous disregard for the
health of others. He was manifestly in breach of the State of
Disaster Regulations
applicable to the current level of lockdown
under the Covid restrictions. Those regulations are there to
protect all of us.
Mr Gladile showed that he does not care
anything for his fellow man. This conduct, too, merits the
attention of the Legal
Practice Council.
24
What
then are the wasted costs occasioned by Mr Gladile’s
unprofessional behaviour? The prosecutor, Mr Sityata, informed
the Court that the following witness to be called by the State in the
trial was a section 204 witness who had travelled to Cape
Town from
Knysna on Sunday, 15 August 2021. The witness, whose identity
has been kept confidential, was driven to Cape Town
by the
investigating officer who had to travel to Knysna – at State
expense and in his own time – and back to collect
her.
The travelling time in this regard would have been of the order of 12
hours for a return journey.
25
The
cost of such travel is not known to the Court, but it must be quite
significant. The witness was then put up in comfortable
accommodation near the court, paid for by the Office of the Chief
Justice at a rate of R1 440 per night, and she remained
in
attendance in Cape Town as the State was intending to call her as
soon as this was practically possible, probably on Wednesday,
18
August.
26
In
the result, the witness was only allowed to return home on Friday, 27
August 2021 when she was again transported back to Knysna
by the
investigating officer. That arduous journey and the cost
thereof was repeated. It is not clear why the witness
did not
return home on Tuesday, the 24
th
when the matter was postponed to 6 September. Her attendance in
Cape Town after that date was not required for the purposes
of
possible testimony, as the case had been postponed.
27
As
I have it, the lost expenditure incurred by the detention of the
witness in Cape Town after that date was not attributable to
Mr
Gladile’s conduct. As I have said, she would have
probably commenced with her evidence on Wednesday, 18 August,
and
continued through that week and into the following week. Her
inability to testify on Wednesday, 18 August and Thursday,
19 August
was attributable to the medical problems associated with accused 4
and his resultant absence from court. Her inability
to testify
on Monday, 23 August was occasioned by the flooding of the cells.
28
It
seems to me then that the only wasted expenditure directly
attributable to Mr Gladile is the witness’ stay for the night
of Monday, 23 August 2021. That would amount to R1 440.
Those are, of course, the costs which can be established.
But,
besides that, there are the costs associated with any court sitting:
the salaries of the Judge and the court personnel;
the salaries
of the prosecutor and the police, and the salaries of any persons
employed by Legal Aid who may be assisting the Court.
Those
amounts are not quantifiable, but they are substantial.
29
Ms
Verster, who appears on behalf of accused 1 on the instructions of
Legal Aid, highlighted to the Court how she had been prejudiced
by Mr
Gladile’s shenanigans. She provided the Court with a list
of her attendances, and showed that if the court sat
a full day, she
would be paid R3 202 per day. But if the court only sat
for part of the day, and if, for example, there
was an early
postponement due to non-attendance by fellow counsel, then she was
only paid a part fee pro rata to her attendance.
Thus, said Ms
Verster, whereas she might have billed R64 040 if the court had
sat for a full day on each sitting, she was
actually only able to
bill R25 881, and she complained that her loss was of the order
of R38 158. That is the loss
which Mr Gladile would have
attributed in substantial part to the earnings of his colleague.
30
I
have great sympathy for Ms Verster, who has behaved professionally,
and who has presented herself at court as required by her
instructions, and who has been prevented by a colleague from
collecting what was due to her. However, as I read section
342A(3)(e)(ii), it only provides for the payment by a legal advisor
of the wasted costs incurred by the State as a consequence of
any
unreasonable delay in proceedings occasioned by him or her.
31
In
my view, the term, “the State”, must be given a wide
interpretation, as it is not limited by any definition in the
Criminal Procedure Act. Accordingly, the wasted costs of
accommodation of the witness waiting to testify, would fall under
that rubric. So, too, would be any unnecessary and wasted costs
incurred by the Legal Aid Board, which is an institution
of, and
funded, by the State. Accordingly, the actual amounts paid out
to Ms Verster for her appearances on behalf of accused
1 on days when
Mr Gladile was responsible for the delays and when Ms Verster was
unable to discharge her contracted professional
responsibility to the
Legal Aid Board, constitute wasted costs to the state. See
S
v Jordaan and Others
[2018] ZAWCHC 10
(7 February 2018) at para 21. And, as I have already indicated,
there are other unquantified expenses relating to the running
of a
court, which would include the salaries of the officials present in
court.
32
I
have considered Ms Verster’s summary, and the wasted costs
incurred by Legal Aid in this matter amount to R3 111,24.
According to Ms Verster’s list of attendances, those fees
represent the amounts actually paid out by Legal Aid to her on
the
days when Mr Gladile absented himself from the proceedings without
the Court’s consent.
33
In
the result, and having regard to the criteria set out in Section
342A(2), I find that there has been an unreasonable delay in
the
proceedings caused by Mr Gladile’s unauthorised absences.
I find further that the wasted costs to the State occasioned
by such
delays amount to an aggregate of not less than R4 551,24.
That is, one night’s accommodation for the witness,
and the
billings of Ms Verster which the Legal Aid Board has had to bear.
Those wasted costs would be much, much higher if
the salaries of the
officials in court were included in that.
34
However,
I can make no order under section 342A(3)(e), because that provision
in the Criminal Procedure Act has not yet been brought
into
operation. I am therefore precluded from making such an order,
and it is regrettable that the Minister of Justice and
Correctional
Services has not seen fit to bring that section into operation.
One hears day in and day out of the costs of
court appearances being
caused by dilatory defences and attitudes adopted by accused
persons. It costs the taxpayer millions
and millions of Rands
every year. If there are accused persons and/or their legal
advisors who are responsible for those
delays, the State should be
able to recover that money from them. But, as I have said, I am
precluded from making such an
order in this matter.
35
I
am, however, able to make an order under section 342A(3)(f),
referring this matter to the Legal Practice Council for consideration
of appropriate steps against Mr Gladile. I intend to do so,
because his conduct in this matter, in my view, falls woefully
short
of the standard of professional behaviour expected of someone of his
standing.
36
I
have set out my reasons for this ruling in full so that counsel who
conduct themselves in such a fashion in future might appreciate
what
fate awaits them. The ruling will also be forwarded to SAFLII
for consideration for reporting, and also to the Legal
Practice
Council, who, it is hoped, will attend to this matter speedily.
37
At
the end of it all, I make the following ruling.
1
Mr Andile Gladile is granted permission to
withdraw from the matter as counsel of record for accused 3 and 4.
2
The trial is postponed for further hearing
on 4 October 2021 only, and thereafter for further hearing on 18
October 2021 until the
matter is completed.
3
The four accused shall remain in custody.
4
A copy of this ruling is to be transcribed
and placed for publication on SAFLII.
5
The Chief Registrar of this court is
directed to forward a copy of this ruling to the offices of the Legal
Practice Council, Cape
Town.
38 In conclusion, I should
apologise to the accused who have been in custody now for almost
five
years. It is unacceptable to the Court that there have been
delays in the litigation caused by counsel who has acted
only in
furtherance of his own selfish interests. I trust that such a
situation will not arise again in the finalisation
of this matter.
GAMBLE, J
JUDGE OF THE
HIGH COURT