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[2013] ZAGPJHC 13
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S v Borias (41/01927/2010) [2013] ZAGPJHC 13 (4 February 2013)
REPUBLIC OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
High Court
Ref no 27/13
Magistrates’
Serial no 38/12
Case no
41/01927/2010
In the matter between
THE
STATE
and
LUCIEN
BORIAS
ACCUSED
R E V I E W J U D G M E N T
VAN OOSTEN J:
[1] The accused appeared before the
Regional Court in Johannesburg on a charge of housebreaking with
intent steal and theft. He
was represented by Mr Mckay who held
himself out as a duly admitted attorney.
[2] The accused pleaded not guilty.
One witness, the complainant and owner of the house that was broken
into, testified. The matter
was remanded and on resumption the
accused, who had been on bail, failed to appear. It had by then been
discovered that Mr McKay
had over a number of years misled the courts
into believing that he was a duly admitted attorney whereas in fact
he was not. His
“associate” Mr Kedijang appeared on
behalf of the accused and a warrant for the arrest of the accused was
authorised
and issued. The accused was subsequently re-arrested and
brought before court. The Regional Magistrate postponed the case for
a
special review to be submitted to this Court which is the matter
now before us.
[3] In a long line of cases it has
been decided that the appearance on behalf of an accused person by a
person without the right
of appearance is
per se
an
irregularity. The issue was fully dealt with by the then Appellate
Division in
S v Mkhize; S v Mosia; S v Jones; S v Le Roux
1988
(2) SA 868
(A) where such irregularity was held to be so fundamental
as to nullify the whole trial proceedings (see also
S
v Khan
1993 (2) SACR 118
(N);
Oliver
en ‘n ander v Prokureur-Generaal KPA
1995
(1) SA 455
(K);
S v Gwantshu and
Another
1995 (2) SACR 384
(E);
S
v La Kay
1998 (1) SACR 91
(C);
S
v Nkosi and others
2000 (1) SACR 592
(T)). In all these cases the proceedings were set aside due to a
similar irregularity.
[4] The request
of the Regional Magistrate is that the proceedings be set aside by
this Court and for the trial to start
de novo
. In my view the
request is well-founded. The order I propose to make will further
enable the accused to obtain proper legal representation.
[5] In the
result the following order is made:
The proceedings
in the Magistrates’ Court for the Regional Division of Gauteng
held at Johannesburg in case no 41/01927/2010
are set aside and the
matter is remitted to the Regional Court for hearing
de novo
.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
L WINDELL
ACTING JUDGE OF THE HIGH COURT