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[2010] ZAGPPHC 2
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S v Chukwu and Another (A66/10) [2010] ZAGPPHC 2; 2010 (2) SACR 29 (GNP) (29 January 2010)
A66/10
IN
THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
CASE
NO. 707/04
REVIEW
CASE NO. LR 34/2008/JC
HIGH
COURT REF NO. 1917
Date:
29/1/2010
in
the matter between:
THE
STATE
PLAINTIFF
-and-
PRINCE
CHUKWU
1
st
DEFENDANT
OKECHUKWA
JOHN OKAVOR
2
nd
DEFENDANT
JUDGMENT
POSWA
J,
[1]
This is a judgment in a special review emanating from a Magistrate
Court, in the Magistrate district of Phalaborwa. It is pursuant
to
the following letter from the Magistrate;
"SPECIAL
REVIEW: CASE NO. 707/2004:
the
above matter refers.
Enclosed
herewith please find record of proceedings in respect of the
above-mentioned matter
a
Candidate Attorney acting on behalf of his Principal appeared on
behalf of Accused 1 and 2 in this matter.
When
the trial commenced his right of appearance was valid. It expired
during the trial. He continued to appear before court even
after his
right of appearance had expired.
When
the irregularity was discovered he was now an Admitted Advocate of
the High Court of South-Africa duly instructed by his former
Principal to continue with the trial.
The
question is whether when he appeared before court after his right of
appearance had expired was that an irregularity that vitiated
theproceedings.
There
are conflicting decisions in this matter in accordance with Case Law
that I cited on record.
Whilst
it is correct that unterminated proceedings should sparingly [be]
referred to the High Court, it is equally correct that
in
casu
there
are sufficient grounds for the interlocutory intervention by the High
Court at this stage for guidance on this matter.
Justice
cannot be attained by other means except by removal of this boom
through the intervention of the High Court."
The
letter is signed by the Magistrate, Phalaborwa.
[2]
An enquiry was forwarded by me, the Reviewing Judge, to the
Magistrate, indicating that the record of the proceedings had not
been attached to the Magistrate's letter. On subsequent receipt of
the transcript of the proceedings (525 pages, in 4 volumes),
1
invited the assistance of the office of the Director of Public
Prosecutions for its comment thereon.
[3]
in view of the importance of its input and fullness of its contents,
I have decided to quote, in full, the entire response from
the DPP's
office. It reads:
"1.
The two accused, a 28-year old male, and a 29 year old male,
respectively, were charged in the Magistrate's court of Phalaborwa,
with (6) counts of contravening section 5(b) of the Drugs and Drug
Trafficking Act, Act 140 of 1992, alternatively six (6) counts
of
contravening section 4(b) of the aforementioned Act. Both accused
were represented by Mr Chabelang Isaac Mokgalaka, a candidate
attorney acting on behalf of his principal.
2.
it appears that during the course of the proceedings before the court
a
quo,
it
came to Sight that Mr Mokgalaka was an admitted advocate of the High
Court of South-Africa and was, as such, duly instructed
to proceed
with the trial by his former principal. The matter was, therefore,
sent on special review to the High Court, Transvaal
Provincial
Division, to gain clarity on the legal position regarding the
predicament of the court
a
quo.
3.
This office has been asked to comment by His Honourable the
Reviewing Judge. According to correspondence received from the
Law
Society of the Northern Provinces, Mr Mokgalaka had entered into a
contract of articles of clerkship with his principal on
1 February
2004 for two (2) years. The contract had duly expired on 31
January, 2006. Mr Mokgalaka had not been admitted on
the date of
signature that appeared on the correspondence, to wit 26 June, 2007.
It appears, however, that Mr Mokgalaka was admitted
as an advocate on
25 June, 2007.
4.
When the trial commenced on 4 April, 2006 with the plea and
subsequent proceedings, Mr Mokgalaka did not have right of appearance
before the court
a
quo
in
terms of section 8(4)(a) of the Attorneys Act, Act 53 of 1979, for a
further six months from the date of the expiration of the
contract of
articles of clerkship.'
"8(4)(a)
Any candidate attorney who is entitled to appear as contemplated in
subsection (1), shall at the expiry of his articles
or contract of
service, and provided he remains in the employ of the attorney who
was his phncipal immediately before such expiry,
or provided he
remains in the service of the law clinic or the Legal Aid Board
concerned, as the case may be, remain so entitled
until he is
admitted as an attorney, but not longer than six months."
The
question thus remains as to the
legality
of the proceedings before the court a quo after 31 July, 2006?"
5.
Section
8 of the Attorneys Act, Act 53 of 1979
reads
as follows;
'(1)
Any candidate attorney who has satisfied all the requirements for the
degree referred to in paragraph (a) of section 2 (1),
or for the
degrees referred to in paragraph (aA) of that section, or for a
degree or degrees referred to in paragraph (aB) of that
section in
respect of which a certification in accordance with that paragraph
has been done, shall be entitled to appear in any
court, other than
any division of the Supreme Court, [now High Court], and before any
board, tribunal or similar institution in
or before which his or her
principal is entitled to appear, instead of or on behalf of such
principal, who shall be entitled to
charge the fees for such
appearances as if he or she himself or herself had appeared:
Provided that such a candidate attorney
shall not be entitled to
appear in a court of a regional division established under
section
2
of the Magistrates' Courts Act, 1944
(Act
32 of 1944),
or a Divorce Court establishment under
section
10
of the Administration Amendment Act, 1929
{Act
9 of 1929),
unless he or she-
(i) has
previously practised as an advocate for at
least one year; or
(ii) has
served for at least one year under his or her
articles or
contract of service; or
(Hi)
has at least one year's experience as a state
advocate, state prosecutor or Magistrate.
(2).......
(3)
The secretary of the society concerned shall, upon the written
application of the principal of any candidate attorney referred
to in
subsection (1) and upon the payment of the fees prescribed under
section 80 (bA), issue to such candidate attorney a certificate
that
he complies with the relevant provisions of subsection (1).
(4)(a)
Any candidate attorney who is entitled to appear as contemplated in
subsection (1), shall, at the expiry of his articles
or contract of
service and provided he remains in the service of the law clinic
or the Legal Aid Board concerned, as the case may be, remain so
entitled until he is admitted as an attorney, but not for longer
than
six months, (b) The provisions of section 6 shall apply
mutatis
mutandis
in
respect of a former candidate attorney referred to in paragraph (a).
(5)
In the event of the death, mental illness, insolvency, conviction for
crime, imprisonment for debt, suspension, striking off
the roll or
discontinuance of practice of the attorney who was the principal of a
former candidate attorney referred to in subsection
(4) immediately
before the expiry of his articles, such former candidate attorney
shall, with the written permission of the secretary
of the society of
the province in which the candidate attorney served under articles,
be entitled to take service with any other
attorney and to appear as
contemplated in subsection (4) under the supervision of that
attorney.'
(6)
An irregularity of this nature may amount
per
se
to
a failure of justice which vitiates the proceedings. In S v Mkhise;
S v Mosia; S v Jones; S v Le Roux
1988 (2) SA 868
(A) at 871G - J,
Kumleben, AJA held the following regarding irregularities of this
nature:
'It
is a well-established principle that an irregularity in the conduct
of a criminal thai may be of such an order as to
amount
per
se
to
a failure of justice, which vitiates the thai. (I shall, for
convenience, refer to an irregularity having such effect as a 'fatal
irregularity'.) On the other hand, less serious and less fundamental
irregularities do not necessarily have that effect. As Holmes,
JA
said in S v Naidoo 1962(4) SA 348(A) at 354D-F, in reference to such
irregularities:
"Broadly
speaking they fall into two categories. There are irregularities
(fortunately rare) which are of so gross a nature
as
perse
to
vitiate the trial. In such a case the Court of appeal sets aside the
conviction nor an acquittal on the merits. There remains
thus neither
a conviction without reference to the merits, and the accused can be
re-tried in terms of s 370(c) of the Criminal
Code. That was the
position in Moodie's case
[1961
(4) SA 752
(A)],
in
which the irregularities of the deputy sheriff remaining closeted
with the jury throughout their two-hour deliberation was regarded
as
so gross as to vitiate the whole trial. On the other hand there are
irregularities of a lesser nature (and happily even these
are not
frequent) in which the Court of appeal is able to separate the bad
from the good, and to consider the merits of the case,
including any
findings as to the credibility of witnesses."
(7)
Various cases reflect the courts' views on the regularity of
proceedings where the legal representative does not have a right
of
appearance -
S
v Khan 1993(2) SACR 118(N); S v La Kay 1998(1) SACR 91(K); S v
Gwantshu and Another 1995(2) SACR 384(E); S v Nkosi and Others
2000(1) SACR 592(T).
In
all of the aforementioned cases, the proceedings were set aside due
to a fundamental irregularity, to wit the unlawfulness (sic)
of the
legal representative's right of appearance.
8.
The accused person's right to legal representation is entrenched in
section 35(3) of the Constitution of the Republic of South
Africa,
Act 108 of 1996 ["The Constitution"], which reads as
follows:
'35(3)
Every accused person has a right to a fair trial, which includes the
right-fa)
(b)
...;
(c)
(d)
(e) ...;
(f)
to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(g)
to have a legal practitioner assigned to the accused person by the
State and at State
expense,
if substantial injustice would otherwise result, and to be informed
of this right promptly;' Section 1 of the Attorneys
Act, Act of 1979,
defines a practitioner as 'any attorney, notary or conveyancer'. A
candidate attorney is not included in this
definition. A candidate
attorney is defined as 'any person bound to serve under articles of
clerkship or to perform community service
under a contract of
service'. It is therefore submitted that when Mr Mokgalaka
represented the accused during the period of 1 August,
2006 to 26
June, 2007, he was not a 'legal practitioner
3
as provided for in the Constitution.
It
follows, therefore, that the accused's right to a fair trial was
negated by the fact that they were represented by a candidate
attorney without a right of appearance.
9.
In view of the aforementioned, it is respectfully submitted that the
proceedings
ought to be set aside." (Emphasis added)
[4]
That wefl-presented submission was by Senior State Attorney, J
Cronje. It received the qualified concurrence of the Deputy Director
of Public Prosecutions, E. Leonard, SC, which reads as follows:
"1.
I agree that the submissions made are legally sound.
2.
However,
whilst the irregularity is of a technical nature
nothing
happened to question the capability of Mr Mokgalaka in representing
the 2 accused persons.
Should
the proceedings in this sehous matter be set aside, a re-trial is
eminent. The accused will again have to attend court and
will have to
pay for legal fees. Costs will again be incurred to find an Ibo
interpreter
[that
being the language chosen understood by the accused persons] and to
arrange for his/her services. It is therefore suggested
that
only
the portion of the trial that was dealt with by Mr Mokgalaka without
having right of appearance be set aside and not the whole
trial.
Alternatively,
it is submitted that it will be in the interests of justice to
continue with the trial as the irregularity is not
of such gross
nature [as] to vitiate the trial. Mr Mokgalaka is an admitted
advocate and was
capable
of handling the defence" (Emphasis added).
[5]
As the Deputy Director of Public Prosecutions states, legal
submissions by the senior state advocate cannot be faulted,
technically
speaking. In S
v
Nkosi en Andere 2000(1) SACR 592 (T),
Hartzenberg
J, with Preiss J, concurring, dealt with this very same issue, the
right of appearance in terms of ss
(B)(1)
and (3)
of
the Attorneys Act 53 of 1979 ("the Act"). The gravamen of
the issue dealt with by the Court in that case was with regard
to the
implications of the requirement of a certificate in terms of s. 8 of
the Act. The question for determination was whether
the purpose of
the certificate mentioned in s. 8 (3) is merely to prove that the
candidate attorney involved has a right to appear
in court. Although
the judgment is in Afrikaans, I have read through it and find that
the English headnote somewhat captures the
issues involved. It reads;
"Sections
8(1) and (3) of the Attorneys Act 53 of 1979 which provides (sic) for
the right of appearance of candidate attorneys
ought not to be
interpreted in isolation. Subsection (1) makes it clear that the
right to appear is not an unqualified right; the
candidate attorney
can only appear for and on behalf of his principal. The principal has
a real interest in the question of whether
he is going to allow his
candidate attorney to represent his firm in court, during the first
year in the district court and in
the second year in the regional
court. For that reason it is significant that ss. (3) provides that
it is the principal who has
to apply for the certificate. It follows
logically that the certificate is not merely a document which serves
as proof of the candidate
attorney's right to appear in court. The
certificate is a requirement for the candidate attorney to appear."
[6]
I
earlier
said the headnote somewhat captures the issues involved in the Nkosi
judgment. That was because it does not capture fully
the ratio of
Hartzenberg, J's judgment, at 595E-J, where he says the following;
"Volgens
my volg dit logies dat die sertifikaat nie 'n blote bewysstuk is wat
uitgereik word net bloot om die klerk in staat
te stel om te bewys
dat hy oor die nodige vereistes beskik nie. Die sertifikaat as silks
is 'n vereiste vir 'n klerk om te mag
verskyn. Dit beteken dat op die
feite in
hierdie
summiere geval,
die
betrokke persoon Masango, toe hy verskyn het nie aan al die vereistes
wat deur die Wet, gestel is voldoen het nie. Sy verskyning
was
derhalwe onreelmatig." (Emphasis added).
The
gravamen of the above passage, as I understand it, is that the
appearance by the candidate attorney, without the certificate
was, in
itself, an unlawful act.
[7]
For purposes of the present case, I accept that the interpretation
given by Hartzenberg, J is correct. However, the issue in
the present
case, on the facts before me, is much more than the question as to
whether the erstwhile candidate attorney's appearance
was or was not
unlawful. The question is whether or not, because of that unlawful
conduct, the erstwhile candidate attorney's conduct,
the entire
proceedings or, alternatively, the portion thereof which was at a
time when the certificate had expired, should be rendered
a nullity.
The Magistrate's enquiry, in paragraph 6 of his letter reads;
"(6)
The question is whether the fact that he appeared before court after
his right of appearance had expired was by itself
an irregularity
that vitiated the proceedings."
There
is no indication in that paragraph as to whether the Magistrate
contemplates the entire proceedings, including the portions
during
which the erstwhile candidate attorney, Mr Mokgalaka, was entitled to
appear, being declared a nullity.
[8]
The answer does not, in my view, depend on the extent to which the
Magistrate contemplates a possible irregularity in the question
he
raises. Once it is established, as it is established in this case,
that Mr Mokgalaka appeared, for a potion of the period during
which
he represented the accused persons, without authority to do so, the
proceedings or part thereof are irregular, it is, by
now, trite that
not every irregularity vitiates proceedings. It has to be a gross
irregularity before that happens.
[9]
There is no question, in my view, that a candidate attorney who
continues to appear after the expiry of the certificate on which
his
or her right to appear was exhibited commits an irregularity. The
question, however, as to whether or not the proceedings should
be
vitiated must, in my view, be related to the question of an accused
person's fair trial. Whatever the position might have been
before the
Constitution of South Africa Act 200 of 1993 ("the Interim
Constitution Act") and the subsequent Constitution
of the
Republic of South-Africa, 1996 ("the Constitution"), which
is certainly be the approach since then, it does appear
that, even at
the time when the case of
State
v Moodie
1961 (4) SA 752
(A)
was
decided, the accused person's right to a fair trial was a
consideration in determining how the consequences of an irregularity
would be dealt with.
[10]
That case had to do with rules relating to the jury system, which use
to be practice in this country.
One
of
the fundamental requirements in the jury system was that members of
the jury be afforded the fullest freedom of discussion throughout
their deliberations
on
the
verdict. An unauthorised officer of the Court, the deputy sheriff,
was in the presence of the jury for some 2 hours, at a time
when they
ought to have been deliberating on the verdict. It was accepted by
the Court that he took no part in their deliberations.
He actually
explained his presence
in
a
manner that did not denote that his intention was interfering, or
that he did interfere, with the jury. Holmes, J.A, stated the
following at 759B-D;
"Now
however
bona
fide
and
well-intentioned the conduct of the deputy sheriff, in my view, he
committed a
grave
irregularity
in
remaining in the presence of the jury throughout their deliberation.
The statute requires that they should be 'in a private place
apart by
themselves.' These words, which convey a triple emphasis are normally
a formality. It is fundamental to the jury system
that the members
should have the fullest freedom of private discussions throughout
their deliberations.
The
presence of an unauthorised officer of the Court for some two hours,
in the small and crowded room, in this case, strikes at
the very root
of that essential right of privacy.
It
was so gross a departure from the established rules of procedure that
it can be said that
the
appellant was not properly tried.
In
other words it was an irregularity of such a nature as to amount
to
a failure of justice.
It
is therefore unnecessary to enquire whether, on the elements, a
reasonable jury would have inevitably have convicted if the deputy
sheriff had not been present". (Emphasis added).
Evidently,
"failure of justice" was the basis on which the enquiry
proceeded.
[11]
It is not clear whether, in S
v
Nkosi en Andere,
the
Court considered the question as to the relationship between the
candidate attorney's continued representation of the accused
person
after the expiration of certificate and the conviction of each of the
appellants with the charge of robbery and sentencing
into the
respective periods of imprisonment. After the findings by the Court
that Mr Masango's appearance without a certificate
was irregular, the
Court said the following, at G-H;
"Dit
is gemeensaak tussen die advokaat vir die appelante en die advokaat
vir die respondent dat indien daar ander magtiging
plaasegevind het,
onreelmatigheid van so 'n aard is dat dit
per
se
tot
'n regskending gelei het soos byvoorbeeld gedefinieer in S v Moodie
1961 (4) SA 752
(A) en meerin besonder 758 E-G. Dit is derhaiwe nie
vir die hof nodig om in te gaan op die appel nie."
(My
understanding of the Court's comment is the following: It is common
cause between the appellant's and the respondent's respective
advocates that if irregularities took place, it is of such a nature
as to vitiate the proceedings, in the manner defined, for example,
in
S v Moodie
[supra].
It
is, consequently, not necessary for the Court to go into the merits
of the appeal).
[12]
It would seem that counsel and the Court in
Nkosi
en Andere
had
in mind the following passage in
Moodie,
768 E-H;
"To
sum up so far, the following rules may be stated in regard to
irregularities,..;
(1)
The general rule with regard to irregularities is that the Court will
be satisfied that there has
in
fact
been
a
failure
of justice
if
it cannot hold that a reasonable trial Court
would
inevitably have convicted
if
there had been no irregularity.
(2)
In an exceptional case, where the irregularity consists of such a
gross departure from established rules of procedure that
the
accused has not been properly tried
this
is
per
se
a
failure of justice, and it is unnecessary to apply the test of
enquiring
whether
a reasonable trial court would inevitably have convicted
if
there had been no irregularity.
(3) Whether
a case falls within (1) or (2) depends upon
the nature and degree
of the irregularity." (Emphasis
added).
It
might be assumed that counsel and the Court opted for the second
option, on the understanding that Mr Masango, the candidate
attorney
who proceeded to represent the appellants after his certificate had
expired, had committed
"such
a gross departure from established rules of procedure that the
accused [had] not been properly tried."
[13]
Fortunately, this Court is not called upon to comment on the
justification or otherwise of counsel and the Court, in
Nkosi
en Andere,
in
opting for option 2 of the "rules" mentioned in
Moodie,
I
would have had the difficulty, had that been necessary, of not being
aware of the specific facts of that case that is justified
counsel
and the Court arriving at that conclusion. A comparison of the two
cases indicates, in my view, that there are important
differences.
The following are some of them;
(a)
Unlike in
Nkosi
en Andere
(so
also
Moodie
and
the many cases mentioned therein), proceedings in the present matter
have not yet been finalised. It is, therefore, not possible
to use
the test as to whether
"a
reasonable trial court would inevitably have convicted"
the
accused persons
(Moodie
758 F-G.)
I
shall
revert to this aspect later in the judgment.
(b)
It is common cause that the two accused persons in the present matter
are very eager to have Mr Mokgalaka back as their legal
representative - they are satisfied with his performance. At the
conclusion of the oral evidence of the second accused person,
the
first accused person having also given oral evidence, Mr Mokgalaka
closed the defence case. The case was postponed to 24 April,
2007,
for addresses. On the latter date, Mr Tete, Mr Mokgalaka's erstwhile
principal, appeared in his place. He told the Court,
inter
alia,
the
following at page 487;
"Mr
Tete: As the court pleases. Your Worship I confirm that Mr Mokgalaka
was appearing for the two accused in this matter previously.
He,
however, discovered this morning [24 April 2007] that his right of
appearance in this court has since elapsed. And he requested
me to
take over the matter. Your Worship, although Mr Mokgalaka briefed me
about the proceedings so far, he also indicated to me
that there are
technical issues involved and I discussed the matter with my Learned
Friend and also with the two accused. Although
my own feeling is that
I am in a position to address the court,
the
accused themselves feel that if it is at all possible - ...Mr
Mokgalaka should return to court and proceed with the matter"
(Emphasis added).
(c)
The trial was, in my view, virtually finalised. All evidence that
needed to be led had been led and both sides had closed their
cases.
Evidence covers almost 500 pages (485 pages).
(d)
Mr Mokgalaka is, in my view, no ordinary lawyer. I have not had
insight as to his age but he sounds, on paper, of mature mind
and
experienced. He is eloquent and quite systematic in leading the
evidence of his erstwhile clients and in cross-examining state
witnesses.
(e)
Serious repercussions will follow the setting aside of the
proceedings, in consequence Mr Mokgalaka's irregular representation
of the accused persons. They were eminently set out by Mr Leonard,
the Deputy Director of Public Prosecutions, in the opinion received
from the DPP's office, from which I quoted in full at the
commencement of the judgement
(f)
Mr Mokgalaka successfully applied for the discharge of the two
accused persons in respect of some of the 6 charges together
with
their alternatives. The outcome of that application is contained in
the Magistrate's ruling on pages 382 to 383 of the transcript.
I
quote from it in full;
"In
the result the court rules as follows in respect of accused number 1
and 2 for the 6 counts, main and alternative counts.
In respect of
accused
number 1,
accused
number 1 has a case to answer in respect of the following counts:
count one, main and alternative count, count number two,
main and
alternative count, count number four, main and alternative count,
count number five, main and alternative count, count
number six, main
and alternative count. And (sic) application for a discharge is
refused in respect of those counts that I have
indicated in respect
of accused number one. No
prima
facie
case
has been established against accused number one in respect of count
number three, main and alternative count. And accused number
one is
therefore acquitted in terms of Section 174 of the Criminal Procedure
Act 51 of' 1977 as amended in respect of count three,
main and
alternative count and the application for discharge is granted in
respect of count number three as far as accused number
one is
concerned. I will then now proceed to
accused
number two.
The
finding of the court is that the
prima
facie
case
has been established against accused number two in respect of count
number[s] two and six, main and alternative counts respectively.
An
application for a discharge is refused in respect of those counts,
two and six. No
prima
facie
case
has been established against accused number two in respect of count
number one, main and alternative count, count number three,
main and
alternative count, count number four, main and alternative count and
count number five, main and alternative count. And
as such as (sic)
the application for discharge is granted in respect of the above
counts and their alternatives. And accused
number two is therefore
acquitted in terms of
Section 174
of the
Criminal Procedure Act 51 of
1977
as amended regarding the above counts that I have indicated."
(g)
Mr Mokgalaka has since been admitted as an advocate, which means
that there is no doubt with regard to his capacity or ability
to
conduct a criminal trial. It is common cause that Mr Tete is
desirous of briefing him as counsel for the two accused persons
so as
to finalise the case.
[14]
In answering the question, therefore, as to whether the irregularity
we are dealing with in the present matter resulted in
a "miscarriage
of justice" as Kumleben, AJA put it in S
v
Mkhise, S v Mosia; S v Jones; S v Le Roux (supra),
at
871 E, the above considerations have to be taken into account.
[15]
There is no doubt, in my mind, that Mr Mokgalaka's conduct, on the
facts of this case, is irregular. I am not persuaded, however,
that
there will be a "miscarriage of justice" if the proceedings
are allowed to remain intact and the case is allowed
to proceed to
finality, i am of the further view that, if either the accused
persons or their attorneys or both require the services
of Mr
Mokgalaka and if he is otherwise legally qualified to appear as their
legal representative, he should be permitted to do
so. To do
otherwise would, on, the facts of this case, amount to technica!
adherence to formalism at the expense of the accused
persons' right
and entitlement to be treated fairly.
[16]
It would be a miscarriage of justice if it was not mentioned, in this
judgment, how despicable Mr Mokgalaka's conduct of proceeding
- for
quite a long period - without a certificate to act as a candidate
attorney. Whilst I have come to the conclusion that this
irregularity
is not so gross as to warrant the setting aside of the proceedings, I
view it as serious misconduct, one that either
the Bar Council or,
most likely, the Law Society - should deal with. Seeing that it is
desirable, however, that Mr Mokgalaka be
permitted to finalise the
current case, it would, in my view, be best not to interrupt such
proceedings by having him simultaneously
facing a disciplinary
action. Whilst it would be tragic to lose a lawyer of his apparent
calibre, skills-wise, it would, in my
view, also send a wrong message
to practitioners if he did not receive some form of sanction for his
irregular conduct. I must
repeat, however, that that is not my
judgment and is not a part of the order I am now about to make.
[17]
In the circumstances,
I
make
the following order:
1.
THAT the question as to whether the irregularity arising from Mr
Mokgalaka's continued appearance on behalf of the accused persons
after his right of appearance had expired, was of such a nature as to
vitiate the proceedings, on the facts of this case, is answered
in
the negative.
2.
THAT the proceedings, up to the stage they have reached, appear to be
in accordance with justice.
3.
THAT, the trial should resume and proceed before the same Magistrate
and Mr Mokgalaka is permitted to conduct the further defence
on
behalf of the accused persons, if they or their attorney(s) still
desire his services.
JUDGE
J.N.M POSWA
NORTH
GAUTENG DIVISION
JUDGE
G WEBSTER
NORTH
GAUTENG DIVISION
In
the ordinary course of events