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[2010] ZAGPPHC 33
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S v Mhlanga and Others (A314/10) [2010] ZAGPPHC 33 (29 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Date: 29/04/2010
Magistrate
PRETORIA
THE STATE v SIPHO
MHLANGA, NXULULEKO NDEBELE AND MTHANDENI NDLOVU
REVIEW JUDGMENT
SOUTHWOOD J
[1] This is a special
review in terms of
s 304(4)
of the
Criminal Procedure Act 51 of 1977
.
The Pretoria regional magistrate has submitted the case for special
review because he has ascertained that the person who represented
accused no 3, a Mr. Moagi, is not an advocate as he represented to
the court. Concerned about the effect on the trial of this fact
in
the light of
SvMkhise:
S v Mosia: S v Jones: S v Le Roux
1988
(2)
SA
868
(A)
the
regional magistrate raises the following questions -
whether the entire
proceedings must be set aside because they are not in accordance
with justice; and
whether only the
proceedings relating to accused no 3 must be set aside because they
are not in accordance with justice.
He has pointed out that
this is not pertinently addressed in
Mkhise's
case.
[2] The three accused
are standing trial on two counts of robbery with aggravating
circumstances, one count of assault with intent
to do grievous bodily
harm and two counts of unlawful possession of a firearm. The accused
were arrested on 28 July 2004 (the night
of the incident), refused
bail and their trial commenced on 19 September 2005. The trial has
not been completed.
[3] At the commencement
of the trial accused no 1 and 2 were represented by an advocate, Mr.
Rakgobela, and accused no 3 by Mr.
Moagi who represented to the court
that he was an advocate. Mr. Rakgobela and Mr. Moagi continued to
represent the three accused
from that date but Mr. Moagi's
appearances became progressively more erratic until during the first
half of 2008 he disappeared
and did not appear again. Mr. Moagi's
failure to attend the proceedings resulted in the trial being
postponed and considerably
delayed the finalisation of the matter.
[4] When Mr. Moagi
disappeared the prosecution had closed its case and the accused were
about to present their defence. Accused
no 3 then successfully
applied for legal aid and a Mr. Nel was appointed to act on his
behalf.
[5] To enable Mr. Nel to
represent accused no 3 it was necessary to prepare a record of the
proceedings. Numerous difficulties were
experienced in doing so: in
November 2008 the charge sheet and written record were stolen
together with a number of documentary
and photographic exhibits. The
process of reconstructing the record was completed only in August
2009.
[6] When addressing the
court in August 2009 Mr. Nel alleged that Mr. Moagi had never been an
advocate of the High Court. This caused
the regional magistrate to
make enquiries and he discovered that Mr. Moagi had never been
admitted as an advocate of the High Court
in terms of the
Admission
of Advocates Act 74 of 1964
.
[7] In
S
v
Mkhise: S v Mosia: S v Jones: S v Le Roux supra
the
court dealt with a similar situation (the first time such a case had
come before court in the legal history of this country)
and concluded
(at 875F-H) that, having regard to all the relevant considerations,
it is in the public interest that the defence
in a criminal trial be
undertaken by a person who has been admitted to practise as an
advocate in terms of the
Admission of Advocates Act and
the lack of
such authorisation must be regarded as so fundamental an irregularity
as to nullify the entire trial proceedings.
This conclusion clearly
relates to the facts in that case where only one accused and his
legal representative were involved in each
case.
[8] Since
Mkhise's
case
our courts have followed a strict approach with regard to the
question of an unqualified person representing an accused and
have
set the proceedings aside - see e.g.
S
v
Nkosi en Andere
2000
(1) SACR 592
(T); S v
Stevens
en 'n Ander200Z
(2)
SACR 95 (T);
Sv
Gwantshu and Another
1995
(2) SACR 384(E)
; S
v
Dlamini en 'n Ander
2008
(2) SACR 202
(T).
That
was also the case before
Mkhise
-
see
e.g.
S
v
Masithela
1986
(3) SA 402
(O).
[9] The Director of
Public Prosecutions is of the view that the conclusion in
Mkhise
referred
to applies to the present situation because the whole proceedings are
tainted. I agree. In most cases it would be extremely
difficult if
not possible to disentangle the facts and determine what effect the
appearance of an unqualified person had on the
trial of the other
accused. Since the object of the rule is to safeguard the integrity
of the proceedings it seems to me to be
essential that the entire
proceedings be set aside. That was also the approach of the court in
S
v
Gwantshu and Another
1995
(2) SACR 384
(E)
at
386b-d which is the only case referred to which deals with a
situation where one accused was properly represented and the other
accused not. Accordingly, the entire proceedings will be set aside.
[10] The Director of
Public Prosecutions must decide whether or not to proceed against the
accused
de
novo.
Order
[11] I The
proceedings against the accused in the Pretoria regional court under
case number 14/00184/2005 are set aside;
II The matter is
referred back to the regional court for the matter to proceed
de
novo
if
the Director of Public Prosecutions so directs.
b.r.
southwood
judge
of the high court
I agree
c.
pretorius
judge
of the high court