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[2022] ZAMPMBHC 90
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S v Zulu (CC41/2019) [2022] ZAMPMBHC 90; 2023 (1) SACR 343 (MM) (26 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: CC41/2019
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
26/10/2022
In
the matter between:-
STATE
versus
ELVIS
AARON ZULU Accused
JUDGMENT
GREYLING-COETZER
AJ
[1]
Delays within the criminal justice system
raise significant concerns pertaining to the rights of an accused,
the victims’
and access to justice. But most predominantly, the
eroding effect it has on the proper administration of justice
.
Although some delays are unavoidable, others call for fitting action
to be taken in order to curb further prejudice of setting
in.
[2]
The prosecuting authority is easily branded
to be the culprit in causing delays. But one is left with a
perplexing sense of concern
when the delays appear to be the product
of an accused or even worse an officer of court such as an attorney
or advocate, whose
very persons who took an oath on their admission
to the profession. An oath that seems to be long been forgotten by
those who make
themselves guilty of such eroding conduct.
[3]
The Accused stands arraigned on twenty
charges emanating from seven dockets, including:-
(a)
Seven
counts relate to Rape in circumstances where the victim was raped
more than once and/or in the execution of another crime
and/or at
gunpoint.
[1]
(b)
Six
counts of Kidnapping.
[2]
(c)
Four counts of Contravention of the
Firearms Control Act 60 of 2000.
(d)
Three counts of Robbery with Aggravated
Circumstances.
[4]
The offences were all allegedly perpetrated
between 13 January 2011 and 15 November 2014.
[5]
The Accused was arrested on 1 May 2011, but
failed to attend court. He was only re-arrested 7 years later on 23
November 2018. The
matter was transferred to the High Court on 14
October 2019. It’s not approximately three years later and the
trial has yet
to commence.
[6]
The
matter came before this court on 17 October 2022, when it was
enrolled for trial for the sixth time. On said day and
notwithstanding
being certified trial-ready, it could not proceed.
The reason:- the Accused’s private legal representative,
Advocate Mandla
Mamba (“Mr Mamba”)
failed
to attend court. The accused professed to be unaware why his legal
representative failed to appear. The instructing attorney
Mr Labe was
also not in court. Contact was made with Mr Labe who later appeared
and
explained
that Mr Mamba
[3]
was brief to
attend to the matter, and the whereabouts of said was unknown to him
too. From the court file it was not the first
time that Mr Mamba
failed to appear on days allocated to this matter.
[7]
The matter was kept on the roll, and rolled
over to 19 October 2022, together with a directive calling for the
appearance of Mr
Mamba.
[8]
On 19 October 2022 Mr Mamba attended court
as directed. He explained from the bar that he failed to appear on
the trial date of
17 October 2022, as his car was torched on 16
October 2022. According to him he was unable to inform or relay the
message of the
incident to either the State, the court or his
instructing attorney. Mr Mamba was directed to file an affidavit by
24 October 2022,
explaining his failure to appear at court on the
trial date in detail, together with contemporaneous documents. He was
specifically
directed to explaining why his failure to appear does
not constitute unprofessional conduct and should not be referred to
the Legal
Practice Council for investigation.
[9]
Having lost two allocated trial dates due
to Mr Mamba’s non-attendance, the court reassured by Mr Mamba
that the matter will
commence immediately and will be finalise within
the remaining allocated days. The state had already provided Mr Mamba
with a proposed
Section 220 admissions bundle weeks before, in order
to curtail the issues. The court was further advised that there would
be an
intended plea by the Accused. For this purpose, Mr Mamba
requested the court to allow him time to finalise the written plea
explanation
statement. Mr Mamba and the Accused was allowed this time
at the expense of the State who was of the view that these issues
should
have been sorted out prior to the trial date. It took 3 hours,
in which time the State attended to re-organising its case bundles
taking cognizance of the intended plea.
[10]
The court reconvened shortly before the end
of the day. Mr Mamba indicated that he was instructed by the Accused
that he no longer
intended to plead and was not willing to make the
Section 220 admissions previously agreed to. This Accused position
was accepted
by all and the matter rolled over to the following day
for the trial to commence and the Accused to plead as he wished.
[11]
On 20 October 2022, Mr Mamba indicated that
the Accused wanted to say something. The Accused simultaneously
raised his hand and
indicated that he no longer wished to retain the
services of Mr Mamba. The Accused explained that he had lost faith in
Mr Mamba,
who never properly advised him, but merely indicated to him
that he needs to plead guilty. Consequentially, the Accused sought a
postponement of the matter for purposes of obtaining new legal
representation. Attempts by the court to explain to the accused
that
Mr Mamba has already indicated that a guilty plea would not ensue and
that the matter was to proceed with a “full trial”,
was
fruitless and he insisted on new legal representation.
[12]
It is against the aforementioned background
that Section 342A was invoked. Section 342A of the Criminal Procedure
Act 51 of 1977
(as amended) provides as follows:-
“
342A
Unreasonable delays in trials
(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
adviser, the State or a
witness.
(2)
In
considering the question whether 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 effect on the interests of the public or the victims in
the event of the prosecution being stopped or discontinued;
(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-
(a)
refusing further postponement of the proceedings;
(b)
granting a postponement subject to any such conditions as the court
may determine;
(c)
where the accused has not yet pleaded to the charge, that the case be
struck off the roll and the prosecution not be resumed
or instituted
de novo without the written instruction of the attorney-general;
(d)
where the accused has pleaded to the charge and the State or the
defence, as the case may be, is unable to proceed with
the case or
refuses to do so, that the proceedings be continued and disposed of
as if the case for the prosecution or the defence,
as the case may
be, has been closed;
(e)
that-
(i)
the State shall pay the accused concerned the wasted costs incurred
by the accused as a result of an unreasonable
delay caused by an
officer employed by the State;
(ii)
the accused or his or her legal adviser, 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
adviser, 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.
[Date
of commencement of para. (e): to be proclaimed.]
(4)
(a)
An
order contemplated in subsection (3) (a), where the accused has
pleaded to the charge, and an order contemplated in subsection
(3)
(d), shall not be issued unless exceptional circumstances exist and
all other attempts to speed up the process have failed
and the
defence or the State, as the case may be, has given notice beforehand
that it intends to apply for such an order.
...
”
[13]
The common law
principle that a criminal trial should be commenced and completed
expeditiously, was given constitutional protection
through the right
to a fair trial entrenched in Section 35(3)of the Constitution, which
reads as follows:-
“
(3)
Every accused person has a right to a fair trial, which includes the
right-
(a)
to be informed of the charge with sufficient detail to answer it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial before an ordinary court;
(d)
to have their trial begin and conclude without unreasonable delay;
(e)
to be present when being tried;
(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;
…”
[14]
Ignoring for the
moment all the occasions the matter had been stood down for one and
two days in order to facilitate consultations
with the Accused and
like, it was confirmed that the matter was formally set down for
trial on at least six occasions. Throughout,
the Accused has been
legally represented, initially through Legal Aid, and after
terminating the mandates of three different legal
practitioners from
Legal Aid South Africa, the Accused also enjoyed the benefit of a
private legal practitioner through Judicare
at the expense of Legal
Aid South Africa.
[15]
From that before court, the events that
took place between October 2019 to date can be summarised as follows.
15.1
The Accused appeared for the first time on
14 October 2019
in the Graskop Circuit Court. The matter was then transferred to the
Mbombela High Court for the purposes of trial to commence
on 21
October 2019. At this point in time the Accused was represented by a
legal practitioner appointed by Legal Aid South Africa.
The trial
however did not proceed and was postponed to 27 July 2020. The
Accused terminated the mandate of the legal practitioner
so
appointed, a new legal practitioner was appointed by Legal Aid South
Africa;
15.2
During
July
2020
, the trial again did not proceed.
According to the Accused, this was due to him falling ill. Again,
there appears to have been
a change of legal representation due to
the mandate of the second appointed Legal Aid legal practitioner
being terminated;
15.3
On
14 October
2020
, the matter was postponed to 19
October 2020, and after the accused complained of ill health, the
court directed the Nelspruit
Correctional Services Centre (Hospital
Division) to assess, examine and attend to the Accused on the basis
of the report compiled
by Rob Ferreira Hospital, dated 13 October
2020. The aforesaid report was received and the Accused was confirmed
to be fit to attend
the court proceedings. As a result of aforesaid,
the matter was postponed to 26 April 2021 for trial;
15.4
On
26 April
2021
, Advocate Mabelane, withdrew from
record due to his mandate being terminated by the Accused. Such
termination was alleged to be
without reasonable cause, and the
matter was postponed to 10 May 2021 for a final opportunity to be
afforded to the Accused to
obtain legal representation by Legal Aid.
Ms Mthethwa was so appointed, and the matter was postponed to 22
November 2021 for trial;
15.5
On
22 November
2021
, the court granted the Accused an
indulgence in order for the matter to stand down so that the Accused
could consult with Ms Mthethwa
amongst other to take instruction in
respect of Section 220 admissions. In the afternoon of 22 November
2021, Legal Aid South Africa
(Mbombela local office) withdrew finally
as attorneys of record for the Accused, and returned the content of
the docket and the
Section 220 files to the office of the Director of
Public Prosecution. Legal Aid explained in correspondence handed up
to the court
that such withdrawal was necessitated due to the fact
that the Accused refused to cooperate and give any instruction in
respect
of the prosecution of his defense. The Accused further
refused to speak during any consultations at all, making it
impossible to
ascertain his instruction and to proceed with the
matter. It was further placed on record that the decision to withdraw
was motivated
by the Accused’s unreasonable termination of the
mandates of the previously appointed legal practitioners so appointed
by
Legal Aid South Africa;
15.6
The matter accordingly rolled over to the
following day, being
23 November 2021,
to afford the Accused an opportunity to
obtain a private legal representative. This continued until 29
November 2021 when private
counsel (Mr Mamba) was confirmed, but he
was unable to appear, as said counsel was suffering from ill-health.
It boggles the mind
why a legal presentative would be appointed when
the very person was unable to attend court due to ill-health.
15.6.1.
According to Mr Mamba he was briefed by MM
Labe Attorneys on 26 November 2021, but due to his ill health, he
never managed to attend
court when he was supposed to. Mr Mamba
indicated that he provided the court with a medical certificate,
which appears on file,
and which seems to be that of a pharmacy
clinic dated 29 November 2021.
15.7
According to Mr Mamba, he attended court on
1 December 2021, and the matter was postponed to 18 February 2022.
This is incorrect,
as it was postponed to
18
January 2022
, and it was for the
purpose of securing a trial date;
15.8
Between the period
18
January 2022
and
March
2022
, the matter did not proceed as a
result of a pending complaint against Mr Mamba with the Legal
Practice Council. Said would potentially
have the effect of
frustrating the continuance of the trial. The parties, being the
State, the Accused and Mr Mamba, agreed that
in order to avoid a
situation where new legal representation might be necessary in the
middle of the trial, that this issue needed
to be addressed before
the trial commenced. For this purpose, the matter was postponed to 11
April 2022 for both the State and
the Defense to arrange for a trial
date, as it was envisaged that by that time the Legal Practice
Council issue against Mr Mamba
would have been clarified. The accused
was warned that this issue pertaining to Mr Mamba might cause him
prejudice and frustrate
the finalization of the matter. The Accused
reconciled himself with said position.
15.9
On
11 April
2022
, Mr Mamba failed to appear before
court. Mr Mamba indicated to the State that he was ill. The court
ordered him to appear by 14
April 2022, together with a doctor’s
letter;
15.10
On
14 April
2022,
Mr Mamba again failed to appear
in court, and the court ordered that the matter be postponed to 20
April 2022 for Mr Mamba to appear
before the court, and that such
order would be issued by the Registrar. According to Mr Mamba he
submitted a medical certificate.
However, same does not appear from
the record. At this point in time, Mr Mamba confirmed on behalf of
the Accused that the matter
remained trial-ready, and that it will
proceed on the next trial date. As such, the matter was postponed to
17 October 2022.
[16]
Before the aforesaid date, the matter was
enrolled for case management on 26 September 2022. On said date Mr
Mamba again failed
to appear, but communicated to the State, who in
turn communicated to the court, that the matter remained trial-ready,
although
Mr Mamba was ill, he confirmed that there was no reason why
the matter ought not to proceed on 17 October 2022.
[17]
As at that point, and save for a three
month delay due to the Legal Practice Council enquiry in respect of
Mr Mamba, Mr Mamba had
failed to appear due to allegedly being ill on
four occasions and the matter had been postponed due to the Accused
changing his
legal representatives on four occasions.
[18]
That brings us to the events of
17
October 2022
. As alluded to herein
above, there was once again no appearance by Mr Mamba on 17 October
2022.
[19]
In addition to being directed to file an
affidavit in re his non appearance of 17 October 2022, and pursuant
to his mandate being
terminated by the Accused, Mr Mamba was further
directed to make written submissions in respect of the Section 342A
enquiry, for
as far as he had been implicated by the Accused as the
cause of delay. Mr Mamba was directed that same stood to reach the
Registrar
by 09h00 on Monday, 24 October 2022. Should it be received,
Mr Mamba would be excused from the proceedings. As at 09h00 nothing
had been received.
[20]
The matter proceed there without, and the
State made it submissions in terms of that which stands to be
considered by the court
in conducting the enquiry. The matter was
stood down for this judgment to 26 October 2022.
[21]
At approximately 16h00, the afternoon on 24
October 2022, Mr Mamba sent a four page affidavit via e-mail. Upon
enquiry by the Registrar,
Mr Mamba indicated that same constituted
both his submissions in respect of the Section 342A enquiry, as well
as his exonerating
affidavit pertaining to his non-appearance on 17
October 2022.
[22]
According to Mr Mamba, the full extent of
his explanation for his failure to appear was that:-
“
On
the 16
th
day of October 2022 while attending a meeting of the ANC an incident
occurred whereinafter that my car was torched. The incident
was
reported to the police and it is under investigation with the
Barberton police.
…
…
my
robe was inside the car, many of my important belongings were burnt
inside the car, I could not communicate with any of my colleges
because I left my phone while we were running away. I communicated
with Advocate TD Mahasha in the afternoon of the 17
th
of October 2022 to inform him about the incident
.”
[23]
In respect of Mr Mamba’s involvement
in this matter and the delays, he submitted that he was, as already
stated herein above,
briefed during November 2021. He consulted with
the Accused in April 2022 and again in the first week of October
2022. According
to Mr Mamba he advised the Accused to plead. This was
seemingly as early as the first week of October 2022. According to Mr
Mamba,
this was accepted by the Accused, and that was the position
throughout up until the court appearance on 19 October 2022.
[24]
According to Mr Mamba, the Accused never
told him that he did not want to pursue the plea, but nevertheless,
he confirmed to be
ready to proceed with new instructions. He was
surprised when the Accused changed his mind in respect of his legal
representation
on 20 October 2022. Mr Mamba submitted that the
Accused abused Section 35(3) of the Constitution, and has delayed
this matter’s
finalisation because he had changed his legal
representatives many times, and even in circumstances previously when
he was said
to be sick, the doctor confirmed that the Accused was fit
to proceed with the trial.
[25]
It is evident from that set out herein
above that the delay in this matter has now been in excess of three
years. It is estimated
by the State, and confirmed by the erstwhile
legal representative of the Accused (Mr Mamba), that the trial can
effectively be
finalized within two to three weeks. This is also
confirmed, considering the time that was previously allocated by the
roll planner
when the matter was previously set down for trial.
[26]
It is reasonably accepted that a criminal
trial will have some delays, and the mere lapsing of time will not
always amount to an
unreasonable delay. This is however not the case
in this matter. The delay here is manifestly unreasonable.
[27]
The reasons for the three-year delay in
this matter can almost exclusively be attributed to the Accused and
Mr Mamba. After explaining
the purpose and process envisages in
section 342A, relaying the relevant factors and happenings in this
matter to the Accused,
he was asked to indicate if there is any
person to blame for the delays. He indicated that he was to blame
together with the court
as the court postponed the matter for to
lengthy periods at a time.
[28]
The delays are categorised by repeated
termination of the mandates of the appointed legal representatives.
First the three Legal
Aid South Africa representatives, then the
Judicare appointed legal representative and now private counsel. A
pattern appears to
emerge where, as soon as consultations reached the
point of specific instruction (for example in respect of Section 220
admissions
or the trial being about to start), the appointed legal
representative’s mandates are terminated.
[29]
The
right to be assigned a legal representative, is enshrined in the
Constitution, but remains a limited right. The reason for the
qualification is obvious. Although an Accused should be given a
reasonable opportunity to obtain and/or be appointed legal
assistance.
Similarly, if a legal representative withdraws, an
accused must be given an opportunity to apply to Legal Aid South
Africa for
the appointment of another legal representative.
[4]
However it does not include the right to demand a legal
representation at the expense of the State of your choice.
[5]
[30]
An accused is also entitled to appoint a
private legal representative. But an Accused cannot be allowed to
exercise these rights
in such a fashion as in this case where after
three years no progress has been made. The Accused has exhausted and
utilized all
his rights in respect of the appointment of a legal
representative and/or being assigned a legal representative.
[31]
On the appointment of Mr Mamba, the cause
for the delay seem to have shifted slightly from the continues change
in legal representatives
to the conduct of the chosen legal
representative. Since November 2021, the delays were caused by the
conduct of Mr Mamba either
by being ill on the allocated trial dates,
as well as the case management, or being unable to attend court due
to some unforeseen
event such as the torching of his vehicle.
[32]
Reviewing the one medical certificate on
file, as well as the content of the previous orders made in respect
of Mr Mamba’s
non-appearance, it is clear that his professed
excuses for his non-attendance at court were unconvincing. Yet he was
favored with
the benefit of the doubt.
[33]
Similarly, the explanation professed for
his non-appearance on 17 October 2022 is equally unconvincing.
Notwithstanding explicitly
being directed to provide contemporaneous
proof of the incident of 16 October 2022 relied on, Mr Mamba only
placed that quoted
herein above before court to consider the veracity
of this averments. No mention of a case number, who the investigating
officer
is , no copy of his statement made to the police or
photograph of the after math. Mr Mamba also failed to explain why his
conduct
does not constitute unprofessional conduct. The aforesaid
failure in itself evidences the lack of appreciation Mr Mamba has for
his conduct in this matter.
[34]
The
Legal Practice Act 28 of 2014
and the accompanying Code of Conduct
[6]
place a mandatory positive obligation upon legal practitioners to
maintain the highest standards of honesty and integrity, uphold
the
Constitution of the Republic and the principles and values enshrined
in the Constitution, and honour any undertaking given
by them in the
course of their business or practice.
[35]
A practitioner as Mr Mamba is obliged to
treat the interests of their clients as paramount, provided that
their conduct shall be
subject always to, their duty to the court,
the interests of justice, observance of the law; and the maintenance
of the ethical
standards prescribed by this code, and any ethical
standards generally recognised by the profession;.
[36]
Paragraph 28 of the Code of Conduct
provides:
“…
28.5
Counsel, upon accepting a brief, shall perform the necessary work to
the best of their abilities, in keeping with
counsels' seniority and
relevant experience and:
28.5.1
counsel, upon acceptance of a trial brief,
tacitly represent that
they can properly commit themselves to remaining available throughout
the period of the trial
without compromising such commitment by
reason of any prior commitments in other matters, regardless of
whether such other matters
have been set down at a time before or
after the period estimated for the duration of the trial;
…
..
28.6
Counsel
must decline
the offer of a brief if their other
commitments do not reasonably allow them to discharge their duty of
diligence in the preparation
of the brief. In particular, counsel
shall not accept any brief if it is reasonably foreseeable that –
28.6.1
counsel shall
be unable to attend to all
of the necessary work
within a reasonable time;
28.6.2 the
risk exists that counsel might, because of a conflict of interest or
any other reason, have to surrender
the brief;
28.6.3 the
failure to attend to the brief timeously or the surrender of the
brief is likely to result in embarrassment,
inconvenience or
prejudice to the instructing attorney or the client or a fellow
counsel who might be briefed thereafter, or to
the court.
28.7
If,
after counsel has accepted a brief in any matter, any circumstance
arises that imperils the proper discharge of counsel’s
duty of
diligence, counsel shall, once such eventuality is apparent,
especially in respect of trial briefs
, report such circumstances
to the instructing attorney to facilitate timeous steps to inhibit
prejudice to the client and facilitate a successor to be briefed
in time to take over the brief.”
[37]
Mr Mamba’s conduct by failing to
attend alternatively continuously being of such ill health that he
was unable to attend court
and execute his obligation and duties
towards the Accused, and the court, offends the Code of Conduct.
[38]
In the event that a legal practitioner is
of such ill health that he or she can no longer execute his or her
brief, such legal practitioner
is obliged to timeously inform his or
her client to obtain new legal representation, so as to not frustrate
the proper administration
of justice. Ignorant of this fact, Mr Mamba
remained on brief. His personal issues, either through ill health,
the pending complaint
at the Legal Practice Council, the alleged
torching of his car, founded the basis for various postponements
being sought and granted,
are concerning. One cannot be blamed when
in these circumstances the mind moves to the question as to whether
all of this amounts
to tactics employed for the purpose of delay. The
probabilities are just unlikely.
[39]
As stated in
Johannesburg
Society of Advocates and Another v Nthai and Others
2021 (2) SA 342
(SCA) at par [1]:
“
As
officers of the court, advocates serve a necessary role in the proper
administration of justice. Given the unique position that
they
occupy, the profession has strict ethical rules. The observance of
those rules is, regrettably, not always assured. Because
—
'(t)he preservation of a high standard of professional ethics [has]
been left almost entirely in the hands of individual
practitioners,
it stands to reason, firstly, that absolute personal integrity and
scrupulous honesty are demanded of each of them
and, secondly, that a
practitioner who lacks these qualities cannot be expected to play his
part'
.”
[7]
[40]
The conduct displayed by Mr Mamba in this
matter is concerning and warrants a referral to the Legal Practice
Council. The Legal
Practice Council ought to investigate and
consider, and for this purpose this judgment will be made available
to the Legal Practice
Council, together with a copy of the court
file.
[41]
The delay, although not specifically
professed by the Accused, must have an effect on his personal
circumstances, considering that
he has been incarcerated since 2018.
The only sensible conclusion is that there is committed attempt to
frustrate the finalisation
of this matter.
[42]
The witnesses and the victims of the seven
cases are left silenced. The majority of the witnesses consist of the
alleged victims
of the rapes and kidnappings. It is trite that rape
and sexual assault are acts that remove power, control and dignity
form victim-survivors.
By this trial not proceeding, they similarly
and in a continuous fashion, reminded that they are not on control.
That they are
required to be dragged alone in the hope that justice
will prevail. They are unconsciously required to re-live those events
in
order for them to remain current in their minds while awaiting the
day to testify in vindication of that which happened to them.
This is
so in circumstances where the landscape for victim-survivors of rape
and sexual assault are already very challenging, and
they are
particularly susceptible to secondary victimisation.
[43]
As
alluded to above, the majority of the charges emanate from as far
back as 2011.
[8]
The victims of
these cases can effectively not allowed to “heal” and
move on with their lives for as long as these
proceedings are
pending.
[44]
The charges, as set out above, are not
complex, but very serious. They are acts of violence against women.
[45]
The delay causes potential prejudice to the
State, as it is unknown for how long these victims and witnesses will
remain willing
to endure and re-live that which they allege had
happened to them at the hands of the Accused. Not to mention the
potential death
or disappearance or non-availability of other
witnesses, or loss of evidence, considering the extended time from
2011 to date.
[46]
The delay has an undeniable negative and
eroding effect on the administration of justice. The mere fact that
an alleged rapist and
kidnapper, over a period of eleven years has
not be tried, alternatively acquitted, sends a message of
incompetence to the community
at large.
[47]
Why would any accused looking in from the
outside, believe that he or she would receive a fair trial when it
takes this inordinate
amount of time. Similarly, why would any
potential victim be motivated to report and to pursue justice, where
from this very matter
it appears that such a victim would have to
wait more than a decade for the matter to be finalized. There can be
no doubt in the
present matter that the delay up to date is an
unreasonable delay which calls to be eliminated in order to restore
that which remains.
[48]
Further relevant considerations would be
the manner in which this case is presented, considering that on more
than one occasion,
and notwithstanding indications of admissions
and/or a plea, the Accused has shifted gears at the eleventh hour,
necessitating
the calling of various further witnesses which the
State had previously been made to believe to be unnecessary.
[49]
It appears that the Accused is averse to
advice. As such it can reasonably be anticipated that the Accused
will in the future again
find himself in the position where he loses
trust in his elected legal representatives founded on the advise
given to him by such
a legal representative.
[50]
This court is required to strike a balance
between the interest of the Accused, the harm to the rule of law and
criminal justice
system, and the conduct as displayed by the Accused
and his legal representative inflicts.
[51]
Motivated
by that written by Edward Cameron, JJ Du Toit and Alexia
Katsiginis,
[9]
on delays, yet
acutely aware that time limits are constraining in nature, the only
option remaining is to set specific time limits
to ensure that the
delays caused in this matter are expediently eradicated.
[52]
Although it is
warranted in the present matter to refuse any further postponement,
and effectively oblige the Accused to proceed
without obtaining
further legal representation, the practicalities and impact on the
prepared rolls of this court, and manner in
which the case stands to
be presented make it inappropriate. So too the allocated time for
this matter has effectively been eroded
by the conduct of Mr Mamba
and the Accused. On enquiry it appears that matters allocated for the
weeks to come, cannot effectively
be pushed out to facilitate the
hearing of this matter.
[53]
Taking all of the
above in consideration, the order set out below is the most effective
manner in moving this matter to finalisation
while striking a balance
between the interest as this court is required to do.
[54]
The following orders are made:
IN
RESPECT OF THE SECTION 342A ENQUIRY:
1.
In terms of Section 342A(3)(b) a final postponement of the trial is
granted and the matter is postponed
to 16 January 2023 on the
following conditions:
1.1.
The trial shall commence and be finalized
between the period 16 January 2023 to 24 March 2023;
1.2.
The accused is afforded a
final
opportunity to secure new legal representation. Aforesaid legal
practitioner shall appear before this court on
21
th
of November 2022 at 09h00
in order to
be properly informed about the content of this order;
1.3.
Having been informed of the content of this
order, the legal practitioner contemplated in 1.2 above shall appear
on the
28
th
of November 2022 at 09h00
and confirm
inter alia
:
1.3.1.
that said legal practitioner has been
provided with a copy of the docket
1.3.2.
that said legal practitioner has consulted
with the accused and has been properly and adequately instructed in
the matter;
1.3.3.
that said legal practitioner is and will
remain available for the duration of the trial to commence and be
finalized within the
period
16 January
2023 to 23 March 2023
;
1.4.
The
legal practitioner contemplated on 1.2 above and the state shall
conduct an
inter
partes
pre- trial by no later than
10
December 2022
which pre-trial shall meaningfully deal with the aspects set out in
paragraph 12.12.5, Form D and D1 of the Practice Directive
[10]
1.5.
The
state shall enroll the matter for Judicial case management as
contemplated in paragraph 12 of the Practice Directive
[11]
on the criminal case management roll aand complete the required Form
D providing the information per Form D1.
1.6.
In the event
that
the accused fails to secure a legal presentative per 1.2 or there is
a failure by the legal practitioner to appear and or adhere
to 1.3,
the steps contemplated in 1.3, 1.4 and 1.5 above shall be undertaken
by the accused and the trial shall proceed with the
accused being
unrepresented.
2.
A copy of this order will be provided to
the Accused immediately on it being handed down and before he leaves
the court building.
3.
Resultant from the accused indication that
Adv Mashele has been secured to represent him, but Adv Mashele not
being present in court,
a copy of this order will also be made
available to Adv Mashele by the Registrar.
IN
RESPECT OF THE CONDUCT DURING THIS MATTER BY MR MANDLA MAMBA:
4.
The Registrar should forward a copy of this judgment and the court
file to The Legal Practice Council
– Mpumalanga, for the
purpose of an investigation into the conduct of Mr Mandla Mamba.
GREYLING-COETZER
AJ
DATE
OF HEARING: 24
OCTOBER 2022
DATE
OF JUDGMENT: 26 OCTOBER 2022
FOR
THE STATE: ADV
MOLOTUDI with ADV MAHASHA
FOR
THE ACCUSED: IN PERSON
[1]
Contravention
of Section 3, read with
Sections 1
,
56
(1),
57
,
58
,
59
,
60
and
61
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
; further read with
Section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
[2]
Kidnapping,
read with
Section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
[3]
an advocate as defined in Section 34(2)(a)(i) of the Legal Practice
Act 28 of 2014 (being an advocate without a trust account).
[4]
S
v Kok
2005 (2) SACR 240 (NC)
[5]
S
v Halgryn
2002 (2) SACR 211 (SCA)
[6]
paragraph
3
[7]
Referencing
Hefer JA in
Kekana
v Society of Advocates of South Africa
1998 (4) SA 649 (SCA)
[8]
Case
1: 30 January 2011; Case 2: 19 February 2011; Case 3: 21 April 2011;
Case 4: 10 September 2011; Case 5: 2 November 2011;
Case 6: 20
January 2012; Case 7: 15 November 2014
[9]
Completing
the puzzle – Is there a solution to the delay in criminal
trials?
De Rebus 2020 (Dec) DR9
[10]
issued on 3 October 2022.
[11]
issued on 3 October 2022