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[2018] ZANCHC 29
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Van Eeden v S (CA&R87/2017) [2018] ZANCHC 29; 2018 (2) SACR 218 (NCK) (18 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Circulate
to Judges:
YES
/ NO
Reportable:
YES
/ NO
Circulate
to Regional Magistrates:
YES /
NO
Circulate
to Magistrates:
YES /
NO
CASE
NO:
CA&R
87/2017
DATE
HEARD:
23
APRIL 2018
DATE
DELIVERED:
18 May
2018
In
the special review
:
VAN
EEDEN, DIEDERICK
JOHANNES
and
THE
STATE
Coram:
Tlaletsi
JP
et
Olivier
J
JUDGMENT
ON SPECIAL REVIEW
Olivier
J:
[1.]
The
accused, Mr DJ Van Eeden, is being tried in the Regional Court on
charges of sexual assault and rape. On 17 November 2016,
when
the charges were put to him, he was represented by Mr P J Zietsman, a
practising attorney.
[2.]
The
accused pleaded not guilty to both charges. Apart from putting
on record that he had only chased the complainant away
from his home,
no plea explanation was offered. The evidence of the complaint
and her mother was presented. The matter
was then remanded to
27 January 2017 for further trial. On that date Mr Zietsman was
not available and the case was remanded
to 10 February 2017.
[3.]
On 10
February 2017 the representation of the accused was taken over by Ms
Markram, after Mr Zietsman had in the meantime unfortunately
passed
away. The matter was remanded to 9 March 2017 for the
record to be transcribed, and on that date it was remanded
to 31 May
2017, for further trial.
[4.]
On 31 May
2017 Ms Markram appeared on behalf of the accused and placed on
record that Mr Zietsman had been interdicted from practising
as an
attorney at the time of his representation of the accused. It
is common cause that, on application by the Law Society
of the Cape
of Good Hop
e
(
under
case no 1098/16), an interdict had been granted by this Court on 15
August 2016 ordering,
inter
alia
:
“
1.
Pending the obtaining by the respondent of a Fidelity Fund
Certificate for the period 1 January 2016
to 31 December 2016
prescribed in terms of section 41(1) of the Attorneys Act 53 of 1979,
as amended, the respondent is interdicted
and prohibited from
practising as an attorney of this Court.
2. That the
Respondent surrender and deliver to the Registrar of this Honourable
Court his Certificates
of Enrolment as Attorney who shall be and is
authorised
and directed to return to the Respondent such
certificates upon production to him by the Respondent of the
certificate referred
to in paragraph 1 above.
”
[5.]
It
appears from the file in that matter that Mr Zietsman’s failure
to furnish an audit report for the period 1 March 2014
to 28 February
2015 and his failure to apply for and obtain a fidelity fund
certificate as envisaged in section 42(1) of the
Attorney’s
Act
[1]
for the year 2016 had led to that application and the Court order.
[6.]
The
presiding Regional Magistrate has submitted the criminal proceedings
for special review, and has suggested that the proceedings
be set
aside and that the matter be remitted for trial
de
novo
.
The Regional Magistrate also pointed out that the parties had
expressed the wish that, in such event, the trial be conducted
before
the same Regional Magistrate.
[7.]
I then
directed that the matter be set down for hearing and that the
following four questions be addressed:
7.1
Are the proceedings reviewable at this stage, while the criminal
trial has not
been finalised yet?
7.2
Did the participation of Mr Zietsman in the criminal trial constitute
a fatal
irregularity,
per
se
necessitating the setting aside of those proceedings?
7.3
If not, did it in the circumstances of this particular matter
prejudice the
accused and constitute an infringement of his
constitutional rights to a fair trial in terms of section 35(3)(f) of
the
Constitution
?
7.4
If the proceedings are to be set aside, should an order be made that
the accused
be tried
de
novo
(or should it be left to the Director of Public Prosecutions to
decide whether or not reinstitute the prosecution of the accused)
and
would it be proper for the same Regional Magistrate to preside in
such a new trial?
[8.]
At the
subsequent hearing of the matter the Director of Public Prosecutions
was represented by Adv. M Makhaga, the accused by Adv.
D C Jankowitz
and the Law Society by Mr S M Addinall.
[9.]
It is
trite that, although a Court will not readily interfere in
proceedings that have not yet been completed, it will be done “
where
injustice might otherwise result or where justice might not by other
means be attained
”
[2]
.
In
Mortimer
v Municipality of Stellenbosch
[3]
Gauntlett AJ, in pointing out that not every unfairness would justify
interference in incomplete proceedings, remarked
[4]
:
“
That unfairness has occurred is not the
issue. The issue is that an irregularity has occurred
(unfairness is just one manifestation)
which, it is already apparent,
is of a kind and a degree calculated to give rise to injustice.
And in that regard, the Court
must consider whether the injustice is
such that the affected party might not otherwise by other means
attain justice. It
may be noted that this is not the only area
of law which seeks to differentiate between the potentially fatal or
irremediable and
that which is irregular, but is not to be treated as
vitiating.
”
[10.]
The
question is therefore really whether the present matter is one where
the Court should in the exercise of its discretion interfere
in the
as yet incomplete trial of the accused. To consider this it
will have to be determined whether the fact that Mr Zietsman
represented the accused:
10.1
while he had no fidelity fund certificate; and
10.2
while there was a court order prohibiting him from practising
constituted an irregularity
in the criminal proceedings and, if so,
whether the irregularity was of such nature as to have vitiated the
proceedings, regardless
of the merits. The proper approach in
this regard was set out as follows in
S
v Mkhise
;
S v
Mosia
;
S v
Jones
;
S v Le
Roux
[5]
:
“
It
is a well-established principle that an irregularity in the conduct
of a criminal trial may be of such an order as to amount
per
se
to a failure of justice, which
vitiates the trial. (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 per se to vitiate the trial. In
such a case the Court of Appeal sets aside the conviction without
reference to the merits.
There remains thus neither a conviction nor
an acquittal on the merits, and the accused can be re-tried…
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.’
In the former case the fact of the irregularity is
all that matters. No further enquiry into the merits is called
for
[6]
.
In the latter case, as indicated in the quoted passage, the evidence
is to be examined and assessed by the Court of Appeal
and it must
‘decide for itself whether, on the evidence and the findings of
credibility unaffected by the irregularity or
defect, there is proof
of guilt beyond reasonable doubt’.
”
[11.]
Ms
Makhaga argued that Mr Zietsman’s participation in the criminal
trial indeed amounted to a fatal irregularity that, in
itself,
necessitates the rescission of those proceedings. Both Mr
Jankowitz and Mr Addinall agreed that Mr Zietsman’s
appearance
on behalf of the accused constituted an irregularity in the criminal
proceedings, but argued that it was not an irregularity
per
se
calling
for the rescission of those proceedings, and that there is no
indication that the accused was prejudiced by being represented
by Mr
Zietsman.
[12.]
The right
to legal representation in the context of criminal proceedings was
set out as follows in
Ndlovu
v S
;
Sibisi
v S
[7]
:
“
Section
35(3) of the Constitution … provides:-
‘
Every accused person has a right to a fair
trial, which includes the right –
…
(f) to choose, and be
represented by, a legal practitioner, …’
The relevant parts of Section 73 of the Criminal
Procedure Act … provide:-”
‘
(1) …
(2) An accused shall be entitled
to be represented by his legal adviser at criminal proceedings
if
such legal adviser is not in terms of any law prohibited from
appearing at the proceedings in question
.
(2A) …’”
[8]
[13.]
The
expressions “
legal
practitioner
”
and “
legal
adviser
”
are not defined in respectively the
Constitution
and the
Criminal
Procedure Act
[9]
.
[14.]
In the
Labour
Relations Act
[10]
the term “
legal
practitioner
”
is defined as “
any
person admitted to practise as an advocate or an attorney in the
Republic
”.
[15.]
In
De
Allende v Baraldi t/a Embassy Drive Medical Centre
[11]
the word “
practitioner
”
was held to include an attorney or an advocate in the context of
legal representation in proceedings in the Magistrates’
Court.
In fact, that the word “
practitioner
”
would, for purposes of such proceedings
[12]
,
include an attorney is clear when regard is had to section 20 of the
Magistrates’
Court Act
[13]
,
which provides that “
an
advocate or attorney of any division of the Supreme Court
[14]
may appear in any proceedings in any court
”.
[16.]
For
present purposes it can, in my view, safely be assumed that an
attorney would indeed in the normal course of events qualify
as a
“
legal
adviser
”
and as a “
legal
practitioner
”
for purposes of, respectively, the
Criminal
Procedure Act
and
the
Constitution
.
The definition of the word “
practitioner
”
in section 1 of the
Attorneys
Act
is indeed that it means “
any
attorney
,
notary or conveyancer…
”
[15]
.
In fact, even a candidate attorney would by virtue of the provisions
of section 8 of the
Attorneys
Act
and section 21 of the
Magistrates’
Court Act
be able to act as “
legal
adviser
”
in terms of the
Criminal
Procedure Act
[16]
(and therefore in my view by extension a “
legal
practitioner
”
for purposes of the
Constitution)
,
provided that he or she “
is
not in terms of any law prohibited from appearing at the
proceedings
”
[17]
.
[17.]
In terms
of section 1 of the
Attorneys
Act
an “
attorney
”
is “
any
person admitted to practise as an attorney …
”.
It is common cause that Mr Zietsman had been properly admitted and
enrolled to practise as an attorney.
[18.]
Due to
the fact that Mr Zietsman was not in possession of a fidelity fund
certificate at the time of representing the accused he
was, however,
in terms of section 41(1)
[18]
of the
Attorneys
Act
prohibited from practising or acting “
as
a practitioner on his or her own account or in partnership
”
[19]
.
[19.]
It is
indeed common cause that Mr Zietsman had in the normal course of
events practised as an attorney for his own account, and
there is no
indication that he had been representing the accused on any other
basis. It in fact appears from the record that
Mr Zietsman
represented the accused “
as
per private instructions
”,
which in my view could only mean that he was representing the accused
on the basis that he would be paid for his services
as part of his
private practise. This would have constituted practising and
acting as an attorney and practitioner “
for
his … own account
”
[20]
,
which he was under the circumstances by the provisions of section
41(1) of the
Attorneys
Act
prohibited from doing.
[20.]
Did the
prohibition from practising (or acting as a practitioner) on own
account
[21]
in section 41(1)
of the
Attorneys
Act
include a prohibition from appearing in the criminal proceedings?
In my view there can be no doubt that the act of representing
a
client for reward would constitute practising and acting as a
practitioner, as envisaged in section 41(1) of the
Attorneys
Act
[22]
.
[21.]
The
provisions of section 41(1) therefore by necessary implication also
prohibited Mr Zietsman from appearing in,
inter
alia
,
the Regional Court “
on
his … own account
”.
[22.]
At the
time of representing the accused Mr Zietsman was therefore “
in
terms of
(section
41(1) of the Attorneys Act)
prohibited
from appearing at the proceedings
”,
as envisaged in section 73(2) of the
Criminal
Procedure Act
.
In my view he did therefore not, in terms of the provisions of that
Act, have the right to represent the accused in the
criminal
proceedings.
[23.]
To
interpret the provisions of section 73(2) of the
Criminal
Procedure Act
as permitting the appearance of an attorney who does so for reward
and who is at the time prohibited by section 41(1) of the
Attorneys
Act
from practising on his or her own account, and therefore also from
appearing for a client on that basis, would defeat the very
purpose
of section 41 of the
Attorneys
Act
viz
“
the
reimbursement of persons who may suffer pecuniary loss as a result of
theft committed by an attorney
”
[23]
.
[24.]
In view
of this conclusion it is unnecessary to consider whether the court
order could also be regarded as a “
law
”
for purposes of the qualification in section 73(2) of the
Criminal
Procedure Act
[24]
.
[25.]
It is
also not necessary to consider whether Mr Zietsman could at the time
still have been regarded as being “
admitted
to practise
”,
as envisaged in the definition of the word “
attorney
”
in section 1 of the
Attorneys
Act
[25]
.
Even if he was at the time of representing the accused still an
attorney for purposes of the
Attorneys
Act
,
and therefore also a “
legal
adviser
”
for purposes of section 73(2) of the
Criminal
Procedure Act
,
the fact would remain that in terms of the provisions of section
73(2) of that Act he nevertheless did not have the right of
appearance in these criminal proceedings. To put it another
way, even if it could be said that the provision in section 41(1)
of
the
Attorneys
Act
had left Mr Zietsman’s status as an admitted and enrolled
attorney, and his right of appearance in general as part thereof
[26]
,
intact and in existence, he would nevertheless by virtue of the
provisions of section 73(2) of the
Criminal
Procedure Act
not have been entitled to appear in criminal proceedings.
[26.]
It
follows that I am of the view that Mr Zietsman’s appearance on
behalf of the accused did indeed constitute an irregularity
in those
proceedings.
[27.]
There is
a long line of cases in which it was held that the lack of
authorisation to appear on behalf of accused persons in criminal
proceedings constitutes a fatal irregularity, regardless of the fact
that the representatives concerned had the required academic
qualifications, and that such an irregularity necessitated the
rescission of those proceedings without regard to the merits
[27]
.
[28.]
In
S
v Chukwu and Another
[28]
,
however, the appearance of a candidate attorney without the right of
appearance in terms of section 8 of the
Attorneys
Act
,
was apparently found not to have constituted a fatal irregularity,
because
Poswa
J
went on to consider the merits and concluded that the accused in that
matter had not been prejudiced. The provisions of section
73(2)
of the
Criminal
Procedure Act
do not appear to have been considered. The
Chukwu
case is in any event distinguishable from the present matter on the
facts, because in the
Chukwu
case the criminal proceedings had taken place in a Magistrates’
Court, and not in a Regional Court
[29]
.
The provisions of section 8(1) of the
Attorneys
Act
as regards the rights of a candidate attorney to appear in
Magistrates’ Court are permissive (“
shall
be entitled to appear
”),
as opposed to the prohibitive wording in the proviso to that section
as regards the right to appear in Regional Courts
(“
shall
not be entitled to appear
”).
The candidate attorney in the
Chukwu
matter had therefore not been prohibited from appearing. He had
simply not been authorised to appear. It is not necessary
to
express an opinion on whether Poswa J was correct in not approaching
that matter on the basis that the unauthorised appearance
of a
candidate attorney in a Magistrates’ Court also constituted an
irregularity which
per
se
vitiated those proceedings. It is also in the circumstances
unnecessary to express an opinion on whether the approach adopted
by
Poswa J,
viz
to consider the merits and the question whether the accused had been
prejudiced, was in accordance with the approach enunciated
in
S
v Mkhise
;
S v
Mosia
;
S v
Jones
;
S v Le
Roux
[30]
.
[29.]
In my
view there is no distinction between the position of a candidate
attorney who does not in terms of section 8(1) of the Attorneys
Act
have the right to appear in the Regional Court, on the one hand, and
any legal adviser who in terms of section 73(2) of the
Criminal
Procedure Act does not have the right of appearance in criminal
proceedings, on the other.
[30.]
Mr
Addinall relied on the judgment in
S
v Heji and Others
[31]
in submitting that Mr Zietsman’s appearance in the criminal
proceedings without a fidelity fund certificate did not result
in an
unfair trial and did not constitute a “
gross
”
irregularity which would call for the setting aside of those
proceedings without having regard to the merits. He also
pointed out that Mr Zietsman’s new attorney could have
witnesses recalled for further cross-examination.
[31.]
The
Heji
case also concerned an attorney who had appeared in criminal
proceedings while he had no valid fidelity fund certificate.
The prohibition in section 41(1) of the
Attorneys
Act
was considered in the context of the penal sanction provided in
section 83(10) of that Act for a contravention of that prohibition.
It was found that the existence of the sanction did not necessarily
imply the invalidity of the proceedings concerned and that
“
the
possession of a fidelity fund certificate ha(d) no relevant
connection with the qualifications or competence of the attorney
concerned
”
to appear in those criminal proceedings, and the Regional Magistrate
was ordered to proceed with the trial.
[32.]
There is
no indication that the Court in the
Heji
case considered the prohibition on section 41(1) in the
Attorneys
Act
in the context of the provisions of section 73(2) of the
Criminal
Procedure Act
.
[33.]
The
Heji
judgment was followed in
Venter
and Another v S
[32]
,
where the facts were for all purposes similar to those in the
Heji
case.
Again no reference was made to the provisions of section 73(2) of the
Criminal
Procedure Act
.
[34.]
I find
myself in respectful disagreement with the
Heji
and
Venter
judgments. In my view it is a jurisdictional requirement for
the right to appear in criminal proceedings that the legal adviser
concerned must not by any other law be prohibited from appearing in
those proceedings
[33]
.
[35.]
There is
no indication that the source of the prohibition envisaged in section
73(2) of the
Criminal
Procedure Act
,
or even the reason therefor, would in any way be relevant.
[36.]
To permit
an attorney who is prohibited from appearing on behalf of a client
“
for
… own account
”
to do precisely that, would in my view indeed frustrate the very
purpose of the requirement of a fidelity fund certificate.
It
would expose that client to the risks that the requirement of a
fidelity fund certificate, and the concomitant prohibition in
section
41(1) of the
Attorneys
Act
,
intend to avoid. There is, in this sense, indeed a rational
connection between the requirement that the legal adviser in
criminal
proceedings not be prohibited from appearing, on the one hand, and
the prohibition in section 41(1) of the
Attorneys
Act
from appearing,
inter
alia
in such proceedings, on behalf of a client while not in possession of
a fidelity fund certificate.
[37.]
Mr
Zietsman was, because of the provisions of section 73(2) of the
Criminal
Procedure Act
,
read with those of section 41(1) of the
Attorneys
Act
,
in my view not “
qualified
”
to appear in the criminal proceedings; not in the sense that he did
not have the necessary academic qualifications, or even
experience,
but because he had no right to appear in criminal proceedings as long
as he was prohibited from doing so
[34]
.
[38.]
Although
made in the context of different facts the remark of Kumleben AJA (as
he then was) at 874G of the judgment in
S
v Mkhise
;
S v
Mosia
;
S v
Jones
;
S v Le
Roux
that “
authority
to practise … is essential to the proper administration of
justice in a criminal case
”
should in my view find equal application in the present matter.
Mr Zietsman must be assumed to have deliberately acted
in
contravention of the provisions of section 41(1) of the
Attorneys
Act
,
which could be argued to cast a shadow of doubt over his “
honesty
and integrity
”
[35]
.
His conduct constituted “
professional
misconduct
”
[36]
.
[39.]
The lack
of authority in terms of the
Criminal
Procedure Act
to appear in criminal proceedings would in my view constitute a fatal
irregularity, regardless of what the cause of the absence
of such
authorisation was.
[40.]
In
S
v Dlamini en ‘n Ander
[37]
the fact of the attorney’s temporary suspension and his
resulting lack of authority to appear were held to have constituted
an irregularity which in itself necessitated the rescission of the
proceedings.
[41.]
In
S
v Van Der Sandt
[38]
the temporary suspension of an attorney was held to have constituted
a prohibition against him appearing in the criminal proceedings
and
it was held that his appearance had amounted to the type of
irregularity which had
per
se
necessitated the rescission of the criminal proceedings.
[42.]
Section
83(4) of the
Attorneys
Act
,
read with section 22 and section 83(7) of that Act, makes it clear
that an attorney who has been suspended from practising “
shall
not
”
continue to practise, which means that the attorney in the
Van
Der Sandt
matter was in fact in effect, like Mr Zietsman, prohibited from
appearing in those proceedings. The Court in the
Van
Der Sandt
matter therefore held, in my respectful view correctly, that the
attorney had lost his right of appearance as envisaged in,
inter
alia
,
section 73(2) of the
Criminal
Procedure Act.
[43.]
In my
view our justice system will fall into disrepute, and public trust in
it will be undermined, if the attitude is to be adopted
that, even
though an attorney has seen fit to blatantly disregard a statutory
prohibition, it could be argued that no prejudiced
has been suffered.
[44.]
Mr
Zietsman had in all probability misled both his client and the
Regional Magistrate into believing that he was entitled to act
as an
attorney
[39]
. In doing
so he had been dishonest.
[45.]
As
regards the right to representation by a “
legal
practitioner
”
as envisaged in section 35(3)(f) of the
Constitution
,
I think that it would presuppose that such practitioner must actually
be entitled to represent the accused in a court of law and
that he or
she should not in terms of any law be prohibited from doing so.
[46.]
In my
view this irregularity is “
of
so fundamental and serious a nature that the proper administration of
justice and the dictates of public policy require it to
be regarded
as fatal to the proceedings in which it occurred
”
[40]
and “
when
considerations of public interest are paramount, hardship in a
particular case, should it arise, is to be regretted but cannot
be
avoided
”
[41]
.
[47.]
It
follows that I am of view that the present criminal proceedings
should be set aside.
[48.]
The next
question is whether this Court should then remit the matter to the
Regional Court and order that the accused be tried
de
novo
.
This is the order initially suggested by Ms Makhaga.
[49.]
Although
such an order is quite common in cases where proceedings are set
aside, it has often been held to be undesirable.
In
S
v La Kay
[42]
it was held that the provisions of section 324 of the
Criminal
Procedure Act
[43]
provided the prosecuting authority with a discretion to decide
whether to charge an accused again and that an order that an accused
be tried
de
novo
would interfere with that discretion
[44]
.
[50.]
In my
view this approach should find equal application in cases like the
present, where the criminal proceedings have not been finalised
and
there has therefore not been a conviction and a sentence. There
may well be cases where the Director of Public Prosecutions
may
decide not to reinstitute the charge, for instance where a
complainant no longer wishes it.
[51.]
If it is
decided to prosecute the accused again the trial should, in view of
the fact that the present Regional Magistrate has heard
evidence on
the merits, be conducted before a different Regional Magistrate
[45]
.
This would be consistent with the proviso to section 324 of the
Criminal
Procedure Act
in
cases where a conviction and sentence are set aside. Ms Makhaga
also made the valid point that the accused would, in the
event that
he is again faced with the same charges, be entitled to reconsider
his plea and his instructions to his legal representative,
and that a
trial before the same Regional Magistrate would compromise that
right. The prosecution may also be prejudiced,
because the
Regional Magistrate may already have formed an unfavourable opinion
regarding the demeanour of a prosecution witness.
The accused
in this matter has apparently for some reason expressed the wish that
the proceedings in a trial
de
novo
be
conducted before the same Regional Magistrate. Acceding to this
request would however, quite apart from considerations
like those
already referred to, for obvious reasons create a very dangerous
precedent.
[52.]
In the
premises the following orders are made:
1
THE
PROCEEDINGS AGAINST THE ACCUSED, DIEDERICK JOHANNES VAN EEDEN, IN
CASE NUMBER 07/2016 IN THE REGIONAL COURT HELD AT KATHU ARE
SET
ASIDE.
2
SHOULD
THE CRIMINAL PROCEEDINGS AGAINST THE ACCUSED BE REINSTITUTED THE
TRIAL IS TO BE CONDUCTED BEFORE A DIFFERENT PRESIDING OFFICER.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________________
L
P TLALETSI
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For the
accused:
ADV DC JANKOWITZ
(Instructed by
DGF
Attorneys Inc.
)
For the Director of Public
Prosecutions:
ADV M MAKHAGA
For the Law Society of the Cape
of Good Hope:
MR S M ADDINALL
[1]
53 of 1979
[2]
Wahlhaus v Additional Magistrate, Johannesburg
1959 (3) SA 113
(A) at 120B; See also
Motsepe & another v
Phaala
[2006] JOL 16719
(T) at pp 16 to 17
[3]
(18243/2003)
[2008] ZAWCHC 306
(27 November 2008)
[4]
At p25
[5]
1988 (2) SA 868
(A) at 871G – 872A
[6]
My emphasis.
[7]
[2005] JOL 13805
(W) at pp 3 - 4
[8]
My emphasis.
[9]
51 of 1977
[10]
66 of 1995
[11]
2000 (1) SA 390
(TPD) at 395 A
[12]
See Magistrates’Court Rule 52(1)(a)
[13]
32 of 1944
[14]
Which should now be read as defined in the
Superior
Courts Act, 10 of 2013
.
[15]
My emphasis
[16]
Subject to the provision in subsection (1) pertaining to
appearance by candidate attorneys in the Regional Court.
[17]
As envisaged in section 73(2) of the
Criminal Procedure
Act
.
[18]
Section 41(1) of the
Attorneys Act
provides as
follows:
“
A practitioner
shall not practise or act as a
practitioner
of his or her own account or in partnership
unless he or she is in possession of a fidelity fund
certificate.”
(My emphasis)
[19]
See also
Law Society of the
Northern Provinces and another v Viljoen and others
[2011] 3 All SA 133
(SCA) Also reported as
2011 (2) SA 327
(SCA)
para [10]
[20]
Compare
R v Zeiss
1961 (1) SA 610
(T) at 613D
[21]
Or in partnership.
[22]
Compare
Marx v Stalcor and others
;
Glaubitz v Preston
Anderson CC
[2001] 12 BLLR 1338
(LC) para [58]
[23]
S v Heji and Others
2007 (2) SACR 527
(C) para
[14]
[24]
Compare
Registrar General of Elections v Combined Harare
Residents Association & another
[2002] JOL 9489
(ZH) p 5
[25]
Compare
Marx v Stalcor and others
,
supra
, footnote 22
[26]
In
ABSA Bank v Snyman
2015 (4) SA 329
(SCA)
remarked that only “
an admitted advocate or attorney
with
a right of appearance
” (my emphasis) would be
entitled to represent a party in the Supreme Court of Appeal, which
would suggest that the
mere fact of being an admitted advocate or
attorney would not be decisive. A right of appearance would
also be required.
[27]
See
S v Khan
1993 (2) SACR 118
(N);
S v Gwantshu
and Another
1995 (2) SACR 384
(E);
S v La Kay
1998 (1)
SACR 91
(C);
S v Nkosi en Andere
2000 (1) SACR 592
(T);
S
v Stevens en ‘n Ander
2003 (2) SACR 95
(T);
S v Tume
and Others
(188/2004)
[2006] ZANCHC 12
(24 February 2006);
S
v Beleng
(An unreported judgment on review in this Division
under case number 14/11);
S v Nghondzweni
2013 (1) SACR 272
(FB) and
S v Swapi and Others
(14/14, RCZ 300/13, 6/2014)
[2015] ZAECBHC 23 (1 September 2015)
[28]
2010 (2) SACR 29 (GNP)
[29]
In all the cases referred to in footnote 26 above the
criminal proceedings had taken place in Regional Courts.
[30]
See para [10] and footnote 5 above.
[31]
2007 (2) SACR 527 (C)
[32]
An unreported judgment on appeal in the Western Cape Division
of the High Court on 2 May 2014, under case number
A121/13
[33]
Compare
S v Qmotsho
[2007] JOL 19092
(T) para’s
[7] and [8]
[34]
Compare
S v Gwantshu and Another
,
supra
, at
385f – g and 386b;
S v Nghondzweni
,
supra
, at
274b and
S v Stevens en ‘n Ander
,
supra
, at 97i
- j
[35]
Compare
S v Mkhise
;
S v Mosia
;
S v Jones
;
S v Le Roux
,
supra
, at 874E
[36]
Law Society of the Northern
Provinces and another v Viljoen and others
,
footnote 19 above
[37]
2008 (2) SACR 202 (T)
[38]
2016 JDR 0323 (GJ) ( [2016] JOL 36192 (GJ))
[39]
Compare
S v Xameni
(D 166/2013)
[2014] ZAWCHC 36
(17 March 2014), para [8]
[40]
S v Mkhise
;
S v Mosia
;
S v Jones
;
S v Le Roux
,
supra
, at
872G
[41]
Ibid
, at 875C
[42]
See footnote 18 above
[43]
The relevant provisions of section 324 of the
Criminal
Procedure Act
, which are in terms of section 313 of that Act
applicable to review proceedings, read as follows:
“
Whenever
a conviction and sentence are set aside by the Court of Appeal on
the ground-
(a)
…
; or
(b)
…
; or
(c)
that there
has been any other technical irregularity or defect in the
procedure,
proceedings in respect of the same offence to which the
conviction and sentence referred
may
again be
instituted either on the original charge, should it be amended where
necessary, or upon any other charge as if the accused
had not
previously been arraigned, tried and convicted:
Provided
that no judge or assessor before whom the original trial took place
shall take part in such proceedings
.”
(My
emphasis)
[44]
See also
S v Dlamini en ‘n Ander
,
supra
, para
[13], and the orders in cases like
S v Masithela
1986 (3)
SA402 (O) at 404i;
S v Mkhise
;
S v Mosia
;
S v
Jones
;
S v Le Roux
,
supra
, at 875H;
S v Nkosi
en Andere
,
supra
, at 595h – i;
S v Stevens en ‘n
Ander
,
supra
, at 97h – i and 98c;
S v Swapi and
Others
,
supra
, para [11]
[45]
See
S v Khan
,
supra
, at 120d - e