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[2017] ZAFSHC 113
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S v Sibeko and Others (R84/2017) [2017] ZAFSHC 113; 2017 (2) SACR 457 (FB) (29 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: R84/2017
In
the matter between:
THE
STATE
Applicant
and
V SIBEKO AND THREE
OTHERS
CORAM:
VAN
ZYL, J & HEFER, AJ
JUDGMENT
BY:
HEFER,
AJ
DELIVERED
ON:
29
JUNE 2017
[1]
The accused are charged with theft of stock in terms of Act 57 of
1959. The trial commenced during March 2014 in the Regional
Court
held at Bethlehem, Free State Province. During the trial,
thirteen witnesses testified. Numerous documents were also
handed in
as part of their testimony.
[2]
Advocate Mofokeng represented the accused during the trial. During
the last appearance on 30 January 2015, Mr Mofokeng was however
absent. The prosecutor then informed the Court that he has received
information to the effect that Mr Mofokeng was involved in
an
application of the Pretoria Bar Society to have Mr Mofokeng struck
from the roll of advocates. According to this information,
Mr
Mofokeng did not have the necessary legal qualifications to appear
and practise as a legal representative, and more in particular,
an
advocate. At that stage an interim interdict was apparently granted,
preventing Mr Mofokeng to appear as a legal representative
in Court.
Mr Mofokeng was therefore barred from appearing in Court.
[3]
The presiding officer’s query is as follows:
“
In view of the fact that,
advocate Mofokeng was removed from the roll of practising advocates
and it appears, he was not from the
onset allowed to have practised
law as he is not qualified to do so. I humbly request the honourable
reviewing judges for guidance.”
[4]
Upon investigation it was ascertained that in case number 17840/2015
in the Gauteng Division of the High Court, Pretoria, the
Pretoria
Society of Advocates sought an order for the removal of Mr Mofokeng
as an advocate from the roll of advocates. It appears
that the basis
for the application was indeed to the effect that Mr Mofokeng did not
have the necessary academic qualifications
to be admitted as an
advocate in the High Court of South Africa.
[5]
In the Pretoria Society of Advocates’ replying affidavit
amongst others, the following were stated:
“
During the consultation I
was advised that the document which purports to be a certified copy
of a Baccalaureus Legum Degree, issued
to the respondent appears to
be suspect in the following respects:
5.1 The font used to indicate the
degree and the name of the respondent is not a font that was ever
used by the University of Johannesburg.
5.2 The signature ostensibly of the
Pro Vice Chancellor and Vice Principal appears not to be authentic.
6. During the aforestated
consultation, I was also provided with a complete record of
respondent’s academic curriculum at
the University of
Johannesburg. A copy of such document is attached marked annexure
“BH1”. It appears from annexure
“BH1” that
there are a number of subjects which were not completed by the
respondent which serves as proof that the
Baccalaureus Legum Degree
could never have been conferred upon respondent.
7. The conclusion Mr Van Zyl
arrived at is that the document, filed by the respondent, paginated
page 142 to the opposing affidavit
is not an authentic document
issued by the University of Johannesburg, formally Rand Afrikaans
University. Mr Van Zyl further was
of the view that the document
contradicts the academic record maintained by the University for the
respondent.”
[6]
On 26 July 2016 the Pretoria High Court ordered that Mr Mofokeng be
removed from the roll of advocates. The presiding judge
did not
deliver a full judgment, but merely granted the order referred to. Of
importance is that it appears that the basis for
such removal from
the roll of advocates was that Mr Mofokeng was indeed not duly
qualified to be admitted as an advocate in the
High Court of South
Africa.
[7]
The letter by the Presiding Officer refers to section 304(4) of Act
51 of 1977. Section 304(4) is however only applicable where
a
Magistrate has already imposed a sentence. In terms of this section,
if it is brought to the notice of a Court or a Judge that
such
sentence was not in accordance with justice, such Court or Judge may
consider such sentence on review.
[8]
Section 304A of the Criminal Procedure Act is applicable if a
Magistrate or a Regional Magistrate refers a matter to the High
Court
for review after the accused had been convicted, but before sentence.
Section 304(4) as well as 304A are therefore not applicable
in the
present matter. The trial has not yet been concluded and the accused
have not yet been convicted nor sentenced.
[9]
With reference to section 304(4) of the Criminal Procedure Act, the
following was held in
S
v Ralo
(2012) ZAECGHC 7 (CA & R 39/2012):
“
On a plain reading of the
section it only provides for a review of the proceedings at the
instance of a magistrate after conviction
and sentence of an accused
person. This does not, however, detract from the Court’s
inherent jurisdiction to interfere in
exceptional circumstances at
any stage of uncompleted proceedings where a grave injustice may
otherwise arise.”
[10]
In
S
v Nhlapo
2016 (1) SACR 489
(GP) Jansen J, however, said the following in
paragraph 15:
“
In Ralo … it was
held, incorrectly, in the Court’s opinion, that proceedings
must reach the conviction stage before
a matter may be reviewed by a
Court.”
[11]
In
DIE
STAAT v SEKAKALA
1962 (2) SA 105
(GWPA) the following was said on review at p107 F-G:
“
Dit is ʼn
saak van imminente openbare belang dat ʼn landdros, wat van
mening is dat daar iets met ʼn verhoor voor hom
verkeerd geloop
het die vrymoedigheid sal hê om sonder die nakoming van ʼn
formele en soms swaarwigtige prosedure, hom
onmiddellik op die
hersienings-bevoegdheid van die Hooggeregshof sal kan beroep sodat
wat verkeerd gegaan het herstel kan word
en die verhoor sy normale
voortgang kan hê.”
[12]
The Court then also referred to the High Courts’ inherent power
to review proceedings of the Magistrate’s Court.
[13]
In
S v Taylor
2006 (1) SACR 51
(CPD), the Court also
referred to the inherent power of the High Courts as contained in the
Supreme Court Act, 59 of 1959.
More importantly, Yekiso J also
referred to section 173 of the Constitution of South Africa which
reads as follows:
“
The Constitutional Court,
Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process,
and to develop the common
law, taking into account the interest of justice.”
[14]
It was held that the approach suggested in section 173, is indeed
comprehensive for it allows the exercise of the Court’s
inherent power, taking into account the interest of justice, without
being subjected to any form of statutory constraint.
[15]
I therefore find that the Magistrate was entitled to refer the matter
for review at this stage and that this Court does have
the power to
review the proceedings before the conclusion thereof.
[16]
Currently, the grounds for review of proceedings of the Magistrates’
Courts by the High Court are contained in
section 22
of the
Superior
Courts Act, 10 of 2013
and includes amongst others, gross
irregularity during the proceedings.
[17]
Dealing with the High Court’s power to review the proceedings
of the lower Courts, Herbstein & Van Winsen with reference
to
authorities, states in “
The
Civil Practice of the High Courts of South Africa, 5
th
Edition at p. 1275”,
that
once it is proved that a gross irregularity has occurred during the
proceedings, it is not necessary to establish that it caused
prejudice to the Applicant, being the accused. It is sufficient that
the irregularity was such as was likely to prejudice the accused.
[18]
The provisions of section 35(3)(f) of the Constitution of South
Africa , Act 108 of 1996 is of further importance. In terms
thereof,
an accused who is brought before Court is entitled to a fair trial,
which includes such accused’s right to
legal representation by
a legal representative of his own choice. This right indeed forms
part of the Bill of Rights as contained
in Chapter 2 of the
Constitution.
[19]
A legal representative is a person who obtained the necessary
qualifications to appear in a Court of Law and to practise as
such.
These qualifications will include in the first instance, the degree
which was bestowed on such a person at one of the institutions
recognised and referred to in the Attorneys Act, 53 of 1979 as
well as
Admission of Advocates Act, 74 of 1964
. A person may not be
admitted as an attorney or an advocate without obtaining such a
degree. If indeed a person is admitted
as an advocate in
particular, without obtaining the relevant degree, such admission is
to be set aside. It is on that basis
also that Mr Mofokeng was indeed
removed by the Pretoria High Court from the roll of advocates.
[20]
When an accused is represented by a person who, unbeknown to such
accused, does not have the necessary qualifications to practise
as
legal practitioner, such an accused’s right as contained in
section 35(3) of the Constitution has indeed been infringed.
Such an
infringement on an accused’s rights constitutes a gross
irregularity as referred to by the author Van Winsen (
supra).
This
irregularity was likely to prejudice the accused.
[21]
I therefore find that by reason of the gross irregularity referred
to, the proceedings up to date is to be set aside.
The
presiding officer should therefore also grant the accused the
opportunity to obtain the services of another legal representative.
The trial is then to start
de
novo.
[22]
The matter can however not proceed before the presiding officer who
dealt with the matter thus far. Such presiding officer
may already
have made some credibility findings, based on the evidence presented
so far. If evidence is now presented for the second
time, these
findings may influence such presiding officer which will be improper.
In
view of the aforesaid, the following order is made:
ORDER:
1.
The
proceedings in the Regional Court held at Harrismith in case number
HSH30/2013 is set aside.
2.
The matter
is referred back to the Regional Court at Harrismith to
commence
de
novo
before another presiding officer.
___________________________
J.J.F.
HEFER, AJ
I
concur.
___________________________
C
VAN ZYL, J