About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 112
|
|
S v Sibeko (R82/2017) [2017] ZAFSHC 112 (30 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No. : R82/2017
THE
STATE
versus
JABULANI
PETER SIBEKO
CORAM:
DAFFUE,
J
et
SNELLENBURG, AJ
JUDGMENT
BY:
SNELLENBURG,
AJ
DELIVERED
ON:
30
JUNE 2017
[1]
Mr Jabulani Peter Sibeko, a 35 year old male, is arraigned in the
Regional Court, Reitz on the counts of rape and aggravated
robbery.
When the trial commenced during July 2014 the accused was represented
by Adv Mosebetsi Richard Mofokeng. The accused pleaded
not guilty to
both counts. The state presented the evidence of the complainant and
one other witness before the matter was postponed
to enable the state
to procure the attendance of further witnesses it intends to call.
The matter was subsequently adjourned on
various occasions due to
different reasons. The matter is part heard.
[2]
Before the matter could proceed the Magistrates’ Court was
informed that Mr Mofokeng was struck of the roll of advocates
by
virtue of an order by the Gauteng Division of the High Court of South
Africa, Pretoria on 26 July 2016. It has also become general
knowledge that Mr Mofokeng was never properly qualified to represent
anyone, let alone accused persons in criminal matters. All
matters
where Mr Mofokeng appeared on behalf of accused persons were
subsequently struck off the roll pending the outcome on review
of the
matter between
F
Mtshali and Another v The State
,
case
number:
4031/2015
which has in the meantime been finalised in this Division. In that
matter the accused had been convicted and sentenced and the
court of
review per Jordaan, ADJP (as he then was)
et
Daffue, J set aside the conviction and sentence as result of a
failure of justice.
[3]
The presiding Magistrate consequently requests a special review of
this matter in terms of the provisions of s 304(4). It also
appears
from the request for special review that the Magistrate has been
unable to reconstruct the record of the part heard case.
The
complainant’s evidence in chief is amiss and the Magistrate has
not been able to reconstruct the record in that regard.
The accused’s
representative may no longer assist in the task.
[4]
Several matters which are part heard where Mr Mofokeng appeared on
behalf of accused persons have subsequently been referred
for special
review. At date of this judgment I am aware of at least two other
special reviews on similar facts which pended before
different judges
in this division. The only difference is that in this matter the
Magistrate is also aware that the record of proceedings
cannot be
properly reconstructed.
[5]
In the special review of
The
State v V Sibeko and Others, case R84/2017
[
Sibeko
]
Hefer, AJ on behalf of the court dealt fully with the court’s
power to review a matter where the proceedings have not reached
the
stage of conviction and/or sentence. After reviewing the applicable
provisions and legal precedent, Hefer, AJ concluded that
although the
matter could not be reviewed in terms of either section 304(4) or
304A, due to the fact the jurisdictional requirements
of the said
sections are not satisfied
[1]
,
the High Court retains the inherent power by virtue of s 173 of the
Constitution to review proceedings of this nature where the
matter is
part-heard.
[2]
That court also
relied on the provisions of
s 22
of the
Superior Courts Act, 10 of
2013
which includes as ground for review of the proceedings of the
Magistrates’ Court, gross irregularity in the proceedings.
[3]
I agree.
[6]
This court’s inherent power to prevent a material failure of
justice in uncompleted proceedings cannot be open to debate.
In
similar vein a magistrate is both obligated to prevent the
anticipated manifestation of a failure of justice,
“
...any
presiding officer who allowed such a situation [where a substantial
injustice was anticipated by the presiding Magistrate]
to persist,
was irresponsible in the extreme and acted in conflict with the oath
of office he or she took on appointment.
”
(see
S
v Du Toit and Others
(2)
2005 (2) SACR 411
(T)),
and
should also be at liberty to immediately call in aid the High Court’s
powers of review to rectify a failure of justice
in proceedings the
moment he/she becomes aware of it.
“
Dit is 'n
saak van eminente openbare belang dat 'n landdros, wat van mening is
dat daar iets met 'n verhoor voor hom verkeerd geloop
het die
vrymoedigheid sal hê om sonder die nakoming van 'n formele en
soms swaarwigtige prosedure, hom onmiddellik op die
hersieningsbevoegdheid van die Hooggeregshof sal kan beroep sodat wat
verkeerd gegaan het herstel kan word en die verhoor sy normale
voortgang kan hê. In sulke gevalle sal hierdie Hof steeds doen
wat immer moontlik is om die goeie gang van die regspleging
te
bevorder.
”
See
Die
Staat v Sekakala
1962
(2) SA 105
(GW) at 107G-H.
[7]
Equally applicable to matters of this ilk is the observation of
Ackermann,
J in
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC) para [19]:
“
If it is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these
all important
rights.
”
[8]
The requirements for admission as an advocate in terms of the
Admission of Advocates Act, 74 of 1964
, include that subject to the
provisions of any other law, any division shall admit to practice and
authorize to be enrolled as
an advocate any person who upon
application made by him/her satisfies the court:
8.1 that he/she is over
the age of twenty-one years and is a fit and proper person to be so
admitted and authorized;
8.2 that he/she is duly
qualified;
8.3 that he/she is a
South African citizen or that he/she has been lawfully admitted to
the Republic for permanent residence therein
and is ordinarily
resident in the Republic;
8.4 in the case of any
person who has at any time been admitted to practise as an attorney
in any court in the Republic or elsewhere,
that his/her name has been
removed from the roll of attorneys on his/her own application.
[9]
The basis for the application to have Mr Mofokeng struck of the roll
of advocates was the fact that Mr Mofokeng did not have
the required
academic qualifications to be admitted as an advocate in the High
Court of South Africa in the first place. The background
of those
proceedings are dealt with by Hefer, AJ in
Sibeko
.
Suffice it to say that Mr Mofokeng’s admission as advocate is
shrouded in mystery. He could never have been admitted as
advocate as
he did not satisfy the requirements to be admitted as such. That
those proceedings also evidenced doubt regarding the
authenticity of
the court order admitting Mr Mofokeng, is apparent from para 1 of the
court order, namely “
The
order of Van der Byl (AJ) and Ebersohn (AJ) purportedly made on 3
August 2010 in case number 34133A/2010 admitting the respondent
as an
advocate of the High Court (a copy of which is attached hereto as
annexure “X”) is hereby rescinded and set aside.
”
[10]
It was the Pretoria Society of Advocates’ case that the
Baccalaureus Legum Degree which was purportedly conferred on
Mr
Mofokeng was not authentic. It appears that the official records of
the relevant University show that Mr Mofokeng in fact never
completed
a number of subjects which were a prerequisite before he could
satisfy the requirements for the said degree to be conferred
on him
and the signatures of the Pro Vice Chancellor and Vice Principal on
the degree appeared not to be authentic.
[11]
Mr Mofokeng misrepresented to the accused, the court and the public
at large that he was a duly admitted advocate who had satisfied
all
the requirements to be so admitted. Inherent in the misrepresentation
to the accused was that he, Mr Mofokeng, was duly qualified
to
represent the accused during his trial as legal representative with
the requisite legal training and qualifications. The
misrepresentation
strikes at the very heart of the accused’s
right to a fair trial of which legal representation is a corner
stone. This right
also entails the right to effective legal
representation.
[12]
I have no doubt that the accused’s constitutionally enshrined
rights to a fair trial and legal representation have been
infringed
and that Mr Mofokeng’s conduct has already caused a grave
failure of justice. This should be remedied without further
delay. It
would be manifestly unfair to allow the trial to continue, regardless
of what has been described as a ‘gross irregularity’
in
Sibeko
supra
,
where the outcome is already foredoomed. To allow the proceedings to
continue will undermine the interests of justice.
[13]
In addition to this the record of proceedings is already incomplete
whilst the prosecution is still presenting its case.
[14]
The proceedings therefore stand to be set aside. The matter needs to
be remitted so that it can commence
de
novo
before another presiding officer. The accused will obviously have the
right to legal representation when the matter commences
de
novo
.
[15]
I accordingly make the following order:
1.
The
proceedings in the Regional Court, Reitz in case SH03/14 are set
aside.
2.
The matter
is remitted to the Regional Court, Reitz to commence de novo before
another presiding officer.
____________________
N.
SNELLENBURG, AJ
I
concur.
_____________
J.P.
DAFFUE, J
[1]
Section 304(4)
is
only applicable where the Magistrate has imposed a sentence and
section 304A
applies where the accused has been convicted but not yet sentenced.
[2]
See
S
v Taylor
2006 (1)
SACR 51
(CPD)
.
[3]
Ibid.