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[2017] ZANCHC 6
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Maringa v Director of Public Prosecutions of the Northern Cape (1104/16) [2017] ZANCHC 6; 2017 (1) SACR 561 (NCK) (10 February 2017)
HIG
H
COURT
OF SOUTH
AFRICA
[NORTHERN
CAPE
HIGH
COURT,
KIMBERLEY]
Case
No:
1104/
16
Heard:
28/ 10/2016
Del
i
vered
:
10
/02/
2017
I
n
the matter between:
JACQU
ES
BENJAM
IN
MARINGA
Applicant
And
THE
DIRECTOR
OF
PUBLIC PROSECUTIONS
OF
Respondent
TH
E
NORTH
ERN
CAPE
Coram:
Matlapeng AJ
JUDGMENT
Matlapeng
AJ
1.
The applicant is Mr Jacques
Benjamin
Elester Maringa who
is currently
a
sentenced
prisoner.
The
respondent
is
the
Director
of
the
Public
Prosecutions
of
the
Northern
Cape.
I
nitially
the
respondent
filed
its
notice of intention to oppose this
applicatio
n
.
This
was as
a
r
esult
of a
certain
ground
of
relief
that
the
applicant
sought.
Upon the
applicant
withdrawing such a ground, the
respondent also withdrw
its
opposition and the matter is now unopposed.
2.
After
the
matter was
heard, I requested
Mr Eillert for the
applicant and Mr
Cloete
from
the
respondent's
office
to
provide
me
with heads
of argument
and
they
have
kindly
done
that.
I am
indebted
to
them for their assistance.
3.
The
relief
applied
for
by
the
applicant
is
that
a
special
entry
be
noted
in
terms
of s
317(2)
of
the
Criminal
Procedure Act,
51
of
1
977
in respect
of
proceedings
heard under
Case
No.
KS594/2004.
4.
Section 3
1
7
(
1
) and (2)
of the Criminal Procedure Act provides:
If
an accused
is
of the
view
that any of the proceedings
in connection with or
during
his
or
her
trial
before
a
High
Court
are
irregular
or
not
according
to
law, he or she may, either
during
his or her
trial
or
within a
period
of
14 days after
his
or her conviction
or
within such extended period
as
may upon
application
(in
this
section referred to
as an application
for
condonation)
on
good
cause
be
allowed,
apply
for
a special
entry
to
be
made
on
the
record
(in
this
section
referred
to
as an
application
for
a
special
entry)
stating
in
what
respect
the
proceedings
are
alleged
to
be
irregular
or
not
according
to
law,
and such a special entry shall, upon
such application for a special entry, be made
unless
the
court
to
which or
the judge
to
whom
the application for
a special
entry
is
made is
of
the opinion
that
the application is
not
made
bona
fide
or
that it
is frivolous
or
absurd
or
that
the granting
of the application
would be an abuse of the
process of the court.
Save
as
hereinafter
provided,
an
application
for
condonation
or
for
a special
entry shall
be made
to the
judge
who presided
at the trial or
,
if
he
is
not
available,
or
,
if
in
the
case
of
a
conviction
before
a
circuit
court
the said
court
is
not
sitting
,
to any
other judge of
the provincial
or local
division of
which
that
judge
was a
member
when
he so preside
d
.
5.
I
n
order
to
understand
the
nature
of
the
relief
sought,
the
following background
facts
are
provided.
During
November
2004,
the
applicant
together with
his
co-accused
were charged and tried for robbery,
murder, unlawful
possession
of firearms
and
ammunition
in
the Circuit Court held at Upington
.
At the conclusion
of the trial, the applicant was
found
guilty and sentenced as follows:
1
5
Years
imprisonment
in
respect
of robbery; life
imprisonment in
respect
of
murder
and
for
possession
of fire arm and ammunition
the
counts
were
taken
as
one
for purposes of sentence and he was given three years imprisonment.
6.
During the trial the
applicant
was
represented
by
an
attorney
from
Pretoria,
Mr
R.J
Van
Der
Merwe,
who has
since
been
struck
from
the
roll
of
the
attorneys.
After
conviction
and
sentence,
the
applicant
instructed the said attorney
to apply for
leave
to appeal which was
duly
done
but
leave
was
refused
by
the
court.
7.
The
applicant
began
to
serve
his
sentence
and
during
October
2015,
he
requested
his
mother to obtain
the
services of an attorney
with
the
request
to assist
him
to
be
placed under correctional
supervision
or to be
released
on
parole.
It
was
during
consultation
with this
new
attorney
that
it
came
to the
fore
that
the
applicant's
previous attorney
Van Der Merwe, appeared in the High
Court whilst not in possession of
a
certificate
authorising
him
to
do
so
in
terms
of
s
4(
2)
of
Right
of
Appearance in
Courts
Act,
62
of
1
995.
This
was
as
a
result
of
the investigations
instituted
by
the
new
attorney who
made
inquiries
at
the
Law Society of Northern Provinces, the Registrar of the High Court,
Gauteng Division,
the
senior
Registrar
of
the
High
Court,
Northern
Cape. He received the results of these
enquiries on 09 May 2016.
8.
The Judge who
presided over
the
trial is
no
longer
available to entertain
this
matter.
However
s317
(2)
covers
this
eventuality in that any Judge
of
the
Provincial
Division
of
which
the
unavailable
Judge
was
a
member
when he
so
presided,
may
hear
the application.
I
t is
clear that
this application
was
brought
way
beyond
the
prescribed
time
period.
The
reason
is
so
why
this
is
so
not
hard to
find.
The
applicant was
not
aware
after
he
was
sentenced
that
his
rights
may
have
been infringed.
He
explained
that
he
gained
this
knowledge
by
happenstance
.
I
t
was
only
when
he consulted
with his
current
attorney with
the
view
of
applying
for
parole
or
converting
his sentence
to correctional
supervision,
that
he
was informed
that
his
rights
may
been
infringed.
9.
The right to legal representation
is one of the
most sacrosanct
rights
in
our
Bill
of
Rights.
See
s
35(2)(b)
of
Constitution
of
the
Republic
of
South
Africa,
1
08
of
1
996.
I
n
S
V
Halgryn [20021 4
All
SA
1
57(SCA)
it was
stated
at
par
1
4
that "the constitutional
right
to counsel must be real effective or
competent defence"
.
I
n
my mind, this can
only
follow
if
the
accused
is
represented
by
a
properly
qualified legal representative who
has a
right
to appear
in
the court at issue
.
To
appear
in such
a
court,
such
a
practitioner
necessarily
will
apply
the
court
or
the
Registrar
of
such
a
court
holding
himself
out
to
possess
the
necessary
skills and abil
i
ty
to
appear
in that a
court. Then
on that
basis, will the Registrar
issue a certificate certifying that such a person is properly
qualified.
1
0.
I
n
S
V
Mkhisa;
S
V
Mosia;
S
V
Jones;
S
V
Le
Roux
1988(
2)
SA
868
CA
)
it was
held to
be
a fundamental
irregularity
where
a
person,
who
had
not
been
admitted
as
an advocate,
represented
accused
in
a
criminal
trial. Furthermore, in
Olivier en Ander
V
Prokureur
General, Kaapse
Provinsiale
Afdeling en
Andere
1995(
1)
SA
455
CC)
it
was stated
to
be an
irregularity
where
a
candidate
attorney
appeared in
the
Regional Court on
behalf
of
accused without a required
certificate
entitling
him
to appear
in
such a court.
11.
The applicant
bitterly
complains
that
his
defence
was
handled
with
ineptitude thus
rendering
his trial
unfair. This
however,
is
"a factual
question
that
does
not
depend
upon
the
degree
of
e
x
post
facto
dissatisfaction of
the
litigant".
Furthermore,
at
this
stage
of
the
proceedings, it
is
not
my
duty to
make a finding whether there is
merit
in the applicant
'
s
contention or the result of such irregularity see
S
v
Botha
2006 SARC
1
05
(SCA).
I am merely called
upon
to introduce the alleged irregularity.
12..
Notwithstanding
the
inordinate
delay
in
bringing
this
application
to
court,
I
am
of
the
view
that
condonation
for
the
late
filing
of
the
application
should
be
granted.
Having
regard
to
the
explanation given
by the applicant, I am of the opinion
that the application satisfies the
test
laid
down
in
s317 of
the Criminal Procedure Act in that it
i
s
made
bona fide,
it
is
not
frivolous or absurd and by granting it
would not
be
an
abuse
of
the
process
of
court.
13.
Both
Counsel
have
without
being
prescriptive,
suggested
an
order
to
be
made.
I
am
of
the
view
that
the
suggested
order is
couched in acceptable
terms.
14.
I
n
the
circumstances I
make
the
following order
:
1.
dat
kondonasie aan die
applikant toegestaan
word vir
die
liasering
van
die aansoek
buite
die
tydperk
soos
voorsien
in
Artikel
317
(1)
van
die Strafproseswet
51
van
1977
2.
Oat die
volgende spesiale
anntekening
in
terme
van
Artikel 317(1) van die
Wet
op die rekord
van
die strafverringtinge
onder
saaknommer K/594/
2003
van hierdie hot
gemaak
word:
Gedurende
die verhoor is Besku/digde
Twee
verteenwoordig
deur
ene
Roe/of
Johannes
van
der
Merwe, terwyl
van
der
Merwe
nie
ooreenkomstig
die
bepalings
van
die"
Right
of
Appearance
in
Courts
Act
'
Wet
62
van
1995
oor
die reg op
verskyningsbevoegdheid in die
Hooggeregshof beskik het nie.
Beskuldigde 2 beweer dat die
verrigtinge onreelmatig
was
en
dat
geregtigheid
nie
geskied
het
nie
.
________________________
D
I MATLAPE NG
ACTING
JUDG E
Northern
Cape High Court, Kimberley
Counsel:
Fore
the Applicant:
Adv A Eillert
Instructed:
Andre Potgieter Attorneys
For
the Respondent: Adv JJ
Cloette
Instructed:
DPP Kimberly