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[2016] ZAGPPHC 59
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S v Mpunga and Others (A44.2016) [2016] ZAGPPHC 59 (28 January 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
A44.2016
28/01/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Magistrate:
PRETORIA
Review
Case no: 14/1211/2012
High
Court Ref no: 507/15
THE
STATE v THANDO
K MPUNGA & 2 OTHERS
REVIEW
JUDGMENT
RAULINGA
J,
[1]
These matter was placed before me on special review in terms of
section 304 of the Criminal Procedure Act (''CPA"). The
matter
is partly heard before the regional magistrate court in Pretoria.
[2]
The three accused are facing charges under the Prevention of
Organised Crime Act (''POCA''). Accused NO 3 is also facing a charge
of contravening sections 18 (i) (e)(g) and (i) of Act 68 of 1977.
[3]
Accused No 1 engaged services of a private attorney. Since February
2013 accused No 2 and 3 have been represented by Mr Lekota
up until
February 2015 when he failed to pitch up in Court. Several witnesses
for the state have testified.
[4]
The regional magistrate submitted the case on special review after
ascertaining that Mr Lekota who represented accused No 2
and 3 is not
an admitted attorney. This was also confirmed by the Law Society of
the Northern Provinces. The regional magistrate
is of the view that
this amounts to an irregularity warranting interference by this
court.
[5]
Review is a procedure designed to ensure that those who appear before
lower courts are not subjected to judicial decisions which
bring
injustice to bear upon them, or which are preceded by a procedure, or
procedures that are flawed or are a result of irregularities.
[6]
The first trial right is expressly set out as a residual right which
includes, but not limited to, the enumerated fair trial
rights in
section 35(3) of the Constitution Act 108 of 1996. ('the
Constitution") In our law, the understanding of what constitutes
a fair trial is flexible, its constitutive components being informed
by the values that underlie our constitution. It is trite
that the
right to a fair trial embraces substantive fairness and one need not
emphasise that trials are required to be conducted
in accordance with
general open-ended notions of justice. All courts are therefore
enjoined to ensure that accused's right to a
fair trial is
protected.
[1]
[7]
Section 35(3)(f) provides that every accused person has a right to a
fair trial, which includes the right to choose and be represented
by
a legal practitioner, and to be informed of this right promptly.
[2]
Whereas section 1 of the Attorneys Act
[3]
defines a practitioner as any attorney, notary or conveyancer: And
for the letter given by the Law Society of the Northern Provinces
Mr
Lekota does not fall within the ambit of the above Act, and as such
he cannot be a qualified person to represent accused person
in
proceedings.
[8]
Our jurisprudence is such that an irregularity is "an irregular
or wrongful deviation from the formalities and rules of
procedure
aimed at ensuring a fair trial ". There is no exhaustive list of
what constitutes an irregularity. This is because
of the open-ended
notions of fairness and justice that underlie our conception of the
right to a fair trial.
[4]
[9]
In
S v
Mkhize: Sv Mosia: S v Jonas: S v Le Roux
[5]
,
the
court dealt with a similar situation (first time such a matter had
come before court in the legal history of this court) and
concluded
(at 875F-H) that, having regard to all the relevant considerations it
is in the public interest that the defence in a
criminal trial be
undertaken by a person who has been admitted to practice as an
advocate in terms of the Admission of Advocates
Act and lack of such
authorisation must be regarded as so fundamental an irregularity as
to nullify the entire trial proceedings.
[10]
Southwood J in
S
v Mhlonga
and
others
[6]
states as follows:
"It is not easy
to, if not possible in most cases to disentangle the facts and
determine what effect the appearance of an unqualified
person had on
the trial of the other accused Since the object of the rule is to
safeguard the integrity of the proceedings, it
seems to me to be
essential that the entire proceedings be set aside. Similarly, that
was the approach of the Court in S v Gwantshwe
and Another
[7]
which is the
only
case referred to which deals with a situation where one accused was
properly represented and the other accused not ......"
[11]
Considering the fact that accused No 1 was legally represented and
hence one cannot be able to ascertain the effect of Mr Lekota
on the
proceedings as a qualified person. If follows that the trial
proceedings in this matter must be set aside.
[12]
Accordingly I make the following order:
(a) The trial proceedings
are set aside.
(b) The matter is
remitted to the regional magistrate for it to start
de novo.
_________________________________________
T
J RAULINGA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
_________________________________________
R
G TOLMAY
JUDGE
OF THE NORTH GAUTENG HIGH COURT
[1]
Bogaards v s 2012(12) BCLR 126 (CC).
[2]
The Constitution.
[3]
53 of 1979.
[4]
Bogaards v S supra 1 at para [53].
[5]
1998(2) SA 868 (A).
[6]
(A314/10) [2010) ZAGPPHC 33 (29 April 2010) at para [9].
[7]
1995 (2) SACR 384
at 386 D