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2015
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[2015] ZAGPPHC 83
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S v Mbangeni and Another (A88/15) [2015] ZAGPPHC 83 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date: 19 February
2015
Case number: A88/15
Not reportable
Not of interest to
other judges
High Court Reference
No: 820/14
Magistrates Serial
No: SH141/2014
Case No: 8/2014
MAGISTRATE
SEBOKENG
THE STATE V SOLLY
SOLOMON ZWELAKHE MBANGENI AND SARAH
MATLAKALA MATI
KANE
REVIEW JUDGMENT
POTTERILL J
[1] The accused
before the court are charged with murder. The state’s case and
accused 1’s case has been closed.
[2] During the
defence case of accused 2 the Acting Regional Court Magistrate
realised that Mr. Thoabala, acting on behalf of accused
2, was not an
admitted attorney.
[3] The Magistrate
due to the irregularity sent the matter on special review for the
proceedings to be set aside.
[4]
The
comment of the National Director of Public Prosecutions was requested
and they concurred that where a legal representative did
not have a
right to appearance the irregularity is of such a nature that it
would result in a miscarriage of justice and the proceedings
must be
set aside. They did suggest that the Magistrate enquire from the Law
Society whether Mr. Thoabala had a right of appearance
when
representing accused 2.
[5] The Law Society
has confirmed that Mr. Thoabala had no right of appearance and has
not been admitted as an attorney.
[6]
In view of the Law Society’s confirmation that Mr. Thoabala is
not an admitted attorney and has no right of appearance
a miscarriage
of justice resulted and it must follow that the proceedings must be
set aside -
S v Nkosi and Others
2000
(1) SACR 592
(T).
[7] Accordingly the
following order is made:
The
proceedings are set aside and the trial is to start
de
novo.
S.POTTERILL
JUDGE OF THE HIGH
COURT
I agree
N. KOLLAPEN
JUDGE OF THE HIGH
COURT