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2015
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[2015] ZAGPPHC 104
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S v Segoe and Others (A144/15) [2015] ZAGPPHC 104 (5 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE
NUMBER: A144/15
HIGH COURT REF NO:
822/2014
REVIEW CASE NO: SR
9/2014
DATE: 5 MARCH 2015
THE STATE
VS
PERCY SEGOE AND TWO
OTHERS
...................................................................................
ACCUSED
SPECIAL REVIEW
JUDGMENT
TEFFO, J
l] Four accused,
namely, Mr Percy Segoe, Mr Sebeko Mazibuko, Mr Sabelo Athur Nkosi and
Mr Emmanuel Buthelezi are standing trial
where they are facing one
count of conspiracy/incitement to commit robbery, 15 counts of
attempted murder, one count of attempted
robbery with aggravating
circumstances, five counts of malicious damage to property, three
counts of murder, one count of possession
of prohibited firearm, one
count of unlawful possession of firearm, one count of unlawful
possession of fully automatic ammunition,
one count of unlawful
possession of ammunition and three counts of theft of motor vehicles.
2] Their trial
commenced on 18 May 2012 where accused 1 was represented by Adv
Myburg, accused 2 and 4 by Adv Van Wyk and accused
3 by Mr Bungani.
On 19 June 2014 prosecution was stopped against accused 4 and he was
acquitted on all counts.
3]
During the course of the proceedings before the court
a
quo,
it
came to light that Mr Bungani was suspended from the roll of
attorneys and therefore lacked right of appearance. According to
a
letter from the Law Society of the Northern Provinces (LSNP), Mr
Bungani was suspended from the roll of attorneys from 6 June
2014. He
appeared for accused 3 in the above matter on 19 and 20 June 2014
when the matter proceeded while not authorized to appear
for lack of
a fidelity fund certificate. The matter was then sent on special
review to the High Court, North Gauteng for clarification
on the
legal position regarding the predicament of the court
a
quo
with
regard to the proceedings before it where Mr Bungani appeared on 19
and 20 June 2014 without authorization to do so.
4] The matter was
allocated to my brother, Coetzee J and he requested the National
Director of Public Prosecutions (NDPP)’
comments on the matter.
The comments were received and noted. Due to his unavailability to
deal with the matter, the matter came
before me. I am delighted to
the NDPP for their remarkable comments.
5] After careful
consideration of the complete record of the proceedings I am
satisfied that when Mr Bungani represented accused
3 during the
period 18 May 2012 to 28 March 2014, he was a “legal
practitioner” for all intents and purposes as defined
in the
constitution.
6] In S v Mametja
1979(1 )SA 767(T) referred to in Marques 2013(2) SACR 369(GNP) at
371, the court found that the circumstances
where the High Court may
exercise its inherent power to review lower court proceedings are
only “where grave injustice might
otherwise result or where
justice might not be attained.”
7]
The issue for determination pertains to the legality of the
proceedings before the court
a
quo
after
6 June 2014.
8] Section 8(4) of
the Attorneys Act 53 of 1979 reads:-
“
Any
practitioner who has been struck off the roii or suspended from
practice shall not, while he or she is so struck off the roll
or
suspended, continue to practice as a practitioner directly or
indirectly for his or her own account or in partnership or
association
with any other person, or except with the written consent
of the society concerned, and, if he or she is a person who, in terms
of section 34(1 )(b) of the Internal Security Act 74 of 1982, has
been struck off the roil, also with the written consent of the
Minister, be employed in any capacity connected with the profession
of a practitioner. ”
9]
It follows from the provisions referred to
supra
that
on 19 and 20 June 2014 accused 3 was not properly represented. I am
of the view that the proceedings of the court
a
quo
on
19 and 20 June 2014 were irregular and not in accordance with
justice. They therefore stand to be set aside.
10]
The matter is still pending in the court
a
quo.
A
number of witnesses have already testified and more witnesses are
still to be called. Taking into account the stage the trial
has
reached, the inconvenience the State could face in having to
establish whether the ; material witnesses would still be available,
I am of the view that re-instituting the criminal prosecution will
not serve the interests of the complainants or justice in general.
I am persuaded that
it will be in the interests of justice to only set aside the
proceedings of 19 and 20 June 2014.
11]
The proceedings of 19 and 20 June 2014 are therefore reviewed and set
aside and the matter is remitted to the court
a
quo
for
finalisation.
M J TEFFO
JUDGE OF THE HIGH
COURT
(NORTH GAUTENG
DIVISION, PRETORIA)
I agree
C PRETORIUS
JUDGE OF THE HIGH
COURT
(NORTH GAUTENG
DIVISION, PRETORIA)
And it is so
ordered.