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[2015] ZAGPPHC 239
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S v Mogotsi (A259/15) [2015] ZAGPPHC 239 (28 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A259/15
DATE: 28 APRIL
2015
In the matter
between:
THE
STATE
v
NEO
ABRAM MOGOTSI
JUDGEMENT
MAKHAFOLA,
J
INTRODUCTION
[1] This matter was
laid before me by way of a special review in terms of Section 304(4)
of Act 51 of 1977.
[2] The accused was
tried, convicted and sentenced in the Regional Court in Pretoria. He
was sentenced to 15 years imprisonment
on count 1: Robbery with
aggravating circumstances; to 2 years imprisonment on count 2:
possession of car breaking implements.
The 2 year imprisonment in
count 2 was ordered to run concurrently with count 1 in terms of
Section 280 of the Act. He was also
declared unfit to possess a
firearm in terms of Section 103(1) of Act 60 of 2000. The case was
finalized on 04 March 2014.
DISCOURSE
[3] The learned
magistrate was approached, late in November 2014 by Attorney Mkhabela
in his chambers who intimated to him that
he had been instructed to
launch review proceedings on behalf of the accused. The main ground
of the review proceedings was that
during the trial the accused had
been represented by a person who did not possess a right of
appearance.
[4] Subsequent to
this representation by Mr. Mkhabela, the Magistrate made his own
enquiries which revealed that the position as
spelt out by Mr.
Mkhabela was correct.
[5] The matter was
re-enrolled. The accused appeared before court per requisition. The
accused was then released on warning pending
the finalization of the
review.
[6] After reading
the record and the Learned Magistrate’s memorandum I caused
same to be dispatched to the office of the Director
of Public
Prosecutions for their attention and comment. The matter was attended
to by 2 senior state advocates, the most senior
who is a silk, is
also the Deputy Director of Public prosecutions in Pretoria. They
documented a well-researched comment for which
I thank them.
[7]
The position of the accused’s legal representative during the
trial was no better than that of the accused. At best, the
accused
was competent to appear
in
persona
and
represent himself whilst being assisted by the court in his trial.
[8] A legal
representative with no right of appearance caused an irregularity of
the trial to the extent that his conduct is inexcusable.
The result
of this irregularity impacts the core of the justness and fairness of
the trial that affects the proper administration
of justice.
[9] The accused’s
right to legal representation is guaranteed by Section 35(3) of the
Constitution Act 108 of 1996. The application
and enjoyment of this
right was usurped by, the then legal representative by
misrepresentation to the accused and the trial court
that he was
legally competent to represent the accused in court.
[10]
This irregularly apparent
in
casu
,
is fatal in nature that would issue substantial injustice if the
trial proceedings should be allowed to stand. This irregularity
vitiates the trial.
Vide
:
(1) S V Nkosi EN ANDERE 2000 (1) SASV 592 (TPA)
In this case the
court discussed the certificate in relation to a candidate attorney
and its importance. Of course, this goes without
saying that the lack
of the certificate results in the lack of the right of appearance.
[11]
Any appearance on behalf of an accused by a person who has no right
of appearance is
Qerse
an
irregularity. This was expressed in the following cases:
S V Le ROUX
1988(2) SA 868(A)
S V JONES; S
V
MOSIA; S V MKHISE.
In
these cases a
pro
deo
advocate
was not properly admitted. All the above cited cases are applicable
in this case.
[12] In the present
case it is not possible to know the full details regarding the legal
representative involved. Both the record
of the proceedings and the
magistrate’s memorandum do not tell if he was a formally
admitted advocate, attorney or a candidate
attorney. But the crux of
the matter is that he lacked the right of appearance required by the
Law to represent an accused person
in court.
[13] The conduct of
the “purported” legal representative is so offensive to
justice, that it has caused a wasteful expenditure
on the public
purse, prejudice to the accused who needs to be retried and the
vulnerability of a court of law which was deceived
by its “purported”
officer. I cannot fathom his intention in the mist of this factual
mess.
[14] I have no doubt
that the interests of justice will be served if the proceedings are
declared to be not in accordance with justice
by setting aside the
convictions and sentences and order a retrial of the accused.
CONCLUSION
[15] In the result,
I pronounce the following order.
ORDER
1)
The convictions and sentences of the court a
quo
are
set aside;
2) The matter is
remitted to the Regional Court, Pretoria;
3)
The trial of the accused shall start
de
novo
before
another Regional Magistrate; and
4) The officer in
charge of enrolling cases, is directed to enrol this matter within 21
days of receipt of this judgment.
KHAMI MAKHAFOLA
JUDGE OF THE HIGH
COURT
I concur
VV TLHAPl
JUDGE OF THE HIGH
COURT