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[2015] ZAECBHC 23
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S v Swapi and Others (14/14,RCZ 300/13, 6/2014) [2015] ZAECBHC 23 (1 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
BHISHO
Case no. 14/14
Review Case No. RCZ
300/13
Magistrate’s
Serial No. 6/2014
REPORTABLE
In the matter of:
THE
STATE
versus
ANELE
SWAPI
Accused
No. 1
UNATHI
GANTILE
Accused
No. 2
JABU
TIMAKWE
Accused
No. 3
SPECIAL REVIEW
JUDGMENT
STRETCH J:
[1]
The three accused are standing trial in the
Zwelitsha regional court on a charge of robbery with aggravating
circumstances.
[2]
At the commencement of their trial on 17
March 2014, and up until this matter was sent on review, accused nos
1 and 2 were represented
by Mr Manona, and accused no. 3 was
represented by Mr T. Mafeke.
[3] All three
accused pleaded not guilty and elected not to disclose the bases of
their defences.
[4] The
prosecution called three witnesses and was about to call a fourth it
would seem, when it transpired that
Mr Mafeke (for acc. no. 3) had
not been admitted as an attorney.
[3]
This was indeed confirmed in writing by the
Cape Law Society. According to its records, Mr Mafeke’s
contract of articles
of clerkship had been registered with one Mr
Hole from Hole and Associates in East London. He commenced
these articles on
4 April 2006 and they were terminated on 24 January
2008. Shortly thereafter, and on 28 February 2008, this firm of
attorneys
closed its doors.
[4]
According to the Society’s legal
officer in charge of candidate attorneys, there is no record that Mr
Mafeke applied for his
admission as an attorney thereafter.
[5]
The proceedings were accordingly stopped
and the matter was sent on special review by the regional
magistrate. At that time
accused nos 1 and 2 were represented
by Ms Mbadi, and Mr Mafeke had been substituted by Mr Diko.
[6]
Section 8(4)(a) of the Attorneys Act 53 of
1979 (“the Act”) reads as follows:
‘
Any
candidate attorney who is entitled to appear as contemplated in
subsection (1), shall at the expiry of his or her articles or
contract of service, and provided he or she remains in the employ of
the attorney who was his or her principal immediately before
such
expiry, or provided he or she remains in the service of the law
clinic or Legal Aid Board concerned, as the case may be, remain
so
entitled until he or she is admitted as an attorney, but not for
longer than six months.’
[9] Assuming that Mr
Mafeke had satisfied the requirements of subsection 8(1) of the Act
pertaining to the right to appear as a
candidate attorney in the
regional court, the right would have terminated when the firm of
attorneys closed its doors (in his case
on 28 February 2008), or at
best for him six months later, at the end of August 2008. Once this
right has been terminated, it only
comes into operation again once
the candidate attorney has been admitted as an attorney in terms of
section 15 of the Act.
[10] In the
circumstances, and in the absence of any indication that he had been
so admitted, Mr Mafeke was not entitled to appear
as an attorney at
this trial which commenced more than six years after his articles had
been terminated.
[11] The case law
dealing with circumstances such as these is clear. As a matter
of course, where an attorney represents
a client when that attorney
has no right of appearance, the proceedings are declared a nullity.
This is so because the proceedings
are deemed to have been irregular.
It is thereafter up to the State to decide whether to proceed against
the accused
de novo. S
ee for example
S v Mkhize; S v
Mosia; S v Jones; S v Le Roux
1988 (2) SA 868
AD 875G;
S v
Khan
1993 (2) SACR 118
NPD 120e;
Oliver en ‘n
Ander v Prokureur-Generaal, KPA
1995 (1) SA 455
KPA 463I-464I;
S
v Gwantshu and Another
1995 (2) SACR 384
(E) 386a;
S v La Kay
1998 (1) SACR 91
(C) 93e-g;
S v Nkosi en Andere
2000 (1)
SACR 592
(T) 595g;
S v Stevens en ‘n Ander
2003
(2) SACR 95
TPA 97f;
S v Heji & others
2007 (2) SACR
527
(C) [10] and [11];
S v Nghondzweni
2013 (1) SACR 272
FB 273 [5] and [6].
[12] The question
which remains is whether the proceedings in the matter before me
ought to be set aside in their entirety,
or only those with respect
to when Mr Mafeke appeared for accused no. 3.
[13] Accused no. 3
is not the only person on trial. He has two co-accused who
have, on the face of it, been represented
thus far by a qualified
lawyer. In my view they have a direct and substantial interest
in the future conduct of these proceedings.
So too, does the
prosecution.
[14] Accused no. 3
is presently represented by Diko Attorneys, who hold instructions
from him that there should be a separation
of trials with the
proceedings carrying on where they left off against the first and
second accused, and for the proceedings against
accused no. 3 to
commence
de novo
(obviously at the instance of the
prosecution). This view is shared by his co-accused, by the
presiding officer and by the
senior public prosecutor.
[15] Indeed, the
senior public prosecutor has informed me in writing that he has
perused the transcript thus far, that the
prosecution has examined
the further evidence which it intends presenting, that he is of the
view that it would be in the interests
of justice for the trial of
accused nos 1 and 2 to be separated from that of accused no. 3, and
that once proceedings have been
finalised against them, the
prosecuting authority would be better equipped to consider whether to
prosecute accused no. 3 afresh.
[16]
Section 157(2)
of the
Criminal Procedure Act 51 of 1977
states that where two or
more persons are charged jointly, whether with the same offence or
with different offences, the court
may at any time during the trial,
upon the application of the prosecutor or of any of the accused,
direct that the trial of any
one or more of the accused be held
separately from the trial of the other accused, and the court may
abstain from giving judgment
in respect of any such accused. It
has also been held that a court may of its own accord raise the issue
of separation of
trials. See
S v Ndwandwe
1970 (4) SA
502
(N). This appears to have been the position in the matter
before me and which motivated the presiding officer to send the
matter on special review.
[17] With the
exception of
Gwantshu,
the cases which I have referred to all
deal with the situation where there was either a single accused, or
where the tainted legal
representative had appeared for all the
accused. By implication in those matters, the setting aside of the
proceedings would automatically
have called for the setting aside of
the proceedings in their entirety.
[18] In
Gwantshu
however, as in the matter before me, the accused were represented
by more than one lawyer. In that matter too, the State had called
a
number of witnesses before it had transpired that the lawyer
representing the second of two accused did not have a right of
appearance. The proceedings were stopped and the regional magistrate
submitted the matter to this court for review, requesting that
the
proceedings be set aside to enable the affected accused to appoint
another legal representative at a hearing
de novo
. This
request was supported by the prosecutor and the representative for
accused no. 1 (Mr Shaw), the suggestion having been that
only the
proceedings against accused no. 2 be set aside.
[19]
Notwithstanding what appears to have been the intention of the
magistrate, that of Mr Shaw and that of the prosecutor
(that the
proceedings against accused no. 1 ought to continue), and not having
had sight of the record of the evidence adduced
in the lower court,
Mullins J (with Lang AJ) concurring, set aside the proceedings
against both accused, concluding that:
(a)
The mere fact of one attorney’s lack
of authority was sufficient to vitiate the proceedings as a whole
even if it was intended
that only the proceedings with respect to one
of the accused should be set aside (at 386
a
);
(b)
This was the effect of other judgments
where there was a single accused only and the proceedings were set
aside (at 386
b
)
;
(c)
Without reference to the record, it was
impossible to determine whether or not the irregularity might have
had some effect on accused
no. 1’s defence (at 386
b-c
).
[20]
Gwantshu,
also having been the judgment of a review court (two judges) of
this division, this court is bound to follow that decision, unless
it
can find that it is clearly wrong, and/or that it is distinguishable
on the facts.
[21] As I have
said, there are many cases where the entire trial of a single
accused; alternatively, the entire trial of more
than one accused
represented by a single legal representative, have been set aside
upon discovery that the representative has no
right of appearance or
has otherwise been disqualified to represent the accused. The
reviewing court in
Gwantshu
concluded that the effect of these
decisions is that the proceedings should be set aside as a matter of
course, irrespective of
the wishes of the affected parties,
irrespective of what the record reflects, and irrespective of the
indisputable fact that the
situation where some of the accused are
represented by qualified attorneys is distinguishable from that where
all the accused are
represented by the same disqualified attorney.
[22] It goes
without saying that where a single accused is represented by a
disqualified attorney, or where a number of accused
are all
represented by such an attorney, and it has been decided that this
irregularity is of such a nature that the proceedings
are vitiated
thereby, there can be no other way of dealing with the proceedings
but to set them aside
in toto
, the obvious reason for this
being that if the only person representing the accused is
disqualified, the entire defence is affected.
To my mind, the setting
aside of a trial in these circumstances does not mean that trials
where the circumstances differ should
also be set aside entirely,
particularly not where:
(a) The record does not
call for such a course of conduct to be followed;
(b) The affected parties,
inclusive of all the accused, the presiding official and the
prosecutor do not deem such an approach to
be necessary, convenient
or in the interests of justice,
(c) It appears to be in
the interests of justice to commence
de novo
against the
affected accused only;
(d) A separation of
trials together with appropriate measures is unlikely to prejudice
the accused or the administration of justice.
[23] At the end of the
day the main test in deciding whether the entire trial should start
afresh (in other words without separating
the affected accused from
the others) is whether any of the accused will suffer prejudice, or
are likely to suffer prejudice if
this course of conduct is to be
preferred. The views of the prosecution should also be thrown into
the balance. Ideally, matters
such as these should be dealt with on a
case by case basis, and each matter should be considered on its own
merits. To my mind,
the court in
Gwantshu
applied a procedure
(which had been followed in very different circumstances and which
was the only option in those circumstances),
to the circumstances of
the matter which it was seized with, without giving any consideration
to relevant factors such as the views
of the parties and the nature
and extent of the evidence already led.
[24] In my respectful
view the reviewing court in
Gwantshu
not only erred in doing
so, but it was clearly wrong in concluding that the
effect
(my
underlining) of the setting aside of one trial (in proceedings where
that was inevitable due to the presence of a single accused)
meant
that entire trials in all other matters (where some of the accused
were represented by qualified representatives) must be
set aside as a
matter of course. In my view the procedure followed in the line of
cases preceding
Gwantshu
was not intended to have such a
blanket effect.
[25] I have taken
the opportunity to peruse the transcript of the proceedings in the
court below. I agree with the senior
public prosecutor that it is in
the interests of justice that the trial of accused nos 1 and 2 be
separated from that of accused
no. 3.
[26] In the
premises, and having found in any event that the court in
Gwantshu
was wrong in applying the procedures adopted in distinguishable
cases without satisfying itself that the adoption of such procedure
was in the interests of justice, I am not bound to follow that
decision.
[27] I
make the following order:
(a)
The proceedings against Jabu Timakwe
(accused no. 3) must be stopped, and any proposed hearing with him as
an accused shall commence
de novo
and
be held separately to the present proceedings.
(b)
The present proceedings against Anele Swapi
(accused no. 1) and Unathi Gantile (accused no. 2) shall continue and
be finalised before
the regional magistrate seized with this trial,
provided that any questions which were asked by, and answers which
were given in
response to Mr T. Mafeke on behalf of Jabu Timakwe
(accused no. 3), shall be ignored by the presiding officer and shall
be expunged
from the trial record before the proceedings continue.
I T STRETCH
JUDGE OF THE HIGH
COURT
1 September 2015
I agree:
C T S COSSIE
ACTING JUDGE OF THE
HIGH COURT