About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 48
|
|
S v Mtjikane, S v Prechand and Another, S v George, S v Makhunoane (36/2012, 37/2012, 38/2012, 39/2012) [2012] ZAFSHC 48 (22 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 36/2012
1. The First Review
In the review between:-
THE STATE
versus
SEIPATI LYDIA
MTJIKANE
Review No.: 37/2012
2. The Second Review:
In the review between:-
THE STATE
versus
NARESH
PRECHAND
Accused 1
T. MOKUBUNG
Accused
2
Review No.: 38/2012
3. The Third Review
In the review between:-
THE STATE
versus
ARTHUR FILILE
GEORGE
Review No.: 39/2012
4. The Fourth Review
THE STATE
versus
VINCENT PHOTO
MAKHUNOANE
_____________________________________________________
CORAM:
RAMPAI,
AJP
et
CLAASEN, AJ
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
_____________________________________________________
DELIVERED
ON:
22 MARCH 2012
_____________________________________________________
[1] The aforesaid matters
were considered together because the same issue arose in all of them.
The first matter came to this court
by way of a special review in
terms of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
, as
amended. The accused first appeared in the district court on 12
November 2010. She was released on warning.
[2] The accused was
charged with the crime of theft. The presiding officer alleged that
she stole a CPU computer and accessories,
at Sasolburg on 26 October
2010. The stolen goods belonged to Metsimaholo Municipality.
[3] The hearing started
on 21 February 2011. Ms Sookraj was the presiding officer, Mr Masisi
prosecutor, Mr. T.M. Marabo the legal
representative and Mr.
Makoanyane, the court interpreter.
[4] Since then the trial
was postponed on a few occasions. The record showed that Mr Marabo
first appeared on 13 December 2010,
and last on 21 October 2011.
Ever since then there has been no meaningful progress made towards
the finalisation of this matter.
Questions were raised about Mr.
Marabo credentials as a lawyer.
[5] The second matter
also came to this court by way of a special review in terms of
section 304(4)
,
51
of 1977, as amended. The two accused, Mr. Naresh
Prechand and Mr. Thabo Mokubung were charged together as accused 1
and accused
2 respectively. They first appeared in the Sasolburg
District Court on 21 October 2010. They were released on warning.
[6] The accused faced a
number of criminal charges. The prosecution alleged that, the two
police officers committed crimes of extortion,
attempted extortion,
corruption, robbery and defeating the ends of justice at Sasolburg
between 1 November 2009 and 16 January
2010 in contravention
section
4(1)
Prevention and Combating of Corrupt Activities, Act 12 of 2004
section 3(a)
and related provisions of the same statute as well as
section 369A
CPA, 51 of 1977.
[7] The hearing started
on 7 October 2010. On that day each of them pleaded not guilty to
all the charges. I pause to remark that
accused 2 was charged with
fewer charges than accused 1. The presiding officer was Ms C. Neyt,
the public prosecutor, Mr. W.J.
Harrington, the defence legal
representative for both of the accused, Mr. T.M. Marabo and the court
interpreter Mr. C.J. Makoanyane.
[8] The trial was
postponed on a few occasions since then. The record showed that Mr.
Marabo’s first appearance was on 21
January 2010 and last
appearance was on 29 March 2011. Since then no constructive progress
was made towards the finalisation of
the matter. On 24 October 2011
questions were again seemingly raised in court concerning Mr.
Marabo’s legal credentials.
It was noted by the trial
magistrate that the matter would have to be taken on special review.
The matter was then postponed
to 10 November 2011. The purpose of
the postponement was to investigate Mr. Marabo’s
locus
standi
.
[9] The third matter
likewise came to this court by way of a special review in terms of
section 304(4)
CPA, 51 of 1977, as amended. The accused first
appeared in the Sasolburg District Court on 12 August 2010. He was
released on
warning.
[10] He was charged with
multiple counts of fraud and theft. The prosecution alleged that he
defraude Excel Motors or Estelle Nelson
or Hercule Kruger of the sum
of R135 499,43 at Sasolburg from 1 August 2009 to 13 July 2010.
[11] The hearing started
on 17 November 2011. He pleaded not guilty to all the charges. Ms
Sookraj presided, Mr. Masisi prosecuted,
Mr. T.M. Marabo defended and
Mr. Masenya interpreted.
[12] The trial was
postponed on a few occasions, since then. Mr. Marabo first appeared
on 22 August 2010 and last appeared on 26
June 2011. Since then no
constructive progress was made towards the finalisation of the
matter. On 31 October 2011 questions
were, once more, seemingly
raised in court concerning Mr. Marabo credentials.
[13] The fourth matter
similarly came to this court by way of a special review in terms of
section 304(4)
Criminal Procedure Act, 51 of 1977
. The accused first
appeared in the Sasolburg District Court on 24 December 2009. He was
released on warning.
[14] The accused was
charged with the crime of fraud. The prosecution alleged that he
defrauded the First Bank or Ms Susan Masike
of an amount of R13
950,00 at Sasolburg between 3 October 2009 and 22 October 2009.
[15] The hearing started
on 24 August 2010. Ms Sooraj was the presiding officer, Mr. Masisi
the public prosecutor, Mr. T.M. Marabo
the legal representative and
Mr. Lesako the court interpreter. The accused pleaded not guilty.
The evidence in support of the
charge was then presented.
[16] The trial was
postponed on a number of occasions. The record showed that Mr.
Marabo made his first appearance on 4 February
2010 and his last on 5
May 2011. Since then the proceedings have practically come to a
complete standstill. On 18 November 2011
questions were once again
raised about Mr. Marabo. The case was then remanded to 5 December
2011. From the record, I could not
ascertain what transpired on 10
November 2011.
[17] It
would seem that on 26 October 2011, the trial magistrate involved in
the second matter, Ms C. Neyt, herself emailed an enquiry
to the
regulatory structure with disciplinary jurisdiction over attorneys to
enquire about Mr. T.M. Marabo’s professional
standing.
[18] The Law Society: The
Northern Provinces replied on 2 November 2011. The letter reads:
“Geagte
Dame,
INSAKE: TM MARABO [M30849]
Ons verwys na u e-pos van 26 Oktober
2011 gerig aan ons Me Estelle Jordaan en bevestig dat ons op die
inhoud daarvan gelet het.
Volgens ons rekords het Mnr Marabo
se leerkontrak in Junie 2010 verstryk
en sal ons dit hoog op prys
stel indien u aan ons kan vermeld in welke sake hy in u hof of ander
howe verskyn het aangesien ons
sodanige optrede in ‘n baie
ernstige lig beskou. Ons bevestig dat ons reeds ‘n nota
teenoor sy naam aangebring het
om te verhoed dat hy as prokureur
toegelaat word totdat hierdie aangeleentheid volledig ondersoek is.”
[19] On 5 December 2011
the same magistrate, in a letter addressed to this court wrote:
“Dear
Sir/Madam
Special review: D79/10 and 3
others
Attached hereto four special reviews
to be handed over to the Vice Judge President so that he can allocate
it to a Judge doing
reviews.
An attorney Mr TM Marabo appeared in
all these cases and we received an email from the Law Society of the
Northern Provinces which
confirmed that he did not have any right of
appearance as from 26 June 2010.
I did take up the matter with Mr
Marabo and he said the law must take its course.
These matters are all part-heard
and no judgment has yet been rendered by the Magistrates. Please
request the Judge to set aside
these proceedings so that the matters
can start
de novo
.
”
[20] The aforesaid letter
apparently reached the clerk of the court at Sasolburg on 2 February
2012 and the registrar of this division
only on 22 February 2012.
[21] The magistrate, Ms
Neyt, described Mr. Marabo as an attorney. The description was not
correct. The gentleman was not an attorney.
According to the
responsible law society, he was a candidate attorney at all times
material to the four matters taken on special
review. He was serving
articles of candidacy or clerkship, to use a more familiar but
old-fashioned term.
[22] The magistrate
commented as follows in support of the relief she seeks:
“... he
did not have any right of appearance as from 26.06.2010.”
I am uncertain as to
where the magistrate obtained the precise date from. It will be
re-called that the letter from the law society
was inexact. It
reads:
“
Volgens ons rekords het Mr
Marabo se leerkontrak in Junie 2010 verstryk.”
[23] Perhaps the
magistrate telephonically received further information concerning the
date from the law society. It may well be
that she received it from
Mr. Marabo himself. She apparently took the matter up with him
before these matters were referred to
this court to be specially
reviewed. On account of the perceptible uncertainty of the source of
such information, I am somewhat
reluctant to accept in the absence of
any reliable documentary evidence that the gentleman’s contract
expired on 25 June
2010 and that, as from the 26 June 2010, he had no
valid right to appear in any court of law to legally represent any
accused person
on behalf of his principal.
[24] Notwithstanding the
aforesaid lacuna of imprecision, I assume, in favour of the candidate
attorney, that his contract to serve
his principal as an apprentice
terminated, at the very latest, on Wednesday 30 June 2010, if not
earlier. This then is the cut-off
line I am proceeding to use in
examining and assessing the four matters.
[25] What emerges from
the facts may briefly be summarised review by review. As regards the
first matter, the gentleman’s
first appearance was on 13
October 2010 and the last on 29 March 2011. Therefore he did wrongly
appear subsequent to the expiry
of his contract on 30 June 2010 and
before his admission as an attorney. Therefore, the accused lady was
not properly represented.
[26] As regards the
second matter, the gentleman’s first and last appearance were
on 21 January 2010 and 29 March 2011. His
appearance(s) before 1
July 2010 was lawful, but his subsequent appearances were unlawful.
Accordingly he was not supposed to
have appeared on behalf of the two
accused subsequent to the expiry of his articles.
[27] As regards the third
matter, the gentleman’s first and last appearances in court
were on 22 August 2010 and 26 June 2011.
When he first appeared his
contract had already lapsed. Therefore, he was not entitled to
legally represent the accused at all
right from beginning.
[28] As regards the
fourth matter the gentleman first and last appearances were on 4
February 2010 and 5 May 2011 respectively.
Therefore, the former was
rightful but the latter rightless.
[29] By appearing as he
did, he falsely represented to the accused and the trial courts in
particular, as well as the members of
the public in general that he
was a lawyer qualified to appear in court and to represent people
whereas in truth and reality he
knew that he had no such a right. In
the premises he
prima facie
defrauded the accused.
[30] The dominant
impression I get upon my integrated reading of all these reviews, is
that the accused know, as a candidate attorney,
that he did not have
an indefinite or absolute right of appearance in a court of law; that
knowledge, notwithstanding, he projected
himself as a qualified
attorney with unrestricted right of appearance in the district courts
on several occasions; that the accused
in these matters regarded him
as an attorney qualified to legally represent them; that each of the
accused probably paid him or
his principal to be legally represented;
that they were not lawfully and fairly represented and that the false
representation constituted
an irregularity of such gravity that it
virtually vitiates the proceeding in respect of each of these
matters. I take a very dim
view of this sort of unethical conduct by
a prospective attorney.
[31] I recommend that The
Law Society of the Northern Provinces should speedily investigate the
gentleman as well as his principal
in order to take a swift and
appropriate disciplinary action against those concerned. I also
strongly recommend that, should anyone
be found guilty of these
apparent misconducts, the sanction must include full compensation to
the victims, namely the five accused.
[32] I have come to the
conclusion that there was miscarriage of justice, occasioned by the
irregular, unethical and
prima facie
fraudulent conduct of the
gentleman, Mr. T.M. Marabo, in each of the aforesaid matters. I am
satisfied that a proper case has
been made out for the relief sought
by the magistrates.
[33] Accordingly I make
the following order:
33.1 The entire
proceedings in respect of each of the four matters are set aside.
33.2 The nullification
in respect of each matter applies
ab initio
each trial.
33.3 The matters are
remitted to the Sasolburg District Magistrate Court for the
de
novo
retrials of all the accused concerned.
33.4 The Law Society of
the Northern Provinces should be furnished with a copy of this
judgment.
________________
M.H. RAMPAI, AJP
I concur.
________________
J.Y. CLAASEN, AJ
/sp