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[2012] ZAFSHC 76
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S v Motaung (56/2012) [2012] ZAFSHC 76 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 56/2012
THE STATE
versus
CLIFFORD MZIMKHULU
MOTAUNG
_____________________________________________________
CORAM:
RAMPAI, AJP
et
SNELLENBURG, AJ
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
_____________________________________________________
DELIVERED
ON:
26 APRIL 2012
_____________________________________________________
[1] The 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 two accused
persons are on trial in the Heilbron district court. Their last
appearance was on the 30 March 2012.
On that day, the proceedings
were stayed pending the outcome of this review.
[2] The record showed
that accused 1 was arrested on the 16 July 2010. He first appeared on
the 19 July 2010 on which day he was
released on R2 500,00 bail.
Initially he was charged alone under case 274/2010.
[3] As regards accused 2
it appeared that he was arrested on the 29 September 2010. On the
same day he was released from custody
on R1 000,00 bail. Initially he
was separately charged under case 356/2010.
[4] On the 12 November
2010, the two cases were consolidated under the banner of case
274/2010. Since then Mr M C Motaung and Mr
D J Mokoena were tried
together as accused 1 and accused 2 respectively.
[5] The prosecution
alleged that accused 1, a public official, unlawfully accepted a
benefit in the amount of R1 300 from Mr D J
Mokoena, a member of the
public, at Heilbron on 21 June 2010 for his personal benefit in order
to have a driving licence improperly
issued to the said giver in
contravention of
section 4(1)(a)
of Act 12 of 2004 read with the
related provisions thereof as well as those of
section 265(A)
of the
Criminal Procedure Act, 51 of 1977
. That was the first charge. It
concerned accused 1, as the receiver only.
[6] The prosecution also
alleged that accused 2 , a member of the public, unlawfully offered a
benefit to the tune of R1 300,00
to Mr M C Motaung, a public
official, for his personal benefit, at Heilbron on the 21 June 2010
in order to have a driving licence
improperly issued in his favour,
in contravention of
section 4(1)(b)
of Act 12 of 2004 read with the
related provisions thereof as well as those of section 269A,
Criminal
Procedure Act, 51 of 1977
. That was the second charge. It concerned
accused 2, as the giver, only.
[7] The third charge was
one of defeating the ends of justice. Like the second charge, it too
concerned accused 2 only. The prosecution
alleged that accused 2
unlawfully made two contradictory statements to the members of the
South African Police Service at Heilbron
during the period commencing
on the 7 July 2010 and ending on the 28 September 2010 with the
intention to defeat the ends of justice.
[8] The hearing started
on the 4 August 2011. On that day Mr J R Steyn presided, Mr
Harrington prosecuted, Mr Schutte appeared for
accused 1 and Mr T N
Marabo for accused 2. The court interpreter was Mr N G Marabo and the
assistant court clerk was Ms N G Mhlauli.
The accused pleaded not
guilty to the charges. The prosecution then led the evidence.
[9] The case was then
remanded for further hearing. The hearing was set forth on 5 August
2011 and the 4 November 2011. On those
two days, Mr T M Marabo
appeared and represented accused 2. However, on the 14 November 2011
he did not appear. Questions were
asked but seemingly not answered
concerning Mr T M Marabo’s legal or professional credentials.
[10] It would seem that
on the 26 October 2011, Ms C Neyt, a district court magistrate at
Sasolburg, who presided in the criminal
trial of a certain Mr N
Prechand and T Mokubung under case D79/2010 in which the same Mr T M
Marabo was involved, emailed a query
to: The Law Society of the
Northern Provinces to enquire about Mr T M Marabo’s
professional standing, particularly his right
to appear in a court of
law on behalf of his principal and to legally represent clients of
his principal.
[11] The aforesaid law
society replied on 2 November 2011. The letter reads:
“
Me C Neyt
Landros: Sasolburg
E-pos:
Cneyt@justice.gov.za
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.
Die uwe
GETEKEN
J FOURIE(MNR)
SENIOR REGSBEAMPTE”
[12] On 27 February 2012,
again Mr T M Marabo did not attend court. Once again the case was
remanded. The need to send the matter
on special review was
recognised. The trial proceedings were then stayed. The case was
postponed to 12 March 2012. Since then nothing
significant has
happened concerning this matter.
[13] On the 1 March 2012
Mr Steyn, the trial magistrate addressed a letter to the registrar.
The registrar received the letter on
20 March 2012. The letter reads:
“
Die Griffier
van die Hooggeregshof
Privaatsak X20612
BLOEMFONTEIN
9300
INSAKE SPESIALE HERSIENING
STAAT VERSUS JONA D MOKOENA
HEILBRON SAAK 274/2010
Bogemelde saak is deelsverhoor in die
Landdroshof te Heilbron.
Tydens die verhoor het dit aan die
lig gekom dat Mnr M T Marabo wat namens Mnr Jonas D Mokoena optree
nie toegelaat is as ‘n
prokureur nie (Sien brief gedateer
17/11/11 ontvang van Mnr J Fourie (Senior Regsbeampte)
Prokureursorde van die Noordelike Provinsie.
In die lig hiervan versoek ek beleefd
dat u die saak voor ‘n Regter plaas wat ‘n
de novo
verhoor voor ‘n ander landdros kan gelas.
LANDDROS: HEILBRON
JR STEYN
”
[14] The gentleman did
not necessarily have to be an admitted attorney before he could
appear in a district court on behalf of his
principal to legally
represent anyone. A candidate attorney with a valid certificate
issued by a responsible law society, is entitled
to appear in a
district court for as long as such certificate of appearance remains
valid. The law society’s certificate
which regulates a
candidate attorney’s right of appearance in a magistrate court
expressly stipulates a specific date of
which such right expires.
[15] In this matter, the
law society advised the aforesaid magistrate that Mr T M Marabo’s
contract of employment as a candidate
attorney expired in June 2010.
The precise date of expiry of the gentlemen’s articles of
clerkship was not specified in the
letter. I could not ascertain it
anywhere on the record. Accordingly, I assume, in favour of the
candidate attorney, that his right
of appearance which stemmed from
his registered contract to serve his principal as an apprentice
terminated on Wednesday the 30
June 2010, at the very latest. This
then is the cut-off line I am proceeding to use in determine the
lawfulness or otherwise of
his alleged conduct.
[16] It appears from the
record that the gentleman made his first appearance in the matter on
the 4 August 2011. He disappeared
three months later. He last
appeared on the 4 November 2011. Overall, he appeared on four
occasions during that period. When he
first appeared, his contract
had lapsed 13 months earlier. It follows, therefore, that all his
appearances, all of which were after
the expiry of his contract, were
unlawful. Accordingly, he was not supposed to have appeared on behalf
of accused 2 at all
ab initio
.
[17] By appearing as he
did, he falsely represented to accused 2 and the trial court in
particular as well as the public in general,
that he was a lawyer,
qualified to appear in court and to legally represent accused persons
whereas, in fact and in truth, he knew
he no longer had such a right.
In the premises, he
prima facie
defrauded the accused. On four
different occasions he fraudulently projected himself as a lawyer and
thereby prejudiced not only
the accused but the proper administration
of justice as a whole. He prejudiced all the stakeholders including
accused 1.
[17] Last month this
court had this to say about the lamentable state of affairs
occasioned by the same gentleman:
“
[30] The
dominant impression I get upon my integrated reading of all these
reviews, is that the accused know, (sic) 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.”
See review number 36 of
2012 which was considered together with reviews number 37/2012,
38/2012 and 39/2012.
[18] This serious matter
has to be referred to the police so that the unlawful plundering of
the unsuspecting members of the society
can be thoroughly
investigated. Moreover, I once again recommend that the aforesaid law
society should speedily investigate the
gentleman as well as his
principal in order to take a swift and appropriate disciplinary
action against the culprit(s). Should
anyone be found guilty of this
seemingly misconducts, the sanction must include full compensation to
the victims.
[19] I have come to the
conclusion that there was miscarriage of justice in this matter,
occasioned by the irregular, unethical,
and
prima facie
fraudulent conduct of the gentleman, Mr T M Marabo. I am satisfied
that a proper case has been made out for the relief sought.
[20] Accordingly, I make
the following order:
20.1 The entire
proceedings are set aside
ab initio
.
20.2 The matter is
remitted to the Heilbron District Court for the
de novo
retrial of the two accused persons before a different magistrate.
20.3 The registrar is
directed to forward a copy hereof to The Law Society: Northern
Provinces.
________________
M.H. RAMPAI, AJP
I concur.
____________________
N. SNELLENBURG, AJ
/eb