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[2012] ZAFSHC 133
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S v Nghondzweni (163/2012) [2012] ZAFSHC 133; 2013 (1) SACR 272 (FB) (5 July 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO: 163/2012
In
the review of:
THE
STATE
and
SAMULE
ZONIZI NGHONDZWENI
_________________________________________________________
JUDGMENT BY:
MURRAY, AJ
_________________________________________________________
DELIVERED ON:
5 JULY 2012
_________________________________________________________
[1] This is a special
review upon request of the Judicial Head of the Sasolburg Magistrates
Court in the matter between
THE STATE v SAMUEL ZONDIZI
NGHONDZENI
which commenced on 4 August 2010 and is part heard
in the Sasolburg Regional Court before Regional Magistrate S E
Ebrahim.
[2] The review was
requested when it transpired that Mr T M Marabo, who represented the
accused during the said proceedings, did
not have the right of
appearance since June 2010. As appears from the letter of the Law
Society of the Northern Provinces, Mr Marabo’s
Contract of
Articles of Clerkship expired in June 2010 and he was not admitted as
an attorney. There is no doubt, therefore, that
Mr Marabo contravened
section 8(4) (a) of the Attorneys Act, Act 53 of 1979, which reads:
“
Any candidate
attorney who is entitled to appear as contemplated in subsection (1),
shall at the expiry of his articles or contract
of service, and
provided he remains in the employ of the attorney who was his
principle immediately before such expiry, or provided
he remains in
the service of the law clinic or the Legal Aid board concerned, as
the case may be, remain so entitled until he is
admitted as an
attorney, but not longer than six months.”
[3] The accused, a senior
member of the SAPS, was charged with assault, and rape. The charge of
assault was subsequently withdrawn.
He appeared in the Sasolburg
Regional Court, represented by Mr Marabo who he gave instructions to
act on his behalf or represent
him on 14 April 2011. The charge was
read to him on 13 June 2011 and Mr Marabo confirmed the plea of “not
guilty” and
entered no explanation. The complainant testified
and was cross-examined by Mr Marabo before the proceedings were
stopped for the
time being, on 22 November 2011, to remit the matter
to this Court for this special review. No judgment has been rendered
yet.
[4] This Court
consequently has to decide whether Mr Marabo’s appearance
rendered the entire proceedings in the court
a quo
invalid and
a nullity, or only that part of the proceedings in which Mr Marabo
appeared for the accused. If only part of the hearing
was affected,
the further question therefore is whether it would be competent for
the matter to continue, but with a new legal
representative for the
accused.
[5] As stated in
Du
Toit: Commentary on the Criminal Procedure Act
, Service 46,
2011, p. 11-27
“
It is trite law
that in principle a fatal irregularity (i.e. one that vitiates the
proceedings) takes place where an accused is
represented by someone
who has no right of appearance.”
[6] This was confirmed in
S v HEJI & OTHERS
2007 (2) SACR 527
by Blignault J
in a special review on 530 [10] and [11] with reference to a line of
cases which dealt with the situation where
a candidate attorney
appeared on behalf of the accused in the regional court, as
in
casu
, without the right of appearance in terms of the Attorneys
Act, Act 53 of 1979, and in which the Courts held that the
proceedings
were irregular and a nullity,
inter alia
S v
KHAN
1993 (2) SACR 118
(N),
S v NKOSI EN ANDERE
2000 (1) SACR 592
(T) and
S v STEVENS EN ‘N ANDER
2003 (2) SACR 95
(T).
[7] In
S v CHUKWU &
ANOTHER
2010 (2) SACR 29
(GNP), on the other hand, it was
found that not every irregularity vitiated the proceedings. In that
case a candidate attorney
continued to represent two accused after
expiry of his certificate exhibiting his right to appear. Poswa, J,
held that the candidate
attorney’s continued appearance was
irregular but did not vitiate the proceedings. He decided that in the
circumstances of
that case there could be no miscarriage of justice
if the proceedings were left intact and the case allowed to reach
finality by
permitting the representative to continue to represent
the accused. But that was because the representative was indeed well
enough
qualified and experienced so as not to rob the accused of his
Constitutional right to a fair trial which includes the right to be
represented by a legal practitioner.
[8] The circumstances in
S v CHUKWU
are very different from the instant one in
that there all the evidence had already been led, both sides had
already closed their
cases and the representative concerned appeared
to be experienced. He had previously been admitted as an advocate and
had the capacity
and ability to conduct a criminal trial.
Furthermore, the accused wanted him to continue to represent him. The
court therefore
held that to order otherwise would amount to
technical adherence to formalism at the expense of the accused’s
right to be
treated fairly.
[9] When Mr Marabo was
appointed by the accused on 13 April 2011, he already did not have
the right to appear in the Regional Court
or any other court in South
Africa. Neither did he have such right on 8 September 2011 when the
complainant started testifying.
That in itself is undoubtedly an
irregularity. It is clear, furthermore, from the record and from the
Court’s frequent interventions
during Mr Marabo’s
cross-examination of the complainant, that Mr Marabo is neither
qualified nor experienced enough to conduct
the trial. The accused,
moreover, has indicated that he did not want him to continue to
represent him either, but would prefer
to instruct an attorney whom
he could trust.
[10] In view of the
circumstances of the present case, the Court would not be justified,
therefore, in allowing the proceedings
to continue, as was done in
S
v CHUNGWU.
[11] The remaining
question, then, is whether the proceedings need to be set aside in
their entirety, or only that part during which
Mr Marabo appeared for
the accused. In
S v DLAMINI EN ‘N ANDER
2008 (2)
SACR 202
(T) it was found that the legal representative’s lack
of a right to appear during a portion of the trial still tainted the
proceedings to the extent that they have to be set aside in their
entirety and not just from the point at which he started to represent
the accused to the point where his appearance was terminated. In my
view, the same applies to the instant case and to my mind Mr
Marabo’s
appearance without admission rendered the entire proceedings a
nullity.
[11] There is no cogent
reason why the entire trial should not be set aside at this stage and
be heard afresh by the same court
with a qualified legal
representative for the accused.
ORDER
[12] In the premises the
following order is made:
“
The proceedings
in Case no RC 72/10, The State v Samuel Sonizi Nghondzweni, are set
aside in their entirety and the matter is remitted
to the Sasalburg
Regional Court to be heard afresh.”
____________________
H. MURRAY, AJ
I concur.
____________________
B. C. MOCUMIE, J
HM/eb