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[2008] ZAWCHC 200
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Rubusana and Others v S (A443/2007) [2008] ZAWCHC 200 (16 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A443/2007
DATE
:
16
MAY 2008
In
the matter between:
SIPHELO
RUBUSANA
First
Appellant
BUKHULUBAKHE
MAMAZA
Second
Appellant
XOLISA
MZAMO
Third
Appellant
and
THE
STATE
Respondent
ON
RESUMPTION ON 16 MAY 2008
:
(at 09:54)
MR
WEEBER
:
As it pleases the Honourable Court M'Lords, I appear on behalf of
the three applicants, in this matter
COURT
:
Thank you.
MS
COOK
:
If it pleases the Court M'Lords, I appear on behalf of the respondent
in this matter.
COURT
:
Thank you. Would you like to address the Court.
MR
WEEBER
:
I would submit with respect that my heads contain my argument, and I
do not have anything more to say beyond that.
COURT
:
Right, thank you What is the attitude of the State? It appears,
perhaps we need to place on record, the conviction,
there
is no appeal against conviction, my learned brother and I have read
the record, our
prima
facie
view
approach is that the conviction should stand, and we intend
making an order confirming the conviction. Any
comments from
the State?
MS
COOK
:
Nothing M'Lord, as said in my ...(intervention).
COURT
:
Then
the only problem, it appears, relates to
sentence,
according to your heads of argument, and the record as well, it would
appear that a certain Mr Lingani appeared on behalf
of the three
accused, after they were convicted, and the point which was taken on
behalf of the appellants was that Mr Lingani
is not a lawyer as
defined for purposes of admission, in as much as he has no right of
appearance in Court, and therefore he is
not a lawyer.
Our
prima
facie
view
is that there is merits in relation thereto, these are accused
persons, they are entitled, in terms of Section 35 of the
Constitution,
to be legally represented by someone who is legally
qualified and not a bush lawyer. And our
prima
facie
view
would be therefore that we would confirm the conviction but set aside
the sentence and order that the matter be referred to
the trial court
and the rights of the accused persons be explained by the judicial
officer, insofar as they relate to the right
of an accused person to
be legally represented by someone who is legally qualified, and
obviously once that takes place we cannot
dictate to the practitioner
what evidence should be placed before Court. Any comments?
MR
WEEBER
:
We're indebted M'Lord, that is what I was hoping for.
ORDER
Thank
you. The order which we make in this matter is as follows:
The
conviction of all three appellants for murder is hereby confirmed;
The
sentence imposed on all three appellants is hereby set aside, the
reason being that they were not properly legally represented
as
appears from the record.
It
is now common cause that Mr Lingani, who appeared for the three
accused in the court
a
quo
and
purported to address the Court did not in fact have the right to
appear in Court and therefore he is not a lawyer as defined
for
purposes of appearing in Court and this was clearly in violation of
the accused right contained in Section 35 of the Constitution,
the
right of the accused person to be legally represented^ particularly
in serious cases such as this one, because they were charged
with
murder, so for that reason the sentence as imposed on all three
accused is hereby set aside and this matter is referred to
the Court
a
quo
for
purposes of the Court explaining to the accused person their right to
legal representation under Section 35 of the Constitution.
We cannot,
sitting on this bench obviously dictate what evidence should be
placed by the accused new legal representative in the
Court a
quo.
That
is the order of court in summary, the
CONVICTION
IS CONFIRMED, THE SENTENCES IMPOSED ON ALL THREE ACCUSED ARE SET
ASIDE
,
and the matter is referred back to the Court
a
quo
for
purposes of the Court a
quo
hearing
evidence, if necessary in this regard, and for purposes of the Court
a
quo
explaining
to the accused persons their rights to legal representations, that is
the order of court, I will propose.
Furthermore
the
ACCUSED
PERSONS SHALL BE ENTITLED TO BE RELEASED IMMEDIATELY ON CONDITION
THAT THEY MUST REPORT TO THE REGIONAL COURT, COURT B IN
WYNBERG. ON
THE 3
R0
OF JUNE 2008
.
That is a condition for their release, they are entitled to be
released today, only on that condition.
I
would like to warn the accused that if they don't meet those
conditions, obviously the law will take its course. That is the order
of Court.
HLOPE,
JP
I
agree
MATOJANE,
A