S v Tume and Others (188/2004) [2006] ZANCHC 12 (24 February 2006)

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[2006] ZANCHC 12
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S v Tume and Others (188/2004) [2006] ZANCHC 12 (24 February 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case Nr: 188 /2004
Case Heard: 27/01/2006
Date
delivered: 24/02/2006
In the matter:
THE STATE
versus
JW TUME & 25 others
Coram:
Kgomo JP
et
Musi J
JUDGMENT ON REVIEW
MUSI J:
[1] These
matters were sent on special review by the Chief Magistrate Kimberley
on account of the fact that Mr Tiro Monchonyane who
appeared on
behalf of the accused between 12 March and 18 June 2004 in the
Kimberley magistrate’s court did not have a right of
appearance.
Monchonyane was attached to the Legal Aid Board Justice Centre:
Kimberley.
[2] Twenty six matters were
referred. In 22 of the matters the accused have been convicted and
sentenced. In four thereof, the accused
have already been convicted
but not yet sentenced.
[3] Pursuant to the aforementioned
referral Kgomo JP, Williams J concurring, issued a directive and
order on 21 July 2004 to the effect
that all the accused that were
not sentenced to wholly suspended sentences be released or
discontinue their correctional supervision
or community service or
payment of compensation or fines or deferred fines, as the case may
be, pending the determination of their
respective cases.
[4] Kgomo JP also requested
Monchonyane and his principal, Mr Jooste, to explain the
circumstances which gave rise to the series of
events. Monchonyane
is no longer attached to the Legal Aid Board and his whereabouts are
unknown. He did not explain the sequence
of events that led to this
unfortunate state of affairs. Jooste supplied an affidavit wherein
he sets same out, comprehensively
and clearly. It reads as follows:
“
Ek
die ondergetekende,
Louis Fourie Jooste,
Verklaar
hiermee onder eed soos volg:
1. Ek
is’n meederjarige man wat vir eie rekening praktiseer as prokureur
te 36 Leeuwenhoflaan, Kimberley.
2. Ek is versoek om
die omstandighede rakende Mnr T Monchonyane se verskyning in die
Landroshof te Kimberley terwyl hy nie gemagtig
was om dit te doen nie
te verduidelik.
3. Ek was die hoof
van die Kimberley Regssentrum vanaf 1 Julie 2003 tot 31 Julie 2004 en
dus ook die prinsipaal van die kandidaat
prokureurs by die sentrum.
4. Ek kan nie die
presiese datum onthou nie, maar Mnr Monchonyane het by die Kimberley
Regssentrum begin werk as kandidaat prokureur
aan die begin van 2003.
5. Ten
einde as kandidaat prokureur te werk moes Mnr Monchonyane met my, wie
sy prinsipaal was, ‘n leerkontrak sluit, welke kontrak
dan by die
Wetsgenoodskap Kaap Die Goeie Hoop geregistreer moes word.
6. Indien die
Wetsgenoodskap tevrede was met die dokumente, registreer hulle die
kontrak teen die voorgeskrewe fooi waarna die kandidaat
prokureur dan
die bevoegdheid kry om in die landroshof te verskyn.
7. Op ongeveer 12
Februarie 2004 het ek die leerkontrak met Mnr Monchonyane gesluit.
Op daardie stadium was dit gebruik dat die kandidaat
prokureur uit
eie fondse die registrasie fooi aan die Wetsgenoodskap betaal.
8. Ek
het R200 uit die kleinkas geneem en aan Mnr Monchonyane geleen
aangesien hy nie sy eie fondse gehad het nie. Hy moes met die
R200
‘n posorder ten gunste van die Wetsgenoodskap koop sodat sy kontrak
geregistreer kon word.
9. Ek
kan nie die presiese datum onthou nie, maar dit moes ‘n dag of twee
voor die 12de Maart 2004 gewees het toe Mnr Monchonyane
na my kantoor
gekom het en my meegedeel het dat sy kontrak geregistreer was.
10. Ek het geen rede
gehad om hom nie te glo nie en het vir hom ook versoek om die brief
van die Wetsgenoodskap aan die kantoor bestuurder
te gee vir
liasering.
11. Mnr Monchonyane
het daarna met groot selfvertroue en entoesiasme in die Landroshof
verskyn.
12. Op
ongeveer 17 Junie 2004 het ek vermoed dat alles nie pluis is nie toe
ek toevallig by die faksmasjien was en ‘n faks van die
Universiteit
van Noord-Wes gerig aan Mnr Monchonyane gelees het.
13. Die
faks was ‘n geskiktheidsertifikaat van die universiteit wat deur
die Wetsgenoodskap benodig word alvorens ‘n leerkontrak
geregistreer word.
14. Ek het die
Wetsgenoodskap gebel en vasgestel dat Mnr Monchonyane se kontrak nog
nie geregistreer was nie en dat hulle sy kontrak
eers ongeveer die
middel van Mei 2004 ontvang het.
15 Ek het
Monchonyane gekonfronteer en hy het toe erken dat die kontrak nie
geregistreer was nie en dat hy dit nie gedurende Februarie
2004 na
die Wetsgenoodskap gestuur het nie. Hy het ook erken dat hy nie ‘n
posorder met die R200 gekoop het nie, maar die geld
vir himself
geneem het. (Mnr Monchonyane het intussen die R200 wat aan hom
geleen was aan die Regssentrum terug betaal.)
16. Hy
het erken dat hy nie in staat was om weer R200 te bekom nie en het my
bedrieg sodat ek nie kon uitvind van die diefstal nie.
17. Ek
het toe onmiddelik vir Mnr Bezuidenhoudt by die Kimberley Landroshof
mondelings in kennis gestel en op 23 Junie 2004 skriftelik
van die
feit dat Mnr Monchonyane sonder magtiging verskyn het.
18. Ek het Mnr
Monchonyane dadelik ook verbied om weer in die hof te verskyn en is
hy ook geskors. Ek het later uitgevind dat Mnr
Monchonyane bedank
het en nie meer in diens van die Regshulpraad is nie.”
[5] Ms Caron
Jeaven, the Legal Officer of the Cape Law Society, confirmed that
Monchonyane’s contract of articles of clerkship was
only registered
on 24 June 2004 and that a certificate of right of appearance was
simultaneously issued therewith.
[6] In terms of
the Attorney’s Act 53 of 1979, (the Act) any person – other that
those exempted by section 2A of the Act – intending
to be admitted
as an attorney must serve under articles of clerkship.
The academic
requirements as well as the duration of the articles of clerkship are
stipulated in section 2
1
of the Act.
__________________________________________________________________
Section
2 of the Act reads as follows:
“
Any
person intending to be admitted as an attorney, shall serve under
articles of clerkship for a period of –
two
years after he or she has satisfied all the requirements for the
degree of baccalaureus legum of any university in the Republic
after pursuing for that degree a course of study of not less than
four years;
aA) two
years after he or she has satisfied all the requirements for the
degree of bachelor other than the degree of baccalaureus
legume, of
any university in the Republic or after he or she has been admitted
to the status of any such degree by any such university
and has
satisfied all the requirements for the degree of baccalaureus legume
of any such university after completing a period of
study for such
degrees of not less than five years in the aggregate;
aB) two
years after he has satisfied all the requirements for a degree or
degrees of a university in a country which may be designated
by the
Minister, after consultation with the presidents of the various
societies, by notice in the Gazette, and in respect of which
a
university in the Republic with a faculty of law has certified that
the syllabus of instruction and the standard of training thereof,
together with a supplementary examination (if any) required by the
latter university, the requirements of which have been satisfied
by
that person, are equivalent or superior to those required for the
degree referred to in paragraph (a);
……
three
years after he or she has satisfied all the requirements for any
degree, other than an honorary degree, of any university
in the
Republic, but has not satisfied the requirements of paragraph (a),
(aA) or (aB);
cA) three
years after he or she has satisfied all the requirements for any
degree other than an honorary degree, or for other such
degrees, of a
university in a country designated under paragraph (aB), and in
respect of which degree or degrees a university in
the Republic has
certified that the syllabus of instruction and the standard of
training thereof are equivalent or superior to those
required for a
corresponding degree of such university in the Republic, but has not
satisfied the requirements of paragraph (a),
(aA), (aB), or (c);
d) three
years after he has passed the matriculation examination conducted and
controlled by the joint matriculation board referred
to in section 15
of the Universities Act, 1955, or an examination certified by that
matriculation board to be equivalent or superior
thereto, and
thereafter has served continuously for a period of at least two years
as a clerk to any judge of the Supreme Court,
provided he enters into
articles of clerkship within a period of one year after he has ceased
to serve in such manner; or
e) five
years after he has passed an examination referred to in par (d).”
Section 4
stipulates the information that has to be furnished to the secretary
of the society of the province in which articles of
clerkship is to
be performed
2
.
[7] Section 5 of
the Act provides for the lodging, examination and registration of
articles or contract of service. In terms of this
section it is the
principal’s duty to lodge the contract of service or articles of
clerkship with the secretary of the Law Society
3
.
Mr Jooste abdicated his duty. He was found guilty of unprofessional
conduct by the Cape Law Society and according to the Society
an
appropriate sentence (whatever that means) was imposed.
__________________________________________________________________
Section
4 reads as follows:
“
Any
person intending to serve any attorney under articles of clerkship
shall submit to the secretary of the society of the province
in which
the service under such articles is to be performed, the following,
namely –
his
birth certificate or other proof to the satisfaction of the society
of his date of birth; and
proof
to the satisfaction of the society that he is a fit and proper
person and that he has –
(i)
passed
the examination referred to in section 2 (1) (d); or
(ii)
satisfied
all the requirements for a degree, other than an honorary
degree,
at any university in the Republic, or for a degree or degrees
referred
to in paragraph (aB) or (cA) of section 2 (1), in respect of
which
a certification in accordance with those respective paragraphs
has
been done.”
3.
Section 5 reads as follows:
“
1. The
original of any articles of clerkship or contract of service shall
within two months of the date thereof be lodged by the principal
concerned with the secretary of the society of the province in which
the service under such articles or contract of service is to
be
performed.
2. The
secretary of the society concerned shall, on payment of the fees
prescribed under section 80, examine any articles or contract
of
service lodged with him and shall, if he is satisfied that the
articles are or contract of service is in order and that the counsel
has no objection to the registration thereof, on payment of the fees
so prescribed register such articles or contract of service
and shall
advise the principal and candidate attorney concerned of such
registration in writing by certified post.
If
articles of clerkship are or a contract of service is not registered
within
two months of the date thereof, any service thereunder
shall
be deemed to commence on the date of registration
thereof.”
[8] Section 8 of
the Act provides for the appearance of candidate attorneys in court
and before other institutions. The relevant
portion thereof reads as
follows:
“
1. Any candidate
attorney who has satisfied all the requirements for the degree
referred to in paragraph (a) of section 2(1), or for
the degrees
referred to in paragraph (aA) of that section, or for a degree or
degrees referred to in paragraph (aB) of that section
in respect of
which a certification in accordance with that paragraph has been
done, shall be entitled to appear in any court, other
than any
division of the Supreme Court, and before any board, tribunal or
similar institution in or before which his or her principal
is
entitled to charge the fees for such appearances as if he or she
himself or herself had appeared…
2. ……
3. The secretary or
the society concerned shall, upon the written application of the
principal of any candidate attorney referred
to in subsection (1) and
upon the payment of the fees prescribed under section 80 (bA), issue
to such candidate attorney a certificate
that he complies with the
relevant provisions if subsection (1).”
[9] It is clear that Monchonyane did
not have the right of appearance in any court in the Republic of
South Africa prior to 24 June
2004.
[10] It is trite
that this Court has the power to review matters, which are not
automatically reviewable, emanating from the lower
courts
(magistrates and regional) before and after sentence
4
.
[11] Monchonyane’s
appearance on behalf of the accused whilst he had no right to do so
is an irregularity which is of such gross
a nature as per se to
vitiate the trial
5
.
In S v Lakay
6
a candidate attorney who had no right of appearance in the regional
court appeared in that court. Van Zyl J came to the conclusion
that:
______________________________________________________
4.
See
section 304 A and section 304 (4) of the Criminal Procedure Act, 51
of 1977 (CPA). This court may even do so prior to conviction
in
terms of section 24 (1) of the Supreme Court Act 59 of 1959 or by
using its inherent review powers – see
S
v Lusibi
1980 (1) SA 187
(T)
at
188 H to 189 A
.
5. See
S
v Naidoo
1962 (4) SA 348
(A)
at
354 D – H
.
6.
1998
(1) SASV 91 (C).
See also
S
v Khan
1993 (2) SACR 118
(N).
“
Sy
optrede as regspraktisyn wat ‘n beskuldigde verdedig op ‘n uiters
ernstige misdryf moet desnoods as ‘n growwe onreëlmatigheid
beskou
word. Die beskuldigde is kennelik daardeur benadeel en die reels van
natuurlike geregtigheid asook oorwegings van behoorlike
regspleging
en openbare beleid verg dat die verrigtinge tot niet gemaak word.
Kyk
S
v Mkhise; S v Mosia; S v Jones; S v Le Roux
1988 (2) SA 868
A
op
872 G
”
7
.
I agree with Van Zyl R. Although
both Lakay and Khan (supra)
dealt with candidate attorneys who
had a right of appearance in the district courts but not in the
regional courts the conclusion
reached in both cases are, in my view,
equally applicable to situations such as the cases under
consideration. The right of appearance
in the district court is
equally essential to the proper administration of justice. The lack
thereof means that the accused did
not enjoy competent legal
representation.
[12] In my view
we should not even consider the merits of each case in an attempt to
discern whether the accused enjoyed adequate
or competent
representation. The futility of such an inquiry was aptly
illustrated by
Kumleben
AJA
(as he then was) in
S
v Mkhise; S v Mosia; S v Jones; S v Le Roux
where he inter alia said:
“
Thirdly
it would be wholly impracticable to attempt to determine ex post
facto (that is, at some later stage when the
irregularity
come to light) whether counsel concerned was “a fit and proper
person” in the sense that this term is applied and
understood in
the Act, i.e. whether he is generally a person of integrity and
reliability … If, on the other hand, these words
are taken to refer
to his competence in the actual conduct of the case the difficulty
is, if anything, compounded. It would be even
more impracticable, if
not impossible, for the court to attempt to determine, by applying
some norm of competence (and by way of
an enquiry into the merits of
the case and counsel’s conduct thereof) whether he in his defence
of the accused has been proficient.”
8
___________________________________________________________
7.
at 93 e – f
8.
1988
(2) SA 868
(AD) at 875 C – E.
This argument
also holds true even in cases where the accused has pleaded guilty.
A competent legal representative could, for instance,
have advised
the accused to plead not guilty because the accused has a genuine
defence. This speculative probability militates against
confirming a
conviction based on the assistance and advise of an incompetent
person.
[13] In the
matter of S v Anna Hugo, case number B2755/04, which was erroneously
sent on automatic review in terms of section 302
(1) of the Criminal
Procedure Act, 51 of 1977 (CPA), our brother Majiedt J certified that
the proceedings were in accordance with
justice. The aforementioned
certificate falls to be withdrawn for two reasons, firstly, the case
was not reviewable in terms of
section 302 (1) of the CPA because the
accused had a legal representative
9
(albeit an incompetent one – as subsequently discovered) and,
secondly, had Majiedt J known that the legal representative had no
right of appearance he would not have granted the certificate. We
are entitled to withdraw the certificate without referring the
case
back to Majiedt J. See
S
v Nkosi (1); S v Nkosi (2); S v Mchunu
1984 (4) SA 94
(TPD)
at
100 D – 101 C; S v Zwane
2004 (2) SACR 291
(N)
at
295 d - g.
_________________________________________________
9.
See section 302(3) (a) which states that the provisions of
section 302 (1) shall only
apply
-with reference to a sentence which is imposed in respect of an
accused who was
not
assisted by a legal advisor.
[14] On 26
February 2002 Kgomo JP issued a directive to all legal
representatives and magistrates in
the Northern Cape wherein he inter alia stated:
“
Graag
word bygevoeg dat dit die plig van reg
sverteenwoordigers
wat wildvreemd is om die voorsittendebeampte tevrede te stel dat
hy/sy ‘n toegelate advokaat/prokureur is of
dat die persoon
verskyningsbevoegdheid het. Baie berigte verskyn in die pers van
mense wat hulle as regsteenwoordigers voordoen…”
Presiding
Officers should, generally, request legal representatives who are
unknown to them or whose legal professional title they
doubt to prove
that they have the right of appearance in that particular court.
[15]
In
the result the following order is made:
a) The conviction and sentence in
respect of each accused are set aside in the following cases:
i)
S v Jerry William Tume; Case no. B3576/04.
ii)
S v Chisto Kruger; Case no. B2381/04.
iii)
S v Michael Kopeledi; Case no. B4314/04.
iv)
S v Ernest Mpungose; Case no. B725/04.
v)
S v Elvis Maseng; Case no. B1684/04.
vi)
S v David Oliphant; Case no B3250/04.
vii)
S v Samuel Aaron; Case no. B1114/04.
viii)
S v Thapelo Mongale; Case no. B5949/04.
ix)
S v Dick Cowboy Steenkamp; Case no.
B3915/04.
x)
S v Benjamin Dirks; Case no. B4463/04.
xi)
S v Tete Poppy Kwes; Case no. B2818/04.
xii)
S v Martin Parker; Case no. B 11230/03
xiii)
S v Eddie Abew and 3 others; Case no.
B1026/04
xiv)
S v Robert Fisher; Case no. B7125/03
xv)
S v Martin Tafita; Case no. B 2257/04.
xvi)
S v Freddie September; Case no. B4141/04.
xvii)
S v Partich Blom and 1 other; Case no.
B12449/03
b) S v Anna
Hugo; Case no. B2755/04.
i) The certificate issued by
Majiedt J on 11 August
2004
is withdrawn.
ii) The conviction and
sentence are set aside.
c) The
convictions and sentences on all counts in respect of each accused
are set aside in the following matters:
i) S v Stephanus Johan van Niekerk; Case no.
B4153/04
ii)
S v Thapelo Mongale; Case no. B2246/04
iii)
S v Neal Everson; Case no. B368/04
iv)
S v Motlapi Mphirime; Case no. B12443/03
d) The
conviction of each accused in the following matters is set aside.
i)
S v Johannes Chabalala; Case no. B4259/04
ii) S v
Kagisho Herbert Louw; Case no. B3298/04
iii) S v
Johanna Elizabeth Bester; Case no.
B5745/04
iv) S v
Petrus Ntlathi; Case no. B4299/04
e) The clerk
of the court, Kimberley, is requested to send a copy of this order to
all the accused mentioned in paragraphs 15 a –
c above.
________________________
C
J MUSI
JUDGE
NORTHERN
CAPE DIVISION
I concur:
____________________
F
D KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For the State: Adv A van Heerden
On
behalf of: Director of Public Prosecutions, Kimberley
For
the Applicants: Adv J Hendricks
On behalf of: Legal Aid Board