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2024
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[2024] ZAECBHC 18
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S v Mazaleni (E1223/23) [2024] ZAECBHC 18 (22 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
Reference
number: E1223/23
Review
number: 5/2024
In
the matter of:
THE
STATE
versus
BULELWA MAZALENI
ACCUSED
REVIEW JUDGMENT
STRETCH
J.:
[1]
This part-heard matter was sent on special review due to the fact
that the legal practitioner representing the accused, being
an
attorney in private practice, did not have a valid fidelity fund
certificate when his client pleaded to the charge and when
the first
prosecution witness testified.
[2]
Mr Sinclair from the Office of the Deputy Director of Public
Prosecutions is of the opinion that this constitutes a gross
irregularity
and that the proceedings should be set aside. He is
thanked for his helpful report in this regard.
[3]
Section 73(2)
of the
Criminal Procedure Act 51 of 1977
states that an
accused person is entitled to be represented by a legal adviser at
criminal proceedings, provided the legal adviser
is not, in terms of
any law, prohibited from appearing at the proceedings in question.
[4]
Section 84
of the
Legal Practice Act 28 of 2014
renders it mandatory for an
attorney practising for his own account, to be in possession of a
fidelity fund certificate.
[1]
The act of practising without a fidelity fund certificate has been
described by our courts as an irregularity that is of so fundamental
and serious a nature, that the proper administration of justice and
the dictates of public policy require it to be regarded as
fatal to
the proceedings in which it occurred.
[2]
[5]
In the circumstances, the Bhisho Office of the Deputy Director of
Public Prosecutions has recommended that the proceedings should
be
set aside. I agree.
[6]
The proceedings are rendered a nullity
ab initio
, and they are
set aside. Should the prosecution elect to do so, the trial should
proceed
de novo
before a different magistrate.
I.T
STRETCH
Judge
of the High Court
I
agree:
M.
LOWE
Judge
of the High Court
Date
handed down: 22 July 2024
[1]
See
Law
Society of the Northern Provinces v Le Roux
(185/2015)
[2015] ZASCA 168
(26 November 2015);
NW
Civil Contractors CC v Anton Ramaano Inc.
(a
judgment handed down in the Limpopo Local Division by A.M.L. Phatudi
J under case number 993/2016, on 14 May 2018)
[2]
See
S v
Van Eeden
2018
(2) SACR 218
(NCK) at [43]