IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case no: RC552/2024
Special review no: 15/2024
In the matter between:

THE STATE

and

KWAZI MICHAEL MKHIZE


Coram: Mossop J and E Bezuidenhout J
Received: 18 December 2024
Delivered: 23 December 2024


ORDER


The following order is granted:
1. The convictions of Mr Kwazi Michael Mkhize and the sentences imposed upon
him on 27 June 2023 are set aside.
2. Pending a decision by the Director of Public Prosecutions on whether to
prosecute Mr Kwazi Michael Mkhize de novo, he is to be released from prison and
the registrar of this court is directed to urgently notify the Department of Correctional
Supervision of the terms of this order.

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3. A copy of this judgment is to be sent by the registrar of the high court to the
Legal Practice Council, KwaZulu -Natal to consider whether further disciplinary steps
are necessary in respect of the conduct of Mr Attorney Lizwi Joshua Kwela (the
attorney)
4. A copy of this judgment is to be sent by the registrar of the high court to the
South African Police Services to consider the desirability of investigating whether Mr
Attorney Lizwi Joshua Kwela is guilty of a criminal offence.


JUDGMENT


MOSSOP J (E BEZUIDENHOUT J CONCURRING):

[1] This matter comes before me on special review at the request of the
magistrate of Pietermaritzburg. On 27 June 2023 , Mr Kwazi Michael Mkhize (Mr
Mkhize) was convicted in the regional court of that city on a count of unlawfully
possessing a firearm and a further count of unlawfully possessing ammunition for
that firearm. On the count of unlawfully possessing a firearm, he was sentenced to
10 years imprisonment and on the other count he was sentenced to 3 years’
imprisonment, which latter sentence was ordered to run concurrently with the first
sentence. He has, thus, already served almost 18 months of his effective sentence
of 10 years of imprisonment.

[2] During the entire course of his criminal prosecution, which commenced on 25
November 2022 and which terminated on 27 June 2023 with his conviction and
sentence, Mr Mkhize was legally represented by a Mr Lizwi Joshua Kwela (Mr
Kwela), apparently at all times an admitted attorney with a right of appearance in the
Regional Court.

[3] On 18 December 2024, the record of Mr Mkhize’s proceedings in the regional
court was received by the registrar of the high court on special review and was
placed before me for consideration . The basis of the special review is to be found in
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the following remarks which appear in the covering letter that accompanied the
request for the special review:
‘The accused was defended by an attorney, Mr. Liz wi Joshua Kwela who was suspended as
per annexure “A” of the Legal Practice Council letter dated 12/ 11/ 2024.’

[4] Attached to th e covering letter was a letter , dated 12 November 2024 , in
which the Legal Practice Council (the LPC) wrote to the magistrate of
Pietermaritzburg and stated the following:
‘Kindly be advised that Mr Lizwi Joshua Kwela of the above -mentioned firm1 is suspended
from practicing as a legal practitioner on 22 July 2020 till to date as per our database and the
Director of the Legal Practice Council (KwaZulu Natal Provincial office ) is the appointed
Curator in this matter.’

[5] No further particularity was mentioned in the LPC’s letter . Given the time of
year, being the festive season recess period at the end of the formal court year , I
accordingly directed my registrar to urgently seek further information from the LPC of
the grounds upon which Mr Kwela was suspended from practice and why he
remained suspended four years after his initial suspens ion. However, it was not
possible to contact the LPC, which appears to have closed for the festive period. I
accordingly have no other information than that contained in the LPC’s letter of 12
November 2024.

[6] It is trite that th e LPC is the custos morum of the legal profession and it is its
duty to , inter alia, identify, maintain and preserve the prescribed standards of
conduct required by members of the legal profession generally. It has the power to
suspend members who do not achieve those standards, and it may, in deserving
cases, prevent a wayward legal practitioner from continuing to act as a legal
representative. In performing its duties in either suspending or striking off a member ,
the LPC does not impose a penalty upon the legal practitioner but rather acts in
protection of members of the public. 2 In coming to a decision on what steps to take
against a legal practitioner , the LPC weighs up the conduct of which complaint has
been made against the standard of conduct expected of a legal practitioner. In doing

1 The firm referred to was ‘Kwela and Company.’
2 Malan and Another v Law Society of the Northern Provinces 2009 (1) SA 216 (SCA) para 7.
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so, it undoubtedly exercises a value judgment. 3 For the purposes of this judgment,
and being unable to contact the LPC, I shall cautiously accept that the suspension of
Mr Kwela was justified.

[7] Our legal system cherishes the right to legal representation in legal
proceedings, especially criminal proceedings . Section 35(3) of the Constitution
permits an accused person the right to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly following upon arrest . Section
73(1) of the Criminal Procedure Act 51 of 1977 reinforces that right when it proclaims
that:
‘An accused shall be entitled to be represented by his legal adviser at criminal proceedings,
if such legal adviser is not in terms of any law prohibited from appearing at the proceedings
in question.’4
And s 33(1) of the Legal Practice Act 28 of 2014 provides that:
‘Subject to any other law no person other than a legal practitioner who has been admitted
and enrolled as such in terms of this Act may, in expectation of any fee, commission, gain or
reward:
(a) appear in any court of law or before any board, tribunal or similar institution in which only
legal practitioners are entitled to appear;’.

[8] Mr Mkhize was represented at his criminal trial by a person that had no
entitlement or right to do so , given his suspension . In appearing as he did , it is
entirely probable that Mr Kwela misled both Mr Mkhize and the regional magistrate .
Neither of them knew that he was not entitled to act as an attorney or to represent
any person while under suspension. By failing to disclose this to either Mr Mkize or
to the regional magistrate, Mr Kwela intended to deceive both. That goal he achieved
for it was only after the criminal proceedings had ended that it emerged that Mr
Kwela had been suspended.

[9] In Ex parte Swain,5 this court observed that:

3 Jasat v Natal Law Society 2000 (3) SA 44 (SCA) para 10.
4 Of course, in this given instance, there was an impediment to Mr Kwela representing Mr Mkhize at
his criminal proceedings and that was the fact that Mr Kwela had been suspended from continuing to
practice.
5 Ex parte Swain 1973 (2) SA 427 (N) at 434H.
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‘It is of vital importance that when the Court seeks an assurance from an advocate that a
certain set of facts exists the Court will be able to rely implicitly on any assurance that may
be given. The same standard is required in relations between advocates and between
advocates and attorneys. The proper administration of justice could not easily survive if the
professions were not scrupulous of the truth in their dealings with each other and with the
Court.’
The extract refers to assurances sought from an advocate, but the same reasoning
applies where attorneys appear before the court.

[10] It is so that there are varying degrees of irregularity . A gross irregularity in a
trial may vitiate the entire trial.6 Where the irregularity is gross, the conviction is set
aside without a consideration of the merits of the matter. Where the irregularity is
less serious, the merits may be considered separately from the irregularity and a just
decision taken on whether there was a failure of justice.

[11] Those qualified legal practitioners that are given the right of audience before
our courts must be persons of unquestionable honesty and integrity. These qualities,
on the known facts, appear to be lacking in Mr Kwela. It barely needs saying that he
ought to have disclosed the fact that he had been suspended before embarking on
the defence of Mr Mkhize. If suspended legal practitioners are permitted to appear
without consequence before the courts of this country the proper administration of
justice, in my view, will fall into disrepute.

[12] Irrespective of the merits of the defence raised by Mr Mkhize at his trial or the
performance of Mr Kwela in presenting that defence, it seems to me that the
irregularity that occurred is so profound that it invites the intervention of this court.
Indeed, the irregularity 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” …’7


6 S v Naidoo 1962 (4) SA 348 (A) at 354D-F.
7 S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A) at 872G and 875C.
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[13] In my view, it is in the public interest that defences in criminal trials be
conducted by persons in good standing with the regulatory body that governs the
legal profession. Where there is an absence of such good standing in the sense that
the legal practitioner has been prevented by the LPC from continuing to ply his trade,
yet continues to do so, such conduct is so fundamental ly irregular as to nullify the
entire trial proceedings. This is an unfortunate consequence of such conduct, but it is
inevitable when considerations of public interest are paramount, as in this case. In
my view, the convictions of and sentences imposed upon by the regional magistrate
must be set aside. This is also the view of the magistrate who sent the proceedings
through on special review.

[14] Given the passage of time since Mr Mkhize’s conviction , it is not entirely
certain whether the Director of Public Prosecutions will be able to retry Mr Mkhize. It
is possible that witnesses may not be available. Pending the decision on whether to
retry Mr Mkize, he should in my view be released from his prison sentence.

[15] Finally, the registrar of this court is direct ed to send a copy of this brief
judgment to the LPC and to the South African Police Services for further
investigation into the conduct of Mr Kwela.

[16] I would accordingly propose the following order:

1. The convictions of Mr Kwazi Michael Mkhize and the sentences imposed upon
him on 27 June 2023 are set aside.
2. Pending a decision by the Director of Public Prosecutions on whether to
prosecute Mr Kwazi Michael Mkhize de novo, he is to be released from prison and
the registrar of this court is directed to urgently notify the Department of Correctional
Supervision of the terms of this order.
3. A copy of this judgment is to be sent by the registrar of the high court to the
Legal Practice Council, KwaZulu -Natal to consider whether further disciplinary steps
are necessary in respect of the conduct of Mr Attorney Lizwi Joshua Kwela (the
attorney)
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4. A copy of this judgment is to be sent by the registrar of the high court to the
South African Police Services to consider the desirability of investigating whether Mr
Attorney Lizwi Joshua Kwela is guilty of a criminal offence.



___________________________

MOSSOP J




I agree:




___________________________

E BEZUIDENHOUT J