IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 39/2025
Specialised Commercial Crime Court , Bellville Case No: SH7/25/23
In the matter between:
THE STATE
and
NIZAAM HEN RY Accused
REVIEW J UDGMENT
NUKU, J
[1] The accused, Ms Nizaam Henry, is facing one count of corruption and one count
of money laundering at the Specialised Criminal Crime Court, Bellville and had been
represented by Mr P Scott (Mr Scott ) until 4 November 2024 when th e matter was
postponed, after hearing argument, for judgment on 11 December 2024.
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[2] Mr Scott did not attend court on 11 December 2024. Instead, the state prosecutor
advised the court that it had come to his attention that Mr Scott had been struck off the
roll of advocates as far back as October 2021 and that in his view Mr Scott was not
authorised to represent the accused in the proceedings. The state prosecutor
expressed the view that the proceedings should be sent to the High Court for special
review and sought guidance from the presiding officer. The state prosecutor further
advised tha t he had received communication from Mr Scott during the course of that
morning wherein the latter advised that he would no longer be representing the accused
because of the judgment against him that was delivered in October 2021.
[3] The presiding office r expressed concern that the accused had been represented
by a person who had no authority to do so and advised the accused that the matter
would be referred to this court on special review. He postponed the matter to 24 April
2025 for the decision of this court regarding the further conduct of the matter.
[4] This court’s power to intervene in uncompleted criminal proceedings in the lower
courts was stated by Ogilvie Thom pson JA in Wahlhaus1 as follows:
‘It is true that, by virtue of its inherent power to restrain illegalities in inferior
courts, the Supreme Court may, in a proper case, grant relief – by way of review,
interdict, or mandamus – against the decision of a magistrate’s court given
before conv iction… This, however, is a power which is to be sparingly exercised.
It is impracticable to attempt any precise definition of the ambit of t his power; for
each case must depend on its own circums tances. The learned authors of
Gardiner and Lansdown (6th ed, vol 1, p 750 state:
“While a superior court having jurisdiction in review or appeal will be slow
to exercise any power, whether by mandamus or otherwise , upon
unterminated course of proceedings in a court below, it certainly has the
1 Wahlhaus And Others v Additional Magistrate, Johannesburg And Another 1959 (3) SA 113 (A)at 119 H-
120
power to do so, a nd will do so in rare cases where grave injustice might
otherwise result or where justice might not by other means be attained …”
In my judgment, that statement correctly reflects the position in relation to
unconcluded criminal proceedings in the magist rates’ courts. I would merely add
two observations. The first is that, while the attitude of the Attorney -General is
obviously a material element, his consent does not relieve the Superior Court
from the necessity of deciding whether or not a particular case is an appropriate
one for intervention. Secondly, the prejudice, inherent in an accused’s being
obliged to proceed to trial , and possible conviction, in a magistrate’s’ court …’
[5] The approach of the High C ourts , in completed criminal proceedings, when
dealing with reviews based on the fact that the person who represented an accused
person was not an authorised legal practitioner has been uniform. In this regard Olivier
J stated the following in S v Van Eeden2 that “There is a long line of cases in which it
was held that lack of authorisation to appear on behalf of accused persons in criminal
proceedings constitutes a fatal irregularity, regardless of the fact that the
representatives concerned had the required a cademic qualifications, and that such an
irregularity necessitated the rescission of those proceedings, without regard to the
merits .”
[6] On the authority of S v Van Eeden and the cases referred to therein the
proceedings against the accused are destined to be rescinded , without reference to the
merits , on the basis that Mr Scott who represented the accused lacked authorisation to
do so. The implications of this court not intervening at this stage, when it has the power
to do so, is that the accused would be forced to participate in meaningless proceedings
that will invariably be reviewed and set aside. The prejudice inherent therein is self -
evident . To allow the proceedings against the accused to continue until finalisation
would serve no pur pose. In my view, this is one of those matters where the intervention
of this court is warranted despite the fact that the proceedings have not been
2 S v Van Eeden 2018 (2) 218 (NCK) at para [27] (footnotes omitted)
concluded . The result is that the criminal proceedings against the accused should be
set aside and start from the begin ning.
[7] In the result I make the following order:
7.1 The criminal proceedings against the accused in the Regional Division of
the Western Cape held at the Specialised Commercial Crime Court, Bellville
under case number SH 7/25/23 are hereby reviewed, set aside and are to start
from the beginning.
___________ __________
LG NUKU
JUDGE OF THE HIGH COURT
I agree
_____________________
N E RALARALA
JUDGE OF THE HIGH COURT