REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN )
Case No: 65/2025
Magistrate’s Court Case No: H46/2023
In the matter between:
THE STATE
and
HALFANI RAJABU Accused
Judgment delivered on: 1 April 2025
REVIEW JUDGMEN T
MTHIMUNYE , AJ
[1] This matter came before this court by way of special review. The referral of the
matter to this Court was at the instance of the presiding District Court Magistrat e.
The accused, Mr Halfani Rajabu, is facing one count of contravening the
provisions of Sectio n 5(b ) of the Drugs and Drug Trafficking Act 140 of 1992
(Read with the provisions of Section 51(2) of the Criminal Law Amendment Act
105 of 1997) – Dealing in Drugs. Alternatively, for contravening the provisions of
Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 – Possession of
Drugs.
[2] In the court a quo , on his first appearance , the accused was represented by Mr
Soeker who remained on record until 04 June 2024 when his mandate was
terminated. On the same day , the accused ’s newly appointed legal
representative Mr Scott came on record for the accused .
[3] On 13 November 2024 , the charge was put to the accused and the accused
subsequently pleaded not g uilty to the main and alternative charge . The court
proceeded with the hearing of evidence of the first witness, Constable
Manye besi. However , due to the inconsistencies in the interpretation of the
Swahili interpreter , the matter was then postponed to 23 January 2025 for the
record to be transcribed and for the replacement of the Swahili interpreter.
[4] On 23 January 2025 , Mr Scott failed to attend court. Mr V an Vught , the new legal
representative of the accused, advised the court that there was a reason why Mr
Scott was not present at court. Mr Van Vught further informed th e court that he
was attending to a few of Mr Scott’s matters when it came to his attention that Mr
Scott was struck from the roll and that he in fact, could not appear in court for the
duration of this trial.
[5] Mr V an Vught in consultation with the accused expressed the view that the
proceedings should be sent to th e High Court on special review to be set aside
and that it be ordered t hat the proceedings should start de novo. The State and
the presiding magistrate agree d with the suggestion of Mr Van Vught. The court
then postponed the matter to 9 April 2025 for the High Court to decide on the
further conduct of this matter.
[6] The question that arises in this matter is whether the proceedings must be set
aside owing to the lack of authori ty of Mr Scott to appear on behalf of the
accused . Furthermore , whether his conduct constitute d a gross irregularity that
vitiated the proceedings .
[7] In terms of section 24(1) of the Legal Practice Act 28 of 20 14 (“LPA”), a person
may only practice as a legal practitioner if he or she is admitted and enrolled to
practice as such in term s of this Act. Section 1 of the LPA defines a legal
practitioner as an advocate or attorney admitted and enrolled as such in terms of
the s ection 24 or 30 of the LPA. Section 24(1) of the LPA provide s that a person
may only practice as a legal practitioner if he or she is admitted and enrolled to
practice as such in terms of this Act.
[8] While on the other hand, s ection 33(4)(a) of the L PA provides that:
“(4) A legal practitioner who is struck off the Roll or suspended from practice
may not –
(a) render services as a legal practitioner directly or indirectly for
his own account, or in partnership, or association with any other
person, or as a member of a legal practice; or
(b) be employed by, or otherwise be engaged, in a legal practice
without the prior written consent of the Council, which consent may
not be unreasonably withheld, and such consent may be granted
on such terms and conditions as the Council may determine. ”
[9] Our adversarial system of litigation is fundamentally based on licensed legal
practitioners whose role is to assist the courts in executing their adjudicative
functions. When a legal practitioner is either suspended from practice or removed
from the roll of practicing advocates, they forfeit their right of audience in court.
Therefore, when an individual without this right appears in court claiming to
represent a client, such an appearance compromises the integrity of the
proceedings and taints the proceedings with gross irregularity .
[10] In the matter of S v Mk hise and Others 1988 (2) SA 868 (A), Sebastian de
Jager , who had not been admitted as an advocate, purpo rted to represent
persons before the court while masquerading as an advocate. The Supreme
Court of Appeal found that the lack of authority in criminal proceedings to be so
fundamental and irregular as to nullify the entire trial proceedings .
[11] It is quite clear from the provision s of the LPA, that Mr Scott being struck off the
roll of advocates was not allowed to render any services to the accused . In my
view, having regard to all the relevant considerations discussed above, Mr Scott
appeared in the criminal matt er under review, in contravention of section 24 and
33 of the LPA. Thus, these proceedings must be set aside in toto. I am mindful
that starting the matter de novo may be prejudicial to the accused’s right to a
speedy trial.
[12] However , I share the views expressed in S v Van Eden 2018 (2) SACR 218
(NCK) at para 46 , where the court stated :
“In my view this 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” and “when
considerations of public interest are paramount, hardship in a particular case,
should it arise, is to be regretted but cannot be avoided.”
[13] The proceedings in the c riminal trial under review stand to be reviewed and set
aside in toto. In the result , I would make the following order :
13.1 The criminal proceedings against the accused in the Magistrate’s Court in
the District of Bellville, under case number H46/2023 are hereby reviewed and
set aside in their entirety.
13.2 A decision whether to re -instate prosecution in the criminal trial is left to
the discretion of the Director of Public Prosecution, Western Cape.
13.3 Should the prosecution be re -instated; the trial is to be conducted before a
different magistrate.
S MTHIMUNYE
JUDGE OF THE HIGH COURT
I agree and it so ordered :
J LEKHULENI
JUDGE OF THE HIGH COURT