IN THE IDGH COURT OF SOUTH AFRICA
(EASTERN CAPE DMSION, MAKHANDA)
1
NOT REPORTABLE
CASE NO.: CA & R NO. 91/2025
DATE DELIVERED: 22 JULY 2025
In the matter between:
THE STATE
and
THANDENKOSIDLAMINIZILO
REVIEW JUDGMENT
GQAMANAJ
[I] Th is matter was initially sent to this court on or about 3 June 2024 on automatic review by
the Magistrate, East London. On 4 June 2024, my colleague, Bands J considered it and issued a
certificate that the proceedings were in accordance with justice.
2
[2] Almost a year thereafter, it was again sent to us on special review by the Regional Magistrate,
East London. On the referral letter on special review, the Magistrate held the view that there was
a gross irregularity in the trial proceedings because the accused was represented by an attorney,
Mr Somtsewu who had no right of appearance.
(3) Briefly the facts are as follows: the accused was charged and convicted of rape and
kidnapping. He was sentenced to 12 years' imprisonment for rape and 3 years' imprisonment for
kidnapping. He was also declared unfit to possess a firearm in terms of section l 03( 1) of Act 60
of2000.
[4] The issue at hand is whether the trial proceedings were irregular due to the fact that the
accused was represented by a person who had no right of appearance.
[5] It is evident from the information at our disposal that Mr Somtsewu was admitted as an
attorney on J 4 February 2017, and was registered as a Professional Assistant with Hlutwa
Attorneys. However, the said firm of attorneys was closed since 13 July 2021. 1
[6) At the time of the commencement of the trial herein on 2 March 2023, he had no right of
appearance.
[7] I must add further that from the opinion received from Ms Turner, Deputy Director of
Public Prosecutions, Makhanda, Mr Somtsewu has no right of appearance. Further and more
disturbing is the apparent prevalence of this practice. According to the report of Ms Turner,
criminal proceedings which are otherwise in accordance with justice are too often reviewed and
set aside because of "legal representatives" who appear in court despite them not having the right
of appearance. It is the responsibility of the court to put an end to such conduct before it spreads
like wild fires.
[8] The legal position is clear that only persons who have been admitted and enrolled to practice
1 See letter from the Legal Practice Council, Eastern Cape Provincial Office dated 12 May 2025.
3
as legal practitioners who have a right of appearance in court. 2
[9] Furthermore, in tenns of section 33(1) (a) of the Legal Practice Act, 28 of 2014:
"No person other than a practising legal practitioner who has been adm itted 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 similar institution in which only legal practitioners are
entitled to appear."
[l O] As indicated above Mr Somtsewu is a non-practising attorney and as such he had no right of
appearance when he represented the accused during trial proceedings under review. Accordingly,
his representation of the accused was a gross irregularity which renders the trial proceedings a
nullity.3
(11] In the circumstances, the follow ing order is issued:
1. The criminal proceedings against the accused in the Regional Court, sitting in East
London, under case no: R C 2/42/22 are reviewed and set aside.
2. The matter is remitted for trial de novo before a different magistrate.
3. The Registrar must forward a copy of this judgment to the Legal Practice Council at
the Eastern Cape office for investigation against Mr Somtsewu for bis conduct.
NGQAMANA
JUDGE OF THE HIGH CO U RT
2 Section 25 (I) and (2) of the Legal Practise Act, 28 of 2014. 3 See S v Leon King, unreportedjudgm ent of Roberson AJ, Case No : CA&R 54/2025 dated 15 ApriJ 2025 at para 18
and the cases cited therein.
4
I agree
~ ,O)lCE~BU
ili~·OF THE HIGH COURT