IN THE HIGH COURT OF SOUTH AFRICA
{EASTERN CAPE DIVISION, MTHATHA}
CASE NO:CA2519/2024
BEFORE THE HONOURABLE MADAM MJALI J & RUSI J
MTHATHA ON THIS 25rH DAY OF MARCH 2025
In the matter between:-
BAVUYISE HOPEWELL MAMFENGU
And 2025 -03-2 6
ECLO -UT-001
MAGISTRATE REGIONAL r OURT, BIZANA
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
THE MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES
MA YIGQIZE SPRING NDALA
APPLICANT
_: ~; R~S 1 NDENT
2No RESPONDENT
3Ro RESPONDENT
4 TH RESPONDENT
Having considered the documents filed of record and hearing Advocate Hobbs, for
the Applicant-
IT IS ORDERED THAT:
1. The proceedings in Case no: RCB 09/2024, the State v Bavuyise Hopewell
Mamfengu, are set aside in their entirety and the conviction and sentence are
set aside.
2. The matter is remitted to the Regional Court, Bizana too be heard de novo
before a Regional Court Magistrate other than Mr Gxarisa.
3. The Registrar of this Court must ensure that copies of this judgment are
forwarded to the relevant Legal Practice Council as well as the Office of the
Director of Public Prosecutions for the possible investigation into the conduct
of Mr Ndala and necessary action.
4. A copy of this judgment must be forwarded to the head of prison where the
applicant is incarcerated for his immediate release following the setting aside
of his conviction and sentence in this matter.
T
BY THE ORDER OF COURT
riv.;r 1k , X501/ Ill-
2025 -03-2 6
C_
ECLD-UT-00 t
IN THE IDGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
In the matter between:
BAVUYISE HOPEWELL MAMFENGU
and
MAGISTRATE REGIONAL COURT, BIZANA,
THE NATIONALDIERCTOR
OF PUBLIC PROSECUTIONS
CASE NO: CA 2519/2024
APPLICANT
1 ST RESPONDENT
2 ° RESPONDENT
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
MAYIGQIZE SPRING NDALA
3RD RESPONDENT
4TH RESPONDENT
REVIEW JUDGMENT
1
MJALIJ
1. The right to legal representation is a fundamental right and is key to a fair
trial. Central to the right to legal representation is representation by a properly
qualified legal representative with a right of appearance in the trial court.
Otherwise, the proceedings are vitiated and cannot be said to be in accordance
with justice and must consequently be set aside. In S v Lusu1, Plasket J
(Froneman J concurring ) made the following comment at paragraph 11:
"The right to legal representation is a right that is central to the fairness of criminal trials.
Kroon J, in S v Manguanyana, held that this right was an integral part of our legal system,
and the cornerstone of a civilised system of justice".
At paragraph 12 of the judgment the following appears:
"The purpose of the right to legal representation is explained as follows by Professor
Steytler:
'The right to a lawyer is an essential feature of the right to a fair trial as lawyers
play a critical role in ensuring that the accusatorial system, the foundation of a fair
trial in the common-law tradition, produces a just result. In an adversary
system a court's decision rests primarily on the evidence and
arguments advanced by the parties and the system is predicated on the assumption
that parties will protect their own interests through their vigorous participation in
the proceedings. A fair adversary system is thus dependent on the prosecutor and
the accused participating fully and effectively in order to produce a just decision.
12005 (2) SACR 538 (EC)
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Because effective participation requires legal knowledge and courtroom skills, accused
need the assistance of lawyers w ho have such knowledge and skills. With the
constitutionalisation of criminal procedure, the need for legal assistance is even greater;
not only is a fair trial likely to emerge through skilled participation, but other constitutional
rights, such as privacy, can also be vindicated through the criminal process"'.
2. Sadly, what transpired in the trial of this matter is a far cry from the above
dictum and has culminated in this review application wherein the applicant
seeks an order setting aside the whole of the proceedings in the regional court
Bizana, as well as an order that the proceedings commence de novo before
another presiding officer.
THE FACTS
3. The applicant was prosecuted in the regional court on a charge of rape of an
11-year-old girl. He initially pleaded not guilty to the charge but later changed
his plea and pleaded guilty during the course of the trial. In his statement in
terms of section 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA),
the applicant ( contrary to the penile penetration alluded to in the
complainant's evidence as well as in the indictment), admitted inserting his
finger into the complainant's genitalia. He admitted further that, he changed
his plea freely and voluntarily without any undue influence or duress. He also
admitted that he was in his sober senses when he changed his plea. He stated
further that he was warned of the applicable minimum sentence pertaining to
the charge. Satisfied that he admitted all the elements of the offence, the
regional magistrate convicted the applicant of rape on the basis of his plea and
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sentenced him to life imprisonment, this being the prescribed mm1mum
sentence for the charge that he was convicted of.
4. During trial he was represented by Mr Mayigqize Spring Ndala (Mr Ndala),
an erstwhile candidate attorney under Madikizela & Co, Litha (F60282),
whose contract of articles of clerkship which was for the period 20 July 2021
until 19 July 2023, had been terminated before it expired. It is not clear when
Mr Ndala's contract was terminated. For reasons that follow, the date of
termination of his contract of articles is immaterial. Even assuming that he
was still a candidate attorney at the relevant time, he could not appear in the
regional court without complying with certain requirements in terms of the
Legal Practice Act 28 of 2014 (the Legal Practice Act).
5. The trial in the regional court commenced on 25 April 2023 and was finalised
on 29 August 2023. At the very least on 29 August 2023, Mr Ndala was neither
registered for articles nor an admitted attorney. As such, he had no right of
appearance in any court, let alone in the regional court. His lack of appearance
then formed the basis of the application for the review and setting aside of the
proceedings in the regional court. There is no challenge to the correctness of
the verdict. The only issue is the technical irregularity occasioned by Mr
Ndala's lack of right of appearance at the time he represented the applicant.
6. This Court, consequently, must decide whether Mr Ndala's appearance
rendered the entire proceedings in the regional court invalid and a nullity, or
only that part of the proceedings in which he appeared after the expiry of his
period of practical vocational training without being an admitted attorney was
affected. If only part of the hearing was affected, the further question,
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therefore, is whether it would be competent for the matter to continue, but
with a new legal representative for the applicant. Furthermore, considering
that the applicant was released on bail prior to the proceedings in the regional
court, this Court must consider what his status would be if part or the entire
proceedings in the regional court were to be set aside as invalid.
7. The application was not opposed by any of the respondents but we thought it
prudent to seek the opinion of the Director of Public Prosecutions as well as
that of Mr Ndala as the outcome of this review could impact on the future
conduct of this matter as well as a possible referral of Mr Ndala's conduct to
the Legal Practice Council as well as the Office of the Director of Public
Prosecutions. In this regard we issued the following directive
7.1. In the event of the conviction and sentence being set aside and the
proceedings being ordered to start de novo, what are the DPP's plans
regarding the hearing of this matter without delay?
7.2. The applicant was on bail prior to his conviction, what are the DPP's
views regarding the release of the applicant on bail and at what amount
should bail be granted, if at all? What bail conditions would be
appropriate?
7.3. Mr Ndala must, in a substantive affidavit, state reasons why his conduct
should not be reported to the Legal Practice Council.
8. In response to our query Mr Ndala who appears to be oblivious of the fact that
he had no right of appearance from the very onset, sought to explain why he
continued representing the applicant after his contract of articles had expired.
He stated that he first represented the applicant in 2022 when his office
received instructions from him to move an application for his release on bail.
5
After the applicant was released on bail he continued appearing for him in the
district court during the postponements until his case was transferred to the
regional court. At that time, he was still a candidate attorney and had already
served twelve months of training. He laboured under the impression that he
could appear in the regional court after serving twelve months of articles. Mr
Nkubungu who was assigned to represent the applicant in the regional court
became ill and he was the only one available to represent him.
9. He stated further that due to pressure from the applicant and the court, he
represented the applicant in the regional court. At the time of the
commencement of the trial, he was a candidate attorney in good standing. His
period of articles ended before the matter was finalised. Although he was
aware of his lack of right of appearance, he decided to continue with the matter
to finality to assist the office rather than handing it over to Mr Nkubungu who
was not well and would require transcripts before representing the applicant.
Mr Ndala further pleaded with this Court to give him a second chance and not
to refer the matter to the Legal Practice Council or the National Prosecuting
Authority as that would in his view "be crushing a nut with a sledgehammer".
He still aspires to be an admitted legal practitioner.
10. We have been furnished with the helpful opinion of the Director of Public
Prosecutions for which we are grateful. The thrust of the DPP's views is that
Mr Ndala's appearance in the regional court without properly being qualified
to do so constituted a fatal irregularity and that the whole proceedings should
be set aside. Further to that, the DPP has taken a decision that once the
proceedings are set aside, the applicant will be prosecuted de novo before
another magistrate. The trial of the applicant will be prioritized, and his status
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with regards to bail will have to be dealt with afresh following the setting aside
of the proceedings in the regional court.
11. It is by now trite that fatal irregularity occurs when an accused is represented
by someone who does not meet the requirements and has not been granted
right of appearance in court. There are certain requirements to be met in all
the different courts before one obtains a right of appearance. In the district
courts, the minimum requirement is that one should be a registered candidate
attorney. In terms of section 25(5)(a) of the Legal Practice Act, a candidate
legal practitioner is entitled to appear in any court in the Republic of South
Africa (not being a regional Court, a Division of the High Court, Supreme
Court of Appeal or the Constitutional Court) and before any Board or Tribunal
before which the principal is entitled to appear. Section 25( 5)(b) of the same
Act sets out certain requirements to be met before the candidate legal
practitioner's appearance in the regional Court. Such requirements are, either
practicing as an advocate for at least one year or having undergone one year
of practical vocational training. In addition to that, an application for
appearance in the regional court must be made in writing by the principal and
be granted by the Legal Practice Council to qualify for such appearance.
12. In this matter, no application was made by Mr Ndala's Principal for him to
be granted leave to appear in the regional court. He was therefore precluded
from appearing in the regional court even if his contract of training was still
extant at the commencement of the trial against the applicant. Even worse,
when his period of vocational training expired, he had no right of audience as
a legal representative in any court of law. As such, none of the requirements
set out in section 25(5)(b) of the LPC Act were met by Mr Ndala. His
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appearance on behalf of the applicant under such circumstances constituted a
fatal irregularity sufficient to vitiate the proceedings in the regional court in
their entirety2. Consequently, they must be set aside with an order to
commence them afresh before another magistrate other than Mr Gxarisa who
presided over the impugned proceedings.
13.Mr Ndala's conduct of masquerading as an attorney when he knew very well
that the contrary was true at the time he represented the applicant deserves
censure. Apart from being oblivious of the fact that more than 12 months of
articles was required before one could appear in the regional court, Mr Ndala
was fully aware that he was neither a candidate attorney nor an admitted
attorney during the proceedings in this matter. As such he knew that he had
no right of audience in any court of law as a legal representative. That much
is very clear from his written submissions that he filed in response to this
Court's directive. Even more concerning is the allegation in the applicant's
affidavit that payments were made to Mr Ndala directly. By any standards,
that is conduct that must be brought to the attention of the relevant authorities
for possible investigation.
14. Jn the premises the following order is made:
14.1. The proceedings in Case no: RCB 09/2024, the State v Bavuyise
H opewell Mamfengu , are set aside in their entirety and the conviction
and sentence are set aside
2
• S v H eji & Others 2007 (2) SACR 527, S v Mkize 1988 (2) SA 868 (A), S v Khan 1993 (2) SAC R 118 (N ), S v
N kosi en Andere 2000 (I) SACR 592 (T) and S vStevens en 'n Ander 2003 (2) SACR 95 (T).
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14.2. The matter is remitted to the regional Court, Bizana to be heard de novo
before a Regional court magistrate other than Mr Gxarisa.
14.3. The Registrar of this Court must ensure that copies of this judgment are
forwarded to the relevant Legal Practice Council as well as the Office of
the Director of Public Prosecutions for the possible investigation into the
conduct of Mr Ndala and necessary action.
14.4. A copy of this judgment must be forwarded to the head of prison where
the applicant is incarcerated for his immediate release following the
setting aside of his conviction and sentence in this matter.
G.N.Z. MJALI
JUDGE OF THE HIGH COURT
I agree.
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JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicant:
Instructed by:
E mail:
Adv J. Hobbs
advhobbs(ci),gmai I .corn
Mvelase Attorneys Inc
No. 17 Barn Center
Winnie Madikizela Mandela Street
BIZANA
mvelaseattornevs07 (~~gma il. com
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