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[2014] ZAWCHC 36
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S v Xameni (D 166/2013) [2014] ZAWCHC 36 (17 March 2014)
THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Ref No: 14299
Bellville
Case No: D166/2013
DATE:
17 MARCH 2014
In the matter
between:
STATE
And
ZAMUXOLO XAMENI
ACCUSED
Coram: ROGERS &
BOQWANA JJ
Delivered: 17
MARCH 2014
JUDGMENT
ROGERS J:
[1] This matter has
been referred to this court by the presiding magistrate, prior to
conviction or sentence, because he considers
that a gross
irregularity has occurred in the proceedings.
[2] The accused has
been charged with one count of theft allegedly committed on 16
January 2013. He was arrested on 14 February
2013 but released on
bail shortly thereafter. At a further appearance on 20 March 2013,
where the case was remanded, the accused
was represented by a legal
aid attorney. However, on 30 May 2013 a person describing himself as
‘Advocate Silinga’
came on record for the accused. The
trial itself began on 6 November 2013, with Silinga still
representing the accused. The accused
pleaded not guilty and offered
no explanation for the plea. The prosecutor called the complainant,
and her evidence was completed
on that date, including
cross-examination by Silinga. The case was then adjourned to 9
December 2013 for further evidence on behalf
of the state.
[3] On 9 December
2013 Silinga failed to appear. It appears from the magistrate’s
report that the magistrate was told by the
accused that Silinga had
sent him to court with copies of the statements from the docket. It
came to light that Silinga, although
he was previously an admitted
advocate, was struck off the roll by this court on 30 October 2013.
This court’s judgment in
the striking-off (Case 9988/12) has
the neutral citation
[2013] ZAWCHC 171.
The criminal case in the
court a quo was postponed on the basis that the accused would seek
legal aid.
[4] The magistrate
expresses the concern that the accused was not properly represented
during the trial thus far. Silinga, he considers,
misled both the
magistrate and the accused. The magistrate’s opinion is that
the accused would not have appointed Silinga
if he knew the latter
was no longer an admitted advocate; and that an injustice has
occurred with potential prejudice to the accused.
The magistrate thus
asks that the proceedings of 6 December 2013 be set aside and that
the matter be referred back to the magistrate’s
court for trial
de novo.
[5] Although the
magistrate has purported to refer this matter to the high court in
terms of
s 304(4)
of the
Criminal Procedure Act 51 of 1977
, that
section applies only where a sentence has already been imposed.
Section 304A
is also not applicable because it applies only after
conviction. In the present case there has been neither conviction nor
sentence.
[6] This does not
mean, however, that this court may not deal with the matter. The high
court, quite apart from the review jurisdiction
conferred by
s 22(1)
of the
Superior Courts Act 10 of 2013
, has an inherent jurisdiction
to review the proceedings of lower courts, and this is a power which
in appropriate though exceptional
circumstances will be exercised in
the course of uncompleted proceedings (see S v Khalema & Others
Cases
2008 (1) SACR 165
(C) paras 7-15; Du Toit & Others
Commentary on the
Criminal Procedure Act at
pp 30-5 – 30-6).
[7] It appears from
this court’s judgment in the striking-off application that the
application was launched by the Cape Bar
Council during May 2012.
Silinga filed a notice of opposition but did not initially file
answering papers. On 18 October 2013,
the date on which the
application was to be heard, Silinga filed a late answering affidavit
and was represented by counsel. The
court refused Silinga’s
application for a postponement but received the late answering
affidavit. The application was then
argued with reference to the
founding and answering papers. The court concluded that the
allegations of misconduct and unprofessional
behaviour had been
established. The misconduct included the fact that in proceedings
before three separate magistrates Silinga
falsely claimed to be
acting on the instructions of an attorney whose name he furnished, in
circumstances where he had not been
briefed by an attorney at all.
Another of the complaints found to be established was that Silinga
had procured his appointment
as the executor in a deceased estate
under false pretences and had then misappropriated a sum of money
from the estate bank account.
This court, in a reserved judgment
delivered on 30 October 2013, found that the only appropriate
sanction was a striking-off.
[8] About a week
later Silinga appeared in the present proceedings and represented the
accused in entering a plea of not guilty
and cross-examining the
state’s first witness. The magistrate is undoubtedly correct in
his assumption that the accused instructed
Silinga on the assumption
that he was an admitted advocate lawfully entitled to practise as
such. It is safe to assume that Silinga
failed to disclose to the
accused that the position changed on 30 October 2013. Silinga by
conduct also misrepresented to the magistrate
on 6 November 2013 that
he was still an advocate. Furthermore, in purporting to represent the
accused as an advocate, Silinga was
prima facie committing a criminal
offence in terms of
s 9(1)
of the
Admission of Advocates Act 74 1964
.
That section provides inter alia that no person whose name has been
removed from the roll of advocates shall ‘in any manner,
directly or indirectly, practise as an advocate or hold himself out
as, or pretend to be, or make use of any name, title, addition
or
description implying or tending to induce the belief that he is, an
advocate or is recognized by law as such’.
[9] It is a
fundamental right that an accused is entitled to legal
representation. This means representation by a person entitled
by law
to act as an attorney or advocate. The accused in the present case
has been denied that right by Silinga’s reprehensible
conduct.
I do not propose to consider whether the manner of Silinga’s
conduct of the cross-examination of the state’s
first witness
was or was not competent. It is impossible to say what prejudice the
accused might not have suffered by virtue of
being advised and
represented by a person who has been found by this court to be
untrustworthy and unfit to practise as an advocate.
In S v Mkhise &
Other Cases
1988 (2) SA 868
(A), where the accused had been
represented by a person passing himself off as an advocate, the
court, after a full review of relevant
authorities, concluded that it
was in the public interest that the defence in a criminal trial be
undertaken by a person duly authorised
to practise as an advocate and
that the lack of such authorisation must be regarded as ‘so
fundamental an irregularity as
to nullify the entire trial
proceeding’ (at 875G). Although that was a case where there
had been convictions and sentences,
there are a number of instances
where this principle has been acted upon prior to conviction by way
of review proceedings (see,
for example, S v La Kay
1998 (1) SACR 91
(C) and S v Borias [2013] ZAGPJHC 13).
[10] A gross
irregularity thus occurred in the proceedings of 6 November 2013. It
would self-evidently serve no purpose to allow
the irregular
proceedings to run their course before dealing with the matter.
Justice demands that this court intervene in the
matter. Such
interference is justified by
s 22(1)(c)
of the
Superior Courts Act
(interference
on grounds of ‘gross irregularity in the
proceedings’) and in any event by this court’s inherent
jurisdiction.
[11] Through no
fault of his own, the magistrate who presided in the court a quo has,
during the course of the irregular proceedings,
heard evidence on the
merits of the case. It is thus appropriate to direct that the
remitted case be heard by another magistrate.
[12] I thus make the
following order:
[a] The proceedings
conducted in this matter in the court a quo on 6 November 2013 are
set aside and the matter is referred back
to the court a quo for
trial de novo before another magistrate.
[b] The registrar is
directed to refer this judgment to the Western Cape office of the
Director of Public Prosecutions for such
action as that office may
consider appropriate in regard to Mr Silinga’s prima facie
violation of
s 9(1)
of the
Admission of Advocates Act 74 of 1964
.
[c] The registrar is
also directed to refer this judgment to the chairperson of the Cape
Bar Council.
BOQWANA J:
[13]
I concur.
ROGERS J
BOQWANA J