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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

High Court Ref. No: 69\06

Magistrate’s Serial No: 02/06

Review Case No: scc268/2005

Magistrate:

JOHANNESBURG

GRAHAM SIFISO MASONDO

REVIEW JUDGEMENT

MABESELE AJ

The accused appeared in the Johannesburg regional court on 9 November 2005 for a bail application. He was represented by T. Mabaso who presented himself as a properly admitted attorney. After arguments had been presented by Mabaso and the state the magistrate dismissed the application.

Subsequent to the dismissal of the aforementioned application Advocate Muir appeared on behalf of the accused and contended that Mabaso who had represented the accused was not a properly admitted and practising attorney.

In support of this contention, Advocate Muir submitted an affidavit dated 6 January 2006 and deposed to by Johannes Grobler, Director of the Law Society of the Northern Provinces.

2.

The affidavit reads as follows:

“I the undersigned,

MARTHINUS JOHANNES STEPHANUS GROBLER

do hereby make oath and say that:

1.

I am the Director of the Law Society of the Northern Provinces.

2.

I have access to the records of the Law Society of the Northern Provinces to all admitted and practising attorneys in the Northern Provinces and such records are subject to my supervision.

3.

After perusal of the aforementioned records, it appears that Mrs Linda Carrol Mabaso (ID 641225 2118 089) was admitted as an attorney on the roll of attorneys in the Northern Provinces on 14 December 2001.

4.

The name of Mr Hector Ernest Themba Herold Mabaso (ID 550614 5869 088) is not noted as an attorney on the records of the Law Society of the Northern Provinces”.

It is evident from the affidavit that Mabaso is not a properly admitted and practising attorney. The result is that he has no right of appearance. This means that the accused was not properly represented. It follows therefore that the accused was misled in exercising his right to legal representation

3.

improperly. It is proper and in accordance with the dictates of justice in my view, therefore, to again afford the accused an opportunity to properly exercise his right to legal representation. Failure to afford the accused that right will clearly result in miscarriage of justice.

Due to the urgency of this matter I did not invite written comments from the office of the Director of Public Prosecutions. However, I have discussed it with the Deputy Director of Public Prosecutions, Mr Z.J Van Zyl. He agrees with me that this matter should commence de novo.

In the premises I make the following order:

1. The proceedings in the Court a quo are set aside.

2. The accused’s bail application should commence de novo before

another magistrate.

_________________

M.M MABESELE

(Acting Judge of the High Court)

I concur

_____________________

G.S.S MALULEKE

(Judge of the High Court)

Date of Judgment: 10/02/2006

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