South Africa: High Courts - Gauteng

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IN THE HIGH COURT OF SOUTH AFRICA

(LOCAL CIRCUIT DIVISION FOR DELMAS CIRCUIT DISTRICT)

DELMAS

CASE NO: CC644/05

DATE: 2006-02-27

In the matter between

THE STATE

and

E A MAKGETLANENG Accused no 1

M B MAHLANGU Accused no 2

T E NDLELA Accused no 3

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J U D G M E N T

________________________________________________________________

HUSSAIN, J: In this matter the accused, Mr Makgetlaneng, Mr Mahlangu and Mr Ndlela, are charged with one count of housebreaking, one count of theft, two count of murder, one count of attempted murder, three counts of rape, one count of kidnapping as well as two counts relating to the unlawful possession of arms and ammunition.

The matter was set down for the whole of this week by the National Director of Prosecutions' office. Mr Preis appears on behalf of the Director of Prosecutions. The state was ready to proceed to trial this morning. The witnesses are available at present and the matter would have been dealt with during the course of this week. This morning Mr Letwaba, an attorney, appeared and inform me that he appears for all three accused. He was appointed by the Pretoria Justice Centre of the Legal Aid Board. The person dealing with this matter in the Justice Centre is Advocate Carla Van Venendal. The attorney consulted with all three accused on Saturday. He consulted with the accused this morning again and it turns out that he is unable to represent all three accused. This is due to a conflict of interest between them.

This has resulted in this matter being postponed today. The case is a matter which goes back to June 2004. All three accused are in custody. I am informed by counsel for the state that the witnesses as well as the complainants and the deceased's family have expressed frustration that this matter is not going to proceed this week. This is an unfortunate set of circumstances and the people to blame must be the Justice Centre of the Legal Aid Board. This is not the first time that this has happened. This has happened on more than one occasion in this court, each time the consequence being that the trial has to be postponed. This results in a waste of resources and causes frustration with both the accused as well as the witnesses. This week this case could have proceeded to its finality. It now has to be postponed so that other counsel may be briefed by the Justice Centre of the Legal Aid Board. We have lost a week of court time. This results in a frustration of the administration of justice.

I was informed by the Judge President of this division, the Honourable Mr Justice Ngoepe, that there is backlog of cases in the circuit court. In fact he was requested by the National Director of Prosecutions to provide extra judges for the circuit court. It does not help the administration of these court when cases are unnecessarily postponed over and over again. It is even more frustrating when postponements happen when the state is ready to proceed to trial. In my opinion the Legal Aid Board is not carrying out its duties properly. A cursory glance at the charge sheet would immediately alert a person of modest competence that this was a case which might require the services of three different legal representatives. A reading of the charge sheet together with a summary of the substantial facts, in terms of section 1443(a) of act 51 of 1977, would immediately alert the Legal Aid Board to the potential of a conflict of interest arising.

The Legal Aid Board does not appear to have applied their minds to this aspect when instructing legal representatives for the accused. As I have stated this has happened time and again in this division. The Legal Aid Board is, in my opinion, responsible for the postponement of this case today, as well as the waste of resources and the frustration of the administration. It will assist the administration of justice in these courts if the Legal Aid Board had some system whereby they can make an assessment of the requirements of a case in order to determine the number of legal representatives they should appoint. No such system appears to be in place at the present time.

I am going to refer my comments to the Head of the Legal Aid Board, the Judge President of this division as well as to the office of the National Director of Prosecutions. This case is then postponed for trial, this court, from 12 to 15 June 2006. The accused will remain in custody.

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