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A66/10

IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)

CASE NO. 707/04

REVIEW CASE NO. LR 34/2008/JC

HIGH COURT REF NO. 1917

Date: 29/1/2010

in the matter between:

THE STATE PLAINTIFF

-and-

PRINCE CHUKWU 1^st DEFENDANT

OKECHUKWA JOHN OKAVOR 2^nd DEFENDANT

JUDGMENT

POSWA J,

[1] This is a judgment in a special review emanating from a Magistrate Court, in the Magistrate district of Phalaborwa. It is pursuant to the following letter from the Magistrate;

"SPECIAL REVIEW: CASE NO. 707/2004:

1. the above matter refers.

2. Enclosed herewith please find record of proceedings in respect of the above-mentioned matter

a Candidate Attorney acting on behalf of his Principal appeared on behalf of Accused 1 and 2 in this matter.

When the trial commenced his right of appearance was valid. It expired during the trial. He continued to appear before court even after his right of appearance had expired.

When the irregularity was discovered he was now an Admitted Advocate of the High Court of South-Africa duly instructed by his former Principal to continue with the trial.

The question is whether when he appeared before court after his right of appearance had expired was that an irregularity that vitiated theproceedings.

There are conflicting decisions in this matter in accordance with Case Law that I cited on record.

Whilst it is correct that unterminated proceedings should sparingly [be] referred to the High Court, it is equally correct that in casu there are sufficient grounds for the interlocutory intervention by the High Court at this stage for guidance on this matter.

Justice cannot be attained by other means except by removal of this boom through the intervention of the High Court."

The letter is signed by the Magistrate, Phalaborwa.

[2] An enquiry was forwarded by me, the Reviewing Judge, to the Magistrate, indicating that the record of the proceedings had not been attached to the Magistrate's letter. On subsequent receipt of the transcript of the proceedings (525 pages, in 4 volumes), 1 invited the assistance of the office of the Director of Public Prosecutions for its comment thereon.

[3] in view of the importance of its input and fullness of its contents, I have decided to quote, in full, the entire response from the DPP's office. It reads:

"1. The two accused, a 28-year old male, and a 29 year old male, respectively, were charged in the Magistrate's court of Phalaborwa, with (6) counts of contravening section 5(b) of the Drugs and Drug Trafficking Act, Act 140 of 1992, alternatively six (6) counts of contravening section 4(b) of the aforementioned Act. Both accused were represented by Mr Chabelang Isaac Mokgalaka, a candidate attorney acting on behalf of his principal.

2. it appears that during the course of the proceedings before the court a quo, it came to Sight that Mr Mokgalaka was an admitted advocate of the High Court of South-Africa and was, as such, duly instructed to proceed with the trial by his former principal. The matter was, therefore, sent on special review to the High Court, Transvaal Provincial Division, to gain clarity on the legal position regarding the predicament of the court a quo.

3. This office has been asked to comment by His Honourable the Reviewing Judge. According to correspondence received from the Law Society of the Northern Provinces, Mr Mokgalaka had entered into a contract of articles of clerkship with his principal on 1 February 2004 for two (2) years. The contract had duly expired on 31 January, 2006. Mr Mokgalaka had not been admitted on the date of signature that appeared on the correspondence, to wit 26 June, 2007. It appears, however, that Mr Mokgalaka was admitted as an advocate on 25 June, 2007.

4. When the trial commenced on 4 April, 2006 with the plea and subsequent proceedings, Mr Mokgalaka did not have right of appearance before the court a quo in terms of section 8(4)(a) of the Attorneys Act, Act 53 of 1979, for a further six months from the date of the expiration of the contract of articles of clerkship.'

"8(4)(a) Any candidate attorney who is entitled to appear as contemplated in subsection (1), shall at the expiry of his articles or contract of service, and provided he remains in the employ of the attorney who was his phncipal immediately before such expiry, or provided he remains in the service of the law clinic or the Legal Aid Board concerned, as the case may be, remain so entitled until he is admitted as an attorney, but not longer than six months."

The question thus remains as to the legality of the proceedings before the court a quo after 31 July, 2006?"

5. Section 8 of the Attorneys Act, Act 53 of 1979 reads as follows;

'(1) Any candidate attorney who has satisfied all the requirements for the degree referred to in paragraph (a) of section 2 (1), or for the degrees referred to in paragraph (aA) of that section, or for a degree or degrees referred to in paragraph (aB) of that section in respect of which a certification in accordance with that paragraph has been done, shall be entitled to appear in any court, other than any division of the Supreme Court, [now High Court], and before any board, tribunal or similar institution in or before which his or her principal is entitled to appear, instead of or on behalf of such principal, who shall be entitled to charge the fees for such appearances as if he or she himself or herself had appeared: Provided that such a candidate attorney shall not be entitled to appear in a court of a regional division established under section 2 of the Magistrates' Courts Act, 1944 (Act 32 of 1944), or a Divorce Court establishment under section 10 of the Administration Amendment Act, 1929 {Act 9 of 1929), unless he or she-

(i) has previously practised as an advocate for at
least one year; or

(ii) has served for at least one year under his or her
articles or contract of service; or

(Hi) has at least one year's experience as a state

advocate, state prosecutor or Magistrate.
(2).......

(3) The secretary of the society concerned shall, upon the written application of the principal of any candidate attorney referred to in subsection (1) and upon the payment of the fees prescribed under section 80 (bA), issue to such candidate attorney a certificate that he complies with the relevant provisions of subsection (1).

(4)(a) Any candidate attorney who is entitled to appear as contemplated in subsection (1), shall, at the expiry of his articles or contract of service and provided he remains in the service of the law clinic or the Legal Aid Board concerned, as the case may be, remain so entitled until he is admitted as an attorney, but not for longer than six months, (b) The provisions of section 6 shall apply mutatis mutandis in respect of a former candidate attorney referred to in paragraph (a).

(5) In the event of the death, mental illness, insolvency, conviction for crime, imprisonment for debt, suspension, striking off the roll or discontinuance of practice of the attorney who was the principal of a former candidate attorney referred to in subsection (4) immediately before the expiry of his articles, such former candidate attorney shall, with the written permission of the secretary of the society of the province in which the candidate attorney served under articles, be entitled to take service with any other attorney and to appear as contemplated in subsection (4) under the supervision of that attorney.'

(6) An irregularity of this nature may amount per se to a failure of justice which vitiates the proceedings. In S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A) at 871G - J, Kumleben, AJA held the following regarding irregularities of this nature:

'It is a well-established principle that an irregularity in the conduct of a criminal thai may be of such an order as to amount per se to a failure of justice, which vitiates the thai. (I shall, for convenience, refer to an irregularity having such effect as a 'fatal irregularity'.) On the other hand, less serious and less fundamental irregularities do not necessarily have that effect. As Holmes, JA said in S v Naidoo 1962(4) SA 348(A) at 354D-F, in reference to such irregularities:

"Broadly speaking they fall into two categories. There are irregularities (fortunately rare) which are of so gross a nature as perse to vitiate the trial. In such a case the Court of appeal sets aside the conviction nor an acquittal on the merits. There remains thus neither a conviction without reference to the merits, and the accused can be re-tried in terms of s 370(c) of the Criminal Code. That was the position in Moodie's case [1961 (4) SA 752 (A)], in which the irregularities of the deputy sheriff remaining closeted with the jury throughout their two-hour deliberation was regarded as so gross as to vitiate the whole trial. On the other hand there are irregularities of a lesser nature (and happily even these are not frequent) in which the Court of appeal is able to separate the bad from the good, and to consider the merits of the case, including any findings as to the credibility of witnesses."

(7) Various cases reflect the courts' views on the regularity of proceedings where the legal representative does not have a right of appearance - S v Khan 1993(2) SACR 118(N); S v La Kay 1998(1) SACR 91(K); S v Gwantshu and Another 1995(2) SACR 384(E); S v Nkosi and Others 2000(1) SACR 592(T). In all of the aforementioned cases, the proceedings were set aside due to a fundamental irregularity, to wit the unlawfulness (sic) of the legal representative's right of appearance.

8. The accused person's right to legal representation is entrenched in section 35(3) of the Constitution of the Republic of South Africa, Act 108 of 1996 ["The Constitution"], which reads as follows:

'35(3) Every accused person has a right to a fair trial, which includes the right-fa)

(b) ...;

(c)

(d)

(e) ...;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g) to have a legal practitioner assigned to the accused person by the State and at State

expense, if substantial injustice would otherwise result, and to be informed of this right promptly;' Section 1 of the Attorneys Act, Act of 1979, defines a practitioner as 'any attorney, notary or conveyancer'. A candidate attorney is not included in this definition. A candidate attorney is defined as 'any person bound to serve under articles of clerkship or to perform community service under a contract of service'. It is therefore submitted that when Mr Mokgalaka represented the accused during the period of 1 August, 2006 to 26 June, 2007, he was not a 'legal practitioner³ as provided for in the Constitution. It follows, therefore, that the accused's right to a fair trial was negated by the fact that they were represented by a candidate attorney without a right of appearance.

9. In view of the aforementioned, it is respectfully submitted that the proceedings ought to be set aside." (Emphasis added)

[4] That wefl-presented submission was by Senior State Attorney, J Cronje. It received the qualified concurrence of the Deputy Director of Public Prosecutions, E. Leonard, SC, which reads as follows:

"1. I agree that the submissions made are legally sound.

2. However, whilst the irregularity is of a technical nature nothing happened to question the capability of Mr Mokgalaka in representing the 2 accused persons. Should the proceedings in this sehous matter be set aside, a re-trial is eminent. The accused will again have to attend court and will have to pay for legal fees. Costs will again be incurred to find an Ibo interpreter

[that being the language chosen understood by the accused persons] and to arrange for his/her services. It is therefore suggested that only the portion of the trial that was dealt with by Mr Mokgalaka without having right of appearance be set aside and not the whole trial. Alternatively, it is submitted that it will be in the interests of justice to continue with the trial as the irregularity is not of such gross nature [as] to vitiate the trial. Mr Mokgalaka is an admitted advocate and was capable of handling the defence" (Emphasis added).

[5] As the Deputy Director of Public Prosecutions states, legal submissions by the senior state advocate cannot be faulted, technically speaking. In S v Nkosi en Andere 2000(1) SACR 592 (T), Hartzenberg J, with Preiss J, concurring, dealt with this very same issue, the right of appearance in terms of ss (B)(1) and (3) of the Attorneys Act 53 of 1979 ("the Act"). The gravamen of the issue dealt with by the Court in that case was with regard to the implications of the requirement of a certificate in terms of s. 8 of the Act. The question for determination was whether the purpose of the certificate mentioned in s. 8 (3) is merely to prove that the candidate attorney involved has a right to appear in court. Although the judgment is in Afrikaans, I have read through it and find that the English headnote somewhat captures the issues involved. It reads;

"Sections 8(1) and (3) of the Attorneys Act 53 of 1979 which provides (sic) for the right of appearance of candidate attorneys ought not to be interpreted in isolation. Subsection (1) makes it clear that the right to appear is not an unqualified right; the candidate attorney can only appear for and on behalf of his principal. The principal has a real interest in the question of whether he is going to allow his candidate attorney to represent his firm in court, during the first year in the district court and in the second year in the regional court. For that reason it is significant that ss. (3) provides that it is the principal who has to apply for the certificate. It follows logically that the certificate is not merely a document which serves as proof of the candidate attorney's right to appear in court. The certificate is a requirement for the candidate attorney to appear."

[6] I earlier said the headnote somewhat captures the issues involved in the Nkosi judgment. That was because it does not capture fully the ratio of Hartzenberg, J's judgment, at 595E-J, where he says the following;

"Volgens my volg dit logies dat die sertifikaat nie 'n blote bewysstuk is wat uitgereik word net bloot om die klerk in staat te stel om te bewys dat hy oor die nodige vereistes beskik nie. Die sertifikaat as silks is 'n vereiste vir 'n klerk om te mag verskyn. Dit beteken dat op die feite in hierdie summiere geval, die betrokke persoon Masango, toe hy verskyn het nie aan al die vereistes wat deur die Wet, gestel is voldoen het nie. Sy verskyning was derhalwe onreelmatig." (Emphasis added).

The gravamen of the above passage, as I understand it, is that the appearance by the candidate attorney, without the certificate was, in itself, an unlawful act.

[7] For purposes of the present case, I accept that the interpretation given by Hartzenberg, J is correct. However, the issue in the present case, on the facts before me, is much more than the question as to whether the erstwhile candidate attorney's appearance was or was not unlawful. The question is whether or not, because of that unlawful conduct, the erstwhile candidate attorney's conduct, the entire proceedings or, alternatively, the portion thereof which was at a time when the certificate had expired, should be rendered a nullity. The Magistrate's enquiry, in paragraph 6 of his letter reads;

"(6) The question is whether the fact that he appeared before court after his right of appearance had expired was by itself an irregularity that vitiated the proceedings." There is no indication in that paragraph as to whether the Magistrate contemplates the entire proceedings, including the portions during which the erstwhile candidate attorney, Mr Mokgalaka, was entitled to appear, being declared a nullity.

[8] The answer does not, in my view, depend on the extent to which the Magistrate contemplates a possible irregularity in the question he raises. Once it is established, as it is established in this case, that Mr Mokgalaka appeared, for a potion of the period during which he represented the accused persons, without authority to do so, the proceedings or part thereof are irregular, it is, by now, trite that not every irregularity vitiates proceedings. It has to be a gross irregularity before that happens.

[9] There is no question, in my view, that a candidate attorney who continues to appear after the expiry of the certificate on which his or her right to appear was exhibited commits an irregularity. The question, however, as to whether or not the proceedings should be vitiated must, in my view, be related to the question of an accused person's fair trial. Whatever the position might have been before the Constitution of South Africa Act 200 of 1993 ("the Interim Constitution Act") and the subsequent Constitution of the Republic of South-Africa, 1996 ("the Constitution"), which is certainly be the approach since then, it does appear that, even at the time when the case of State v Moodie 1961 (4) SA 752 (A) was decided, the accused person's right to a fair trial was a consideration in determining how the consequences of an irregularity would be dealt with.

[10] That case had to do with rules relating to the jury system, which use to be practice in this country. One of the fundamental requirements in the jury system was that members of the jury be afforded the fullest freedom of discussion throughout their deliberations on the verdict. An unauthorised officer of the Court, the deputy sheriff, was in the presence of the jury for some 2 hours, at a time when they ought to have been deliberating on the verdict. It was accepted by the Court that he took no part in their deliberations. He actually explained his presence in a manner that did not denote that his intention was interfering, or that he did interfere, with the jury. Holmes, J.A, stated the following at 759B-D;

"Now however bona fide and well-intentioned the conduct of the deputy sheriff, in my view, he committed a grave irregularity in remaining in the presence of the jury throughout their deliberation. The statute requires that they should be 'in a private place apart by themselves.' These words, which convey a triple emphasis are normally a formality. It is fundamental to the jury system that the members should have the fullest freedom of private discussions throughout their deliberations. The presence of an unauthorised officer of the Court for some two hours, in the small and crowded room, in this case, strikes at the very root of that essential right of privacy.

It was so gross a departure from the established rules of procedure that it can be said that the appellant was not properly tried. In other words it was an irregularity of such a nature as to amount to a failure of justice. It is therefore unnecessary to enquire whether, on the elements, a reasonable jury would have inevitably have convicted if the deputy sheriff had not been present". (Emphasis added).

Evidently, "failure of justice" was the basis on which the enquiry proceeded.

[11] It is not clear whether, in S v Nkosi en Andere, the Court considered the question as to the relationship between the candidate attorney's continued representation of the accused person after the expiration of certificate and the conviction of each of the appellants with the charge of robbery and sentencing into the respective periods of imprisonment. After the findings by the Court that Mr Masango's appearance without a certificate was irregular, the Court said the following, at G-H;

"Dit is gemeensaak tussen die advokaat vir die appelante en die advokaat vir die respondent dat indien daar ander magtiging plaasegevind het, onreelmatigheid van so 'n aard is dat dit per se tot 'n regskending gelei het soos byvoorbeeld gedefinieer in S v Moodie 1961 (4) SA 752 (A) en meerin besonder 758 E-G. Dit is derhaiwe nie vir die hof nodig om in te gaan op die appel nie." (My understanding of the Court's comment is the following: It is common cause between the appellant's and the respondent's respective advocates that if irregularities took place, it is of such a nature as to vitiate the proceedings, in the manner defined, for example, in S v Moodie [supra]. It is, consequently, not necessary for the Court to go into the merits of the appeal).

[12] It would seem that counsel and the Court in Nkosi en Andere had in mind the following passage in Moodie, 768 E-H;

"To sum up so far, the following rules may be stated in regard to irregularities,..;

(1) The general rule with regard to irregularities is that the Court will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial Court would inevitably have convicted if there had been no irregularity.

(2) In an exceptional case, where the irregularity consists of such a gross departure from established rules of procedure that the accused has not been properly tried this is per se a failure of justice, and it is unnecessary to apply the test of enquiring whether a reasonable trial court would inevitably have convicted if there had been no irregularity.

(3) Whether a case falls within (1) or (2) depends upon
the nature and degree of the irregularity." (Emphasis
added).

It might be assumed that counsel and the Court opted for the second option, on the understanding that Mr Masango, the candidate attorney who proceeded to represent the appellants after his certificate had expired, had committed "such a gross departure from established rules of procedure that the accused [had] not been properly tried."

[13] Fortunately, this Court is not called upon to comment on the justification or otherwise of counsel and the Court, in Nkosi en Andere, in opting for option 2 of the "rules" mentioned in Moodie, I would have had the difficulty, had that been necessary, of not being aware of the specific facts of that case that is justified counsel and the Court arriving at that conclusion. A comparison of the two cases indicates, in my view, that there are important differences. The following are some of them;

(a) Unlike in Nkosi en Andere (so also Moodie and the many cases mentioned therein), proceedings in the present matter have not yet been finalised. It is, therefore, not possible to use the test as to whether "a reasonable trial court would inevitably have convicted" the accused persons (Moodie 758 F-G.) I shall revert to this aspect later in the judgment.

(b) It is common cause that the two accused persons in the present matter are very eager to have Mr Mokgalaka back as their legal representative - they are satisfied with his performance. At the conclusion of the oral evidence of the second accused person, the first accused person having also given oral evidence, Mr Mokgalaka closed the defence case. The case was postponed to 24 April, 2007, for addresses. On the latter date, Mr Tete, Mr Mokgalaka's erstwhile principal, appeared in his place. He told the Court, inter alia, the following at page 487;

"Mr Tete: As the court pleases. Your Worship I confirm that Mr Mokgalaka was appearing for the two accused in this matter previously. He, however, discovered this morning [24 April 2007] that his right of appearance in this court has since elapsed. And he requested me to take over the matter. Your Worship, although Mr Mokgalaka briefed me about the proceedings so far, he also indicated to me that there are technical issues involved and I discussed the matter with my Learned Friend and also with the two accused. Although my own feeling is that I am in a position to address the court, the accused themselves feel that if it is at all possible - ...Mr Mokgalaka should return to court and proceed with the matter" (Emphasis added).

(c) The trial was, in my view, virtually finalised. All evidence that needed to be led had been led and both sides had closed their cases. Evidence covers almost 500 pages (485 pages).

(d) Mr Mokgalaka is, in my view, no ordinary lawyer. I have not had insight as to his age but he sounds, on paper, of mature mind and experienced. He is eloquent and quite systematic in leading the evidence of his erstwhile clients and in cross-examining state witnesses.

(e) Serious repercussions will follow the setting aside of the proceedings, in consequence Mr Mokgalaka's irregular representation of the accused persons. They were eminently set out by Mr Leonard, the Deputy Director of Public Prosecutions, in the opinion received from the DPP's office, from which I quoted in full at the commencement of the judgement

(f) Mr Mokgalaka successfully applied for the discharge of the two accused persons in respect of some of the 6 charges together with their alternatives. The outcome of that application is contained in the Magistrate's ruling on pages 382 to 383 of the transcript. I quote from it in full;

"In the result the court rules as follows in respect of accused number 1 and 2 for the 6 counts, main and alternative counts. In respect of accused number 1, accused number 1 has a case to answer in respect of the following counts: count one, main and alternative count, count number two, main and alternative count, count number four, main and alternative count, count number five, main and alternative count, count number six, main and alternative count. And (sic) application for a discharge is refused in respect of those counts that I have indicated in respect of accused number one. No prima facie case has been established against accused number one in respect of count number three, main and alternative count. And accused number one is therefore acquitted in terms of Section 174 of the Criminal Procedure Act 51 of' 1977 as amended in respect of count three, main and alternative count and the application for discharge is granted in respect of count number three as far as accused number one is concerned. I will then now proceed to accused number two. The finding of the court is that the prima facie case has been established against accused number two in respect of count number[s] two and six, main and alternative counts respectively. An application for a discharge is refused in respect of those counts, two and six. No prima facie case has been established against accused number two in respect of count number one, main and alternative count, count number three, main and alternative count, count number four, main and alternative count and count number five, main and alternative count. And as such as (sic) the application for discharge is granted in respect of the above counts and their alternatives. And accused number two is therefore acquitted in terms of Section 174 of the Criminal Procedure Act 51 of 1977 as amended regarding the above counts that I have indicated." (g) Mr Mokgalaka has since been admitted as an advocate, which means that there is no doubt with regard to his capacity or ability to conduct a criminal trial. It is common cause that Mr Tete is desirous of briefing him as counsel for the two accused persons so as to finalise the case.

[14] In answering the question, therefore, as to whether the irregularity we are dealing with in the present matter resulted in a "miscarriage of justice" as Kumleben, AJA put it in S v Mkhise, S v Mosia; S v Jones; S v Le Roux (supra), at 871 E, the above considerations have to be taken into account.

[15] There is no doubt, in my mind, that Mr Mokgalaka's conduct, on the facts of this case, is irregular. I am not persuaded, however, that there will be a "miscarriage of justice" if the proceedings are allowed to remain intact and the case is allowed to proceed to finality, i am of the further view that, if either the accused persons or their attorneys or both require the services of Mr Mokgalaka and if he is otherwise legally qualified to appear as their legal representative, he should be permitted to do so. To do otherwise would, on, the facts of this case, amount to technica! adherence to formalism at the expense of the accused persons' right and entitlement to be treated fairly.

[16] It would be a miscarriage of justice if it was not mentioned, in this judgment, how despicable Mr Mokgalaka's conduct of proceeding - for quite a long period - without a certificate to act as a candidate attorney. Whilst I have come to the conclusion that this irregularity is not so gross as to warrant the setting aside of the proceedings, I view it as serious misconduct, one that either the Bar Council or, most likely, the Law Society - should deal with. Seeing that it is desirable, however, that Mr Mokgalaka be permitted to finalise the current case, it would, in my view, be best not to interrupt such proceedings by having him simultaneously facing a disciplinary action. Whilst it would be tragic to lose a lawyer of his apparent calibre, skills-wise, it would, in my view, also send a wrong message to practitioners if he did not receive some form of sanction for his irregular conduct. I must repeat, however, that that is not my judgment and is not a part of the order I am now about to make.

[17] In the circumstances, I make the following order:

1. THAT the question as to whether the irregularity arising from Mr Mokgalaka's continued appearance on behalf of the accused persons after his right of appearance had expired, was of such a nature as to vitiate the proceedings, on the facts of this case, is answered in the negative.

2. THAT the proceedings, up to the stage they have reached, appear to be in accordance with justice.

3. THAT, the trial should resume and proceed before the same Magistrate and Mr Mokgalaka is permitted to conduct the further defence on behalf of the accused persons, if they or their attorney(s) still desire his services.

JUDGE J.N.M POSWA

NORTH GAUTENG DIVISION

JUDGE G WEBSTER

NORTH GAUTENG DIVISION

In the ordinary course of events

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