IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
Date: 29/04/2010

Magistrate
PRETORIA

THE STATE v SIPHO MHLANGA, NXULULEKO NDEBELE AND MTHANDENI NDLOVU

REVIEW JUDGMENT

SOUTHWOOD J

1)	whether the entire proceedings must be set aside because they are not in accordance with justice; and
2)	whether only the proceedings relating to accused no 3 must be set aside because they are not in accordance with justice.

[2] The three accused are standing trial on two counts of robbery with aggravating circumstances, one count of assault with intent to do grievous bodily harm and two counts of unlawful possession of a firearm. The accused were arrested on 28 July 2004 (the night of the incident), refused bail and their trial commenced on 19 September 2005. The trial has not been completed.

[3] At the commencement of the trial accused no 1 and 2 were represented by an advocate, Mr. Rakgobela, and accused no 3 by Mr. Moagi who represented to the court that he was an advocate. Mr. Rakgobela and Mr. Moagi continued to represent the three accused from that date but Mr. Moagi's appearances became progressively more erratic until during the first half of 2008 he disappeared and did not appear again. Mr. Moagi's failure to attend the proceedings resulted in the trial being postponed and considerably delayed the finalisation of the matter.
[4] When Mr. Moagi disappeared the prosecution had closed its case and the accused were about to present their defence. Accused no 3 then successfully applied for legal aid and a Mr. Nel was appointed to act on his behalf.

[5] To enable Mr. Nel to represent accused no 3 it was necessary to prepare a record of the proceedings. Numerous difficulties were experienced in doing so: in November 2008 the charge sheet and written record were stolen together with a number of documentary and photographic exhibits. The process of reconstructing the record was completed only in August 2009.

[6] When addressing the court in August 2009 Mr. Nel alleged that Mr. Moagi had never been an advocate of the High Court. This caused the regional magistrate to make enquiries and he discovered that Mr. Moagi had never been admitted as an advocate of the High Court in terms of the Admission of Advocates Act 74 of 1964.

This conclusion clearly relates to the facts in that case where only one accused and his legal representative were involved in each case.

[11]    I       The proceedings against the accused in the Pretoria regional court under case number 14/00184/2005 are set aside;

b.r. southwood 
judge of the high court
I agree

c. pretorius 
					judge of the high court