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:

-and-

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
3.	a Candidate Attorney acting on behalf of his Principal appeared on behalf of Accused 1 and 2 in this matter.
4.	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.
5.	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.
6.	The question is whether when he appeared before court after his right of appearance had expired was that an irregularity that vitiated theproceedings.
7.	There are conflicting decisions in this matter in accordance with Case Law that I cited on record.
8.	
9.	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.

	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.
	
"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."

	(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).

	(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.'

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)

(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

[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.

"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."

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;

[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.

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

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

(2)	

(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;

[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.

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

In the ordinary course of events