S v King (Review) (CA&R 54/2025) [2025] ZAECMKHC 40; 2025 (2) SACR 217 (ECMk) (15 April 2025)

S v King (Review) (CA&R 54/2025) [2025] ZAECMKHC 40; 2025 (2) SACR 217 (ECMk) (15 April 2025)

The court found that Mr Nongendzi, although admitted as an advocate, was not enrolled with the Legal Practice Council as required by the Legal Practice Act. Both admission and enrolment are mandatory prerequisites for practising and appearing in court. Acting pro bono does not exempt an advocate from the enrolment requirement. The representation of the accused by an un-enrolled advocate constituted a fundamental irregularity, rendering the proceedings a nullity. The proceedings in the Magistrate’s Court were therefore set aside, and any new prosecution must be before a different magistrate.

Citation
[2025] ZAECMKHC 40
Parties
Applicant: The State; Respondent: Leon King
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
15 April 2025
Case Number
CA&R 54/2025
Procedural Posture
Review Application / Special Review of Uncompleted Criminal Proceedings
Outcome
Proceedings set aside as a nullity due to irregular representation; retrial before a different magistrate if prosecution recommences.
Judges
J M Roberson, N Molony
Legal Topics
Right of Appearance, Legal Practitioner Enrolment, Nullity of Proceedings
Criminal Law Civil Procedure Right of Appearance Legal Practitioner Enrolment Nullity of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Leon King

Respondent

Procedural Posture

Review Application / Special Review of Uncompleted Criminal Proceedings

Legal Issues

  1. 1 Whether representation by an un-enrolled advocate renders criminal proceedings a nullity.
  2. 2 Whether an advocate admitted but not enrolled under the Legal Practice Act has a right of appearance.
  3. 3 Whether acting pro bono affects the requirement for enrolment under the Legal Practice Act.

Ratio Decidendi

The court found that Mr Nongendzi, although admitted as an advocate, was not enrolled with the Legal Practice Council as required by the Legal Practice Act. Both admission and enrolment are mandatory prerequisites for practising and appearing in court. Acting pro bono does not exempt an advocate from the enrolment requirement. The representation of the accused by an un-enrolled advocate constituted a fundamental irregularity, rendering the proceedings a nullity. The proceedings in the Magistrate’s Court were therefore set aside, and any new prosecution must be before a different magistrate.

Court Disposition

Proceedings set aside as a nullity due to irregular representation; retrial before a different magistrate if prosecution recommences.

Orders

  • The proceedings against the accused in the Magistrate’s Court, East London, under case number A1140/2023, are reviewed and set aside.
  • Should the prosecution of the accused commence de novo, the trial must be held before a different magistrate.