S v Mbuyisa (2018/6) [2018] ZAGPJHC 421; 2018 (2) SACR 691 (GJ) (21 May 2018)

S v Mbuyisa (2018/6) [2018] ZAGPJHC 421; 2018 (2) SACR 691 (GJ) (21 May 2018)

The court held that the accused's representation by Ms Mpitso, who had been struck off the Roll of Advocates, constituted a material irregularity that vitiated the entire proceedings. The jurisprudence across several divisions of the High Court consistently supports setting aside proceedings where an unlicensed person appears for the accused. The court rejected the pragmatic approach adopted in S v Chukwu, emphasizing that the integrity of the legal system depends on representation by properly licensed officers of the court. The proceedings were set aside in their entirety, and directions were given for the Director of Public Prosecutions to decide on reinstituting charges.

Citation
[2018] ZAGPJHC 421
Parties
Respondent: The State; Applicant: Caiphus Mbuyisa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 May 2018
Case Number
2018/6
Procedural Posture
Criminal Review / Special Review After Conviction and Referral for Sentencing
Outcome
The proceedings are set aside in their entirety due to the irregularity of representation by a struck off attorney.
Judges
Sutherland, Carelse
Legal Topics
Right of Audience, Irregularity in Proceedings, Malicious Injury to Property, Unlicensed Possession of Firearm, Unlicensed Possession of Ammunition
Criminal Law Civil Procedure Right of Audience Irregularity in Proceedings Malicious Injury to Property Unlicensed Possession of Firearm Unlicensed Possession of Ammunition

Case Brief

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Parties

The State

Respondent

Caiphus Mbuyisa

Applicant

Procedural Posture

Criminal Review / Special Review After Conviction and Referral for Sentencing

Legal Issues

  1. 1 Whether the proceedings are vitiated by the fact that the accused was represented by a struck off attorney.
  2. 2 Whether pragmatic considerations can excuse the irregularity of representation by an unlicensed practitioner.
  3. 3 What is the appropriate remedy when an accused is represented by someone without rights of audience.

Ratio Decidendi

The court held that the accused's representation by Ms Mpitso, who had been struck off the Roll of Advocates, constituted a material irregularity that vitiated the entire proceedings. The jurisprudence across several divisions of the High Court consistently supports setting aside proceedings where an unlicensed person appears for the accused. The court rejected the pragmatic approach adopted in S v Chukwu, emphasizing that the integrity of the legal system depends on representation by properly licensed officers of the court. The proceedings were set aside in their entirety, and directions were given for the Director of Public Prosecutions to decide on reinstituting charges.

Court Disposition

The proceedings are set aside in their entirety due to the irregularity of representation by a struck off attorney.

Orders

  • The proceedings are set aside in their entirety.
  • The DPP, Johannesburg shall decide whether to institute fresh proceedings within 30 days of the date of this judgment.