S v Mtjikane, S v Prechand and Another, S v George, S v Makhunoane (36/2012, 37/2012, 38/2012, 39/2012) [2012] ZAFSHC 48 (22 March 2012)

S v Mtjikane, S v Prechand and Another, S v George, S v Makhunoane (36/2012, 37/2012, 38/2012, 39/2012) [2012] ZAFSHC 48 (22 March 2012)

The court found that Mr. T.M. Marabo, who appeared as legal representative for the accused in all four matters, did so after his contract as a candidate attorney had expired, and without any right of appearance. This constituted a serious irregularity and a prima facie fraudulent misrepresentation to the accused, the court, and the public. The accused were not lawfully and fairly represented, and the irregularity was of such gravity that it vitiated the proceedings in each matter. The court held that the only appropriate remedy was to set aside the proceedings ab initio and remit the matters for retrial. The court also recommended disciplinary investigation and compensation for the...

Citation
[2012] ZAFSHC 48
Parties
Applicant: The State; Respondent: Seipati Lydia Mtjikane; Respondent: Naresh Prechand; Respondent: T. Mokubung; Respondent: Arthur Filile George; Respondent: Vincent Photo Makhunoane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 March 2012
Case Number
36/2012, 37/2012, 38/2012, 39/2012
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
All proceedings in the four matters are set aside ab initio and remitted for retrial.
Judges
Rampai, Claassen
Legal Topics
Right of Appearance, Misrepresentation by Candidate Attorney, Irregularity in Criminal Proceedings, Setting Aside Proceedings, Disciplinary Action Against Attorneys
Criminal Law Civil Procedure Right of Appearance Misrepresentation by Candidate Attorney Irregularity in Criminal Proceedings Setting Aside Proceedings Disciplinary Action Against Attorneys

Case Brief

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Parties

The State

Applicant

Seipati Lydia Mtjikane

Respondent

Naresh Prechand

Respondent

T. Mokubung

Respondent

Arthur Filile George

Respondent

Vincent Photo Makhunoane

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the accused in each matter were lawfully and fairly represented by Mr. T.M. Marabo.
  2. 2 Whether Mr. T.M. Marabo had the right of appearance in the district court after the expiry of his contract as a candidate attorney.
  3. 3 Whether the irregular representation vitiated the criminal proceedings in each case.

Ratio Decidendi

The court found that Mr. T.M. Marabo, who appeared as legal representative for the accused in all four matters, did so after his contract as a candidate attorney had expired, and without any right of appearance. This constituted a serious irregularity and a prima facie fraudulent misrepresentation to the accused, the court, and the public. The accused were not lawfully and fairly represented, and the irregularity was of such gravity that it vitiated the proceedings in each matter. The court held that the only appropriate remedy was to set aside the proceedings ab initio and remit the matters for retrial. The court also recommended disciplinary investigation and compensation for the...

Court Disposition

All proceedings in the four matters are set aside ab initio and remitted for retrial.

Orders

  • The entire proceedings in respect of each of the four matters are set aside.
  • The nullification in respect of each matter applies ab initio each trial.