IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION, BHISHO
Reference number: E1223/23
Review number: 5/2024
In the matter of:
THE STATE
versus
BULELWA MAZALENI ACCUSED
REVIEW JUDGMENT
STRETCH J.:
[1] This part-heard matter was sent on special review due to the fact that the legal practitioner representing the accused, being an attorney in private practice, did not have a valid fidelity fund certificate when his client pleaded to the charge and when the first prosecution witness testified.
[2] Mr Sinclair from the Office of the Deputy Director of Public Prosecutions is of the opinion that this constitutes a gross irregularity and that the proceedings should be set aside. He is thanked for his helpful report in this regard.
[3] Section 73(2) of the Criminal Procedure Act 51 of 1977 states that an accused person is entitled to be represented by a legal adviser at criminal proceedings, provided the legal adviser is not, in terms of any law, prohibited from appearing at the proceedings in question.
[4] Section 84 of the Legal Practice Act 28 of 2014 renders it mandatory for an attorney practising for his own account, to be in possession of a fidelity fund certificate.1 The act of practising without a fidelity fund certificate has been described by our courts as an irregularity that is of so fundamental and serious a nature, that the proper administration of justice and the dictates of public policy require it to be regarded as fatal to the proceedings in which it occurred.2
[5] In the circumstances, the Bhisho Office of the Deputy Director of Public Prosecutions has recommended that the proceedings should be set aside. I agree.
[6] The proceedings are rendered a nullity ab initio, and they are set aside. Should the prosecution elect to do so, the trial should proceed de novo before a different magistrate.
______________________
I.T STRETCH
Judge of the High Court
I agree:
_____________________
M. LOWE
Judge of the High Court
Date handed down: 22 July 2024
1 See Law Society of the Northern Provinces v Le Roux (185/2015) [2015] ZASCA 168 (26 November 2015); NW Civil Contractors CC v Anton Ramaano Inc. (a judgment handed down in the Limpopo Local Division by A.M.L. Phatudi J under case number 993/2016, on 14 May 2018)
2 See S v Van Eeden 2018 (2) SACR 218 (NCK) at [43]
Cited documents 3
Act 2
1. | Criminal Procedure Act, 1977 | 4007 citations |
2. | Legal Practice Act, 2014 | 311 citations |
Judgment 1
1. | Law Society of the Northern Province v Le Roux (185/2015) [2015] ZASCA 168 (26 November 2015) | 3 citations |