Mafongosi v Regional Magistrate, Mdantsane and Another

• Jurisdiction: South Africa
• Judge: Pestse J and Ndzondo AJ
• Judgment Date: 30 August 2007
• Citation: 2008 (1) SACR 366 (Ck)
• Docket Number: CAR 17/06
• Hearing Date: 22 June 2007
• Counsel: Mr Bauer for the applicant. No appearance for the first respondent. MPZ Sotenjwa for the second respondent.
• Court: Ciskei High Court

Ndzondo AJ:

[1] This is a review application in which the applicant, duly represented G by Mr Bauer, seeks an order, inter alia, reviewing and setting aside the decision of the first respondent when she appeared before him on 4 180 charges of fraud at Mdantsane on 1 December 2003 and for condonation of the delay in bringing these proceedings before court.

[2] The applicant, who was not represented at the trial in the court a H quo, was convicted of the aforementioned charges and was sentenced to an effective term of imprisonment of 25 years.

[3] It is common cause that the applicant was initially represented in the matter by Mr Ngwenya, an attorney appointed by the Legal Aid Board, who withdrew on the morning of the date of trial for what he termed I 'ethical reasons' as the attorney of record, before the trial against the applicant commenced.

4] I think it is essential, for purposes of this review judgment, to set out briefly the circumstances which led to the withdrawal of Mr Ngwenya as the applicant's attorney and the applicant's decision to conduct her own J defence.

Ndzondo J

[5] There were various attorneys employed by the Legal Aid Board who A appeared on behalf of the applicant before the case commenced, such as Mr Ntloze, who also withdrew as the applicant's attorney due to ethical reasons, Miss Yakhe, who fell ill a day prior to the hearing of the matter and, as a result thereof, one Mr Bambiso had to stand in for her and the matter had to be postponed.

[6] When the matter finally resumed on 1 December 2003 after several B postponements, Mr Ngwenya, also from the Legal Aid Board, appeared for the applicant and the following is what happened on this particular day:

Presiding officer in this matter is Mr Nel, for the State, PSWJ van Zyl, the interpreter is Mrs Cawe and for the accused currently on record, attorney C Mr Ngwenya, instructed by the Legal Aid Board. Your worship, the record will indicate that this matter is set down for trial today and the State is ready to proceed, two witnesses are present. I am told by Mr Ngwenya that there may be an application from his side to withdraw as attorney of record.

Court: Thank you, Mr Ngwenya. D

Mr Ngwenya: I confirm my appearance for the accused in this matter. First of all I would like to thank the court for affording my client an opportunity to seek the services of an expert, fingerprint expert that is. This matter was scheduled to be heard on 30 April and then the defence prevailed upon Mr Van Zyl, I would like to thank, Mr Van Zyl who is for the State for agreeing to the postponement. However, your worship, that E did not materialise, my client pleads poverty, so she could not secure the services of an expert. I therefore find myself in an unturnable (sic) position. I have therefore decided to withdraw from the case for ethical reasons, if it may please the court, your worship.

Court: Have you informed your client of the position then that you wish to withdraw? F

Mr Ngwenya: Yes, your worship, I have informed my client and she is ready to conduct her own defence.

Court: Thank you, that then being the case, it is so that I have talked to the parties in chamber (sic) before and were aware of this application that was going to take place. It is so that previous (sic) an attorney was appointed by the Legal Aid Board and he seems to have withdrawn for G the same reason that Mr Ngwenya wishes to withdraw today. I cannot force Mr Ngwenya to proceed with the matter, so I have no other option but to let him withdraw as attorney of record. It is so that I had indicated to him in chambers that the position would then be such that your right to legal representation has then now expired and you will not be afforded any further remand in this matter to secure legal representation. H Mr Ngwenya has informed me that you are now ready to proceed and conduct your own defence, is that correct?

Accused: Yes, your worship.

[7] In her affidavit the applicant states, inter alia, that the effect of the first respondent's statement that her right to legal representation had I expired and will not be afforded any further opportunity of a postponement to secure legal representation was to subject her to an instant trial without affording her another opportunity to obtain legal representation or ensuring that she had an adequate opportunity to prepare her defence, bearing in mind that at all material times she had had a legal representative who had full control over her case and consequently she never J

Ndzondo J

A prepared to present her own defence by herself; at the stage that Mr Ngwenya withdrew as the attorney of record, the court, in terms of s 73(2) of the Criminal Procedure Act 51 of 1977 (CPA), if it was of the opinion that ordering the trial to proceed without legal representation would result in substantial injustice, should order that a legal adviser be B assigned to her at State expense and, accordingly, his failure to apply his mind to this question resulted in an unfair trial.

[8] She goes on to say that the first respondent knew or ought to have known that she is an indigent accused arraigned on numerous complex charges in respect of which the State had to fly a specially trained prosecutor from Pretoria and which, in the event of a conviction, would C lead to a sentence which would, without doubt, materially prejudice her.

[9] The first respondent has not filed any opposing papers and abides the decision of the court.

[10] Mr Mbusi, a senior State advocate at the office of the second D respondent in Bhisho, has filed an affidavit on behalf of the second respondent.

[11] He has taken a preliminary legal point to the effect that the applicant has unduly delayed in launching these proceedings, and, on the merits has contended, inter alia, that the applicant chose to...