S v Mkhise; S v Mosia; S v Jones S v Le Roux

• Jurisdiction: South Africa
• Citation: 1988 (2) SA 868 (A)

S v Mkhise;
S v Mosia;
S v Jones
S v Le Roux
1988 (2) SA 868 (A)

1988 (2) SA p868

Citation	1988 (2) SA 868 (A)
Court	Appellate Division
Judge	Jansen JA, Joubert JA, Viljoen JA, Boshoff AJA and Kumleben AJA
Heard	March 20, 1987
Judgment	May 12, 1987

Flynote : Sleutelwoorde

Advocate — Admission of — Accused represented in trials by person who C had obtained LLB degree but masqueraded as an advocate who had been admitted to practise in terms of s 3(1) of Admission of Advocates Act 74 of 1964 — Imposter, however, having passed practical examination and having become member of Bar — Application for special entry by accused D who had been convicted of various offences after being represented by such advocate — Court holding that procedure for admission to practise was more than a mere formality and authority to practise in terms of the Act was essential to proper administration of justice — Lack of authority in instant cases so fundamental and irregular as to nullify the entire trial proceedings. E

Headnote : Kopnota

Each of the appellants had been tried and convicted in the Transvaal Provincial Division of various offences and had been represented at their respective hearings by one De Jager. De Jager had obtained the LLB degree but had never been admitted to practise as an advocate in terms of s 3(1) or s 5(1) of the Admission of Advocates Act 74 of 1964. He F took the identity of someone who had been admitted and thereby became a member of the Society of Advocates of the Orange Free State after serving his training period as a pupil and after having passed the practical examination. By the same deception he also became a member of the Pretoria Bar. When the full facts became known the appellants applied for a special entry alleging that the proceedings in their respective trials had been vitiated by this irregularity. The Court examined the procedure for admission to practise and was of the opinion that it was more than a mere formality: though an applicant might be G duly qualified and satisfy the other requirements for admission, his character and integrity were of cardinal importance. The proper administration of justice required that he be a person of unquestionable honesty and integrity. The Court held that, from the language of the Act and its provisions and considered in conjunction with the privileges, duties and responsibilities of an advocate, authority to practise in terms of the Act was essential to the proper administration of justice. The lack of such authority was so fundamental and irregular as to H nullify the entire trial proceedings.

Case Information

Applications for special entry in terms of s 317(1) of the Criminal Procedure Act 51 of 1977. The facts appear from the judgment of Kumleben AJA.

J C Labuschagne for the appellants in the cases of Mkhise, Mosia and I Jones at the request of the Court.

W F Pienaar for the appellant in the case of Le Roux at the request of the Court.

D F de Beer for the State in the cases of Mkhise and Le Roux.

L Pienaar for the State in the case of Mosia.

J J Jonker for the State in the case of Jones.

1988 (2) SA p869

Cur adv vult.

Postea (May 12).

Judgment

Kumleben AJA:

These four appeals were heard together.

During the period from October 1983 to January 1984 at four separate B criminal trials in the Transvaal Provincial Division each appellant was charged with murder and, in some cases, with other offences as well. All were convicted on the murder charges. In three instances, extenuating circumstances having been found to be present, sentences of imprisonment were imposed. In the case of the appellant Mkhise the death sentence was C passed. He, however, received a reprieve in terms of s 326(1) of the Criminal Procedure Act 51 of 1977 ('the Code') and a sentence of 20 years' imprisonment was substituted.

The significant common feature of their trials was that each appellant was represented by pro Deo counsel in the person of Mr Sebastiaan Hendrik de Jager. At the time that he appeared on their behalf he had D not been admitted to practise as an advocate in terms of either s 3(1) or s 5(1) of the Admission of Advocates Act 74 of 1964 ('the Act') and, it follows, was not enrolled as an advocate. As a matter of fact he was never so admitted or enrolled. Section 2(1) of the Act states that:

'After the commencement of this Act no person shall be admitted to E practise as an advocate save in accordance with the provisions of this Act.'

His appearance as counsel on each occasion was therefore unlawful and he moreover committed an offence. Section 9(1), and the relevant portion of s 9(3), of the Act are to the following effect:

'(1) No person who has not been or is not deemed to have been admitted F to practise as an advocate in terms of any provision of this Act or whose name has been removed from the roll of advocates or who is subject to any order suspending him from practice as an advocate, shall in any manner, directly or indirectly, practise as an advocate or hold himself out as, or pretend to be, or make use of any name, title, addition or description implying or tending to induce the belief that he is an G advocate or is recognised by law as such.

...

(3) Any person who contravenes any provision of this section shall be guilty of an offence and liable on conviction to a fine not exceeding R200 or to imprisonment for a period not exceeding 12 months with or without the option of a fine, or to both such fine and such imprisonment....' H

De Jager, in order to practise as an advocate, became a member of the Society of Advocates of the Orange Free State by subterfuge. He pretended to be a certain Mr Jacobus Willem Pienaar. In his written application for membership to the Free State Bar he alleged (holding himself out to be Pienaar) that on 29 January 1982 he had been admitted, I and was enrolled, as an advocate in what was then the South West Africa Division of the Supreme Court. Had this been the case, he would have been entitled to practise as an advocate throughout the Republic in terms of s 6 of the Act. After serving his training period as a pupil and after having passed the necessary practical examination, he was admitted to membership of the Free State Bar and proceeded to practise J as an advocate

1988 (2) SA p870

Kumleben AJA

A in that province. By the same deception he subsequently became a member of the Pretoria Bar. It was during his period of practice there that he acted for the four appellants in the Transvaal.

In the light of these facts each of the four appellants, during September and October 1985, applied to Court for a special entry, recording this irregularity, in terms of s 317(1) of the Code. In B addition each sought condonation for not having done so within the time prescribed by that subsection. The applications for a special entry came before Court and were granted together with the necessary condonation. Though all are not identically worded, each entry relies on the fact that De Jager acted for...