S v Nkosi

JurisdictionSouth Africa
Citation2010 (1) SACR 60 (GNP)

S v Nkosi
2010 (1) SACR 60 (GNP)

2010 (1) SACR p60


Citation

2010 (1) SACR 60 (GNP)

Case No

104/09

Court

North Gauteng High Court, Pretoria

Judge

Seriti J and Legodi J

Heard

September 10, 2009

Judgment

September 10, 2009

Flynote : Sleutelwoorde

Legal practitioners — Withdrawal of — Attorney N representing accused 1 and 2 — In consultation, accused 1 telling one version, and in court another; accused 2 sticking to original version — N withdrawing as A representative of accused 1, continuing as representative of accused 2 — N having to cross-examine accused 1 where previously he had represented him — N needing to withdraw completely.

Trial — The accused — Legal representation of — Withdrawal of legal representative — During trial, withdrawal of Legal Aid attorney — Accused requesting H opportunity to apply for new Legal Aid attorney — Magistrate informing accused that Legal Aid Board would not afford him another attorney — Where legal representative withdraws on ethical grounds, accused entitled to another legal representative appointed by Legal Aid Board.

Headnote : Kopnota

I Accused 1 was found guilty of attempted theft of gold ore at a mine. He was represented by an attorney from the Legal Aid Board, but the attorney withdrew as his attorney at the start of the hearing. On review the following issues were raised: (a) whether on the merits of the case the sentence imposed was appropriate, (b) whether accused 1 was entitled to another legal representative from the Legal Aid Board after the first attorney withdrew as his attorney, and (c) whether the accused pleaded or not and, J if not, whether such omission vitiated the proceedings.

2010 (1) SACR p61

Held, as to (a), that, according to the accused, he went to the mine for a lawful A job, where they were arrested by security officers. This version was in no way rebutted by the security officers. Therefore, only on the merits, accused 1 should have been given the benefit of the doubt. (At 62d–e.)

Held, as to (b), that it was clear from the record that the trial court denied accused 1 his right to legal representation. Where a legal representative withdrew on ethical grounds, an accused would be entitled to another legal B representative appointed by the Legal Aid Board. The refusal by the trial court led to the unfairness of the trial. (At 64c–d.)

Held, further, that the attorney who represented both accused should have withdrawn completely from the case, he had to cross-examine accused 1 in a matter where he had previously represented him. (At 64e.)

Held, as to (c), that nothing on record indicated that the accused ever pleaded. C From the explanation by the trial court it was not even clear whether accused 1 pleaded guilty or not guilty, and, if not guilty, at what stage of the proceedings he did so. (At 64f–j.)

Held, accordingly, that this also justified the setting aside of the proceedings. (At 65a.) Conviction and sentence imposed on accused 1 set aside. D

Case Information

Automatic review. The issues appear from the judgment of Legodi J, in which Seriti J concurred.

Judgment

Legodi J:

This matter was laid before me on automatic review in respect of accused 1 who was found guilty of attempted theft of gold ore at E Consort Mine, Barberton. He appeared on this charge together with another accused who was represented by an attorney from the Legal Aid Board.

Initially the attorney represented both accused 1 and the other accused, F but withdrew as attorney for accused 1 at the start of the hearing of the matter.

The two accused were found guilty as charged on the main charge of theft and subsequently the unrepresented accused 1 was sentenced to two years' imprisonment, one of which was suspended on appropriate conditions. G

When this matter was initially laid before me, I raised the issue as follows with the Director of Public Prosecutions (DPP).

'The office of the Director of Public Prosecutions is requested to H comment on whether the accused had properly pleaded to the charge and if not, whether such omission vitiated the...

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1 practice notes
  • S v Mathebula
    • South Africa
    • Invalid date
    ...to her pregnancy and its effects. Whatever its merits at the time of the application it was in essence a temporary consideration J 2010 (1) SACR p60 Heher A which has long since been overtaken by the lapse of time in bringing this matter to a conclusion. Accordingly it is no longer relevant......
1 cases
  • S v Mathebula
    • South Africa
    • Invalid date
    ...to her pregnancy and its effects. Whatever its merits at the time of the application it was in essence a temporary consideration J 2010 (1) SACR p60 Heher A which has long since been overtaken by the lapse of time in bringing this matter to a conclusion. Accordingly it is no longer relevant......

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