An unexpected early Christmas gift befell a prison inmate whose 10-year prison sentence was overturned when it was discovered that he had been defended during his trial by an attorney who was suspended four years prior to conducting his defence.
The matter came under the attention of the Pietermaritzburg High Court as a special review, after the magistrate who handled his case only afterwards got wind that the defence attorney was not allowed to appear as an attorney.
Judge Robin Mossop, two days before Christmas, ordered the urgent release of Kwazi Michael Mkhize. He ordered that the sentences imposed upon him in June last year be set aside. Mkhize had already served about 18 months of his sentence.
The order issued is pending a decision by the Director of Public Prosecutions on whether to prosecute Mkhize afresh. But the judge said in the meantime he is to be released from prison, and the registrar of the court was directed to urgently notify correctional services to set him free.
The judge further ordered that a copy of this judgment be sent to the Legal Practice Council, KwaZulu-Natal, to consider whether further disciplinary steps are necessary in respect of the conduct of the attorney. The SAPS also has to receive a copy of the judgment to consider whether to investigate whether the attorney is guilty of a criminal offence.
Mkhize was convicted in the regional court on a count of unlawfully possessing a firearm and a further count of unlawfully possessing ammunition for that firearm, for which he was sentenced to 10 years' imprisonment.
During the entire course of his criminal prosecution, which commenced in November 2022, Mkhize was legally represented by a Mr Kwela, whom the accused and the court believed to be an admitted attorney with a right of appearance in the regional court.
A few days before Christmas, the record of the criminal proceedings in the regional court was received by the registrar of the high court on special review. This was after the magistrate was notified by the LPC that the attorney had been suspended from practising since July 2020.
No further particularity was mentioned in the LPC’s letter. Given the time of year, being the festive season recess period at the end of the formal court year, Judge Mossop accordingly directed his registrar to urgently seek further information from the LPC on the grounds upon which Kwela was suspended from practice and why he remained suspended four years after his initial suspension.
However, it was not possible to contact the LPC, which appears to have closed for the festive period.
Judge Mossop stated that it is known that the LPC is the custodian of the legal profession and its duty includes maintaining the prescribed standards of conduct required by members of the legal profession generally.
For the purposes of this judgment, and being unable to contact the LPC, I shall cautiously accept that the suspension of Mr Kwela was justified,” the judge said.
He added that Mkhize was represented by a person that had no entitlement or right to do so, given his suspension.
“In appearing as he did, it is entirely probable that Mr Kwela misled both Mr Mkhize and the regional magistrate. Neither of them knew that he was not entitled to act as an attorney or to represent any person while under suspension.”
Judge Mossop said by failing to disclose this to either Mkhize or to the regional magistrate, Kwela intended to deceive both. “That goal he achieved for it was only after the criminal proceedings had ended that it emerged that Mr Kwela had been suspended.”
The judge noted that those qualified legal practitioners that are given the right of audience before our courts must be persons of unquestionable honesty and integrity. “It barely needs saying that he ought to have disclosed the fact that he had been suspended before embarking on the defence of Mr Mkhize.”
“If suspended legal practitioners are permitted to appear without consequence before the courts of this country, the proper administration of justice, in my view, will fall into disrepute.”
The judge added that the irregularity that occurred is so profound that the court has to intervene. Judge Mossop said it is in the public interest that defences in criminal trials be conducted by persons in good standing with the regulatory body.
Pretoria News