The KwaZulu-Natal Division of the High Court set aside a sentence that was imposed on accused Mr Kwazi Michael Mkhize in June 2023, this was after the matter was brought on special review at the request of the magistrate of Pietermaritzburg before the KwaZulu-Natal High Court. The High Court pointed out that the basis of the review was found to be in the following remarks:
‘The accused was defended by an attorney, Mr Lizwi Joshua Kwela who was suspended as per annexure “A” of the Legal Practice Council [LPC] letter dated 12/11/2024.’ The High Court pointed out that attached to the covering letter was a letter, dated 12 November 2024, in which the LPC wrote to the magistrate of Pietermaritzburg and stated the following:
‘Kindly be advised that Mr Lizwi Joshua Kwela of the above-mentioned firm is suspended from practicing as a legal practitioner on 22 July 2020 till to date as per our database and the Director of the Legal Practice Council (KwaZulu-Natal Provincial office) is the appointed Curator in this matter.’ The High Court added that no further particularity was mentioned by the LPC’s letter. The High Court said that given the time of year, being the festive season recess period at the end of the formal court year, it directed the registrar of that court to urgently seek further information from the LPC of the grounds on which Mr Kwela was suspended from practice and why he remained suspended four years after his initial suspension.
The High Court said that it was impossible to contact the LPC, which was closed for the festive season period. The High Court added that it accordingly did not have other information than that contained in the LPC’s letter of 12 November 2024.
Mr Mkhize was convicted in the regional court of Pietermaritzburg on a count of unlawfully possessing a firearm and a further count of unlawfully possessing ammunition for that firearm. The High Court said Mr Mkhize on the count of unlawfully possessing a firearm, was sentenced to ten years’ imprisonment and on the other count was sentenced to three years’ imprisonment, which latter sentence was ordered to run concurrently with the first sentence. Mr Mkhize had already served 18 months of his effective sentence of ten years of imprisonment. The High Court pointed out that during the entire course of his criminal prosecution, which commenced on 25 November 2022, and which terminated on 27 June 2023, with his conviction and sentence, Mr Mkhize was legally represented by Mr Kwela, apparently as all times as an admitted attorney with a right of appearance in the Regional Court.
The High Court said that it is trite that the LPC is the custos morum of the legal profession and it is its duty to, inter alia, identify, maintain and preserve the prescribed standards of the conduct required by members of the legal profession generally. The High Court added that the LPC has the power to suspend members who do not achieve those standards, and may, in deserving cases, prevent a wayward legal practitioner from continuing to act as a legal representative. The High Court pointed out that in performing its duties in either suspending or striking off a member, the LPC did not impose a penalty on the legal practitioner but rather acts in protection of members of the public.
The High Court said for the purpose of this judgment and being unable to contact the LPC, it accepted that the suspension of Mr Kwela was justified. The High Court added that South Africa’s legal system cherishes the right to legal representation in legal proceedings, especially criminal proceedings. The High Court pointed out that s 35(3) of the Constitution permits an accused person the right to choose, and be represented by, a legal practitioner, and to be informed of this right promptly following on arrest. The High Court further stated that s 73(2) of the Criminal Procedure Act 51 of 1977 reinforces that right when it proclaims that:
‘An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question.’
And s 33(1) of the Legal Practice Act 28 of 2014 provides that:
‘Subject to any other law, no person other than a practising legal practitioner who has been admitted and enrolled as such in terms of this Act may, in expectation of any fee, commission, gain or reward –
(a) appear in any court of law or before any board, tribunal or similar institution in which only legal practitioners are entitled to appear.’
The High Court said that Mr Mkhize was represented at his criminal trial by a person that had no entitlement or right to do so, given his suspension. The High Court added that in appearing as he did, it is entirely probable that Mr Kwela misled both Mr Mkhize and the regional magistrate. Moreover, that neither of them knew that he was not entitled to act as an attorney or to represent any person while under suspension. The High Court added that by failing to disclose this to either Mr Mkhize or to the regional magistrate, Mr Kwela intended to deceive both. The High Court said it was only after the criminal proceedings had ended that it emerged that Mr Kwela had been suspended.
The High Court pointed out that a gross irregularity in a trial may vitiate the entire trial. The High Court added that where the irregularity is gross, the conviction is set aside without a consideration of the merits of the matter. The High Court said where irregularity is less serious, the merits may be considered separately from the irregularity and a just decision taken on whether there was a failure of justice. The High Court pointed out that qualified legal practitioners are given the right of audience before courts must be persons of unquestionable honesty and integrity. The High Court, however, said that these qualities on the known facts, appear to be lacking in Mr Kwela. The High Court added that it barely needs saying that Mr Kwela ought to have disclosed the fact that he had been suspended before embarking on the defence of Mr Mkhize.
The High Court said that if suspended legal practitioners are permitted to appear without consequences before the courts of this country the proper administration of justice, in its view, will fall into disrepute. The High Court added that irrespective of the merits of the defence raised by Mr Mkhize at his trial or the performance of Mr Kwela in presenting that defence, it seemed that the irregularity that occurred is so profound that it invites the intervention on the High Court. The High Court pointed out that indeed the regularity is:
‘… “of so fundamental and serious a nature that proper administration of justice and the dictates of public policy require it to be regarded as fatal to the proceedings in which it occurred” … .’
The High Court said that it is an unfortunate consequence of such conduct. The High Court added that it was of the view that the conviction of and sentences imposed on by the regional magistrate must be set aside. The High Court said this was also the view of the magistrate who sent the proceedings through for special review. The High Court added that given the passage of time since Mr Mkhize’s conviction, it is not entirely certain whether the Director of Public Prosecutions will be able to retry Mr Mkhize, with the possibility that witnesses may not be available. The High Court said that pending the decision on whether to retry Mr Mkhize, he should be released from his prison sentence. The High Court also added that the registrar of the court should send a copy of the judgment to the LPC and to the South African Police Services for further investigation into the conduct of Mr Kwela.
The High Court said that the convictions of Mr Mkhize and the sentences imposed on him on 27 June 2023 are set aside.
The High Court added that pending a decision by the Director of Public Prosecutions on whether to prosecute Mr Mkhize de novo, he is to be released from prison and the registrar of the court is directed to urgently notify the Department of Correctional Services of the terms of this order.
The High Court said a copy of the judgment must be sent by the registrar of the High Court to the LPC in KwaZulu-Natal to consider whether further disciplinary steps are necessary in respect of the conduct of Mr Kwela.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 61.
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