A Gauteng man, who was sentenced to 18-years imprisonment for robbery with aggravating circumstances, had his sentence set aside after he learned that his legal representative had no right to appear in court.
Herman Mdluli was represented by Sibusiso Mashinini when he was sentenced by the Regional Court in Johannesburg on August 20, 2019.
He served over four years in prison.
It is not clear how it happened, but Mdluli subsequently became aware that Mashinini had no right to appear in court.
He appealed his matter at the High Court in Johannesburg.
A judge ordered the Legal Practice Council (LPC) and the regional magistrate to provide affidavits commenting on the correctness of the allegations against Mashinini.
In January 2024, Shivani Naicker, on behalf of the LPC, uploaded an affidavit confirming that Mashinini did not have right of appearance during the trial.
Meanwhile, the regional magistrate’s affidavit was still outstanding.
According to court papers, attempts to reconstruct the recording of the proceedings yielded no results.
However, the court managed to locate proceedings which transpired on February 4, 2021, and from there, it came out that on that day Mdluli was represented by a new lawyer.
The exchange between the lawyer and the magistrate confirmed the issue of Mashinini not having a right of appearance was being raised.
The matter was postponed pending special review, however, the matter was never resolved due to the outstanding recordings.
A full bench of judges who were presiding over the appeal, said the fact that Mashinini at no stage had a right of appearance constitutes to a fatal irregularity to the proceedings.
The judges said Mdluli suffered prejudice and injustice during the proceedings.
As a result, the proceedings the conviction and sentence against Mdluli was set aside.
The judges said the Director of Public Prosecutions will decide whether to institute fresh proceedings within 30 days of the date of the judgment.
“If the proceedings are to be reinstituted, the trial must take place before another magistrate.The accused shall not be imprisoned or detained for longer than 30 days from the date of this judgment,” said the judges.
If Mdluli is recharged, he may still seek bail.
IOL News