Most people know that a lawyer who is guilty of misconduct may be struck from the roll and prevented from acting as an advocate or attorney again. But supposing the person involved never was a proper member of the profession in the first place – what happens then?
It’s a problem that has arisen in the Sasolburg area, where four trials were forced to a halt. In addition, the five accused involved in these matters will have to be compensated for any legal fees they may have paid, after it emerged that the man who took on their defence, holding himself out as an attorney, was not qualified.
The four matters came before the High Court in Bloemfontein on special review after the magistrates involved had referred them for the judiciary to take action. In all four cases, heard in Sasolburg, the accused were represented by TM Marabo, and in all the matters, his involvement brought the trial concerned to a complete stop.
First there was Seipati Mtjikane, charged with theft after she allegedly stole a computer from the Metsimaholo municipality. The hearing started in February last year, but from the time Marabo became involved, “there has been no meaningful progress made towards finalisation of this matter”, as the high court put it. In addition, while the case limped along, questions began to be asked about Marabo’s legal credentials.
The second case involved two accused, both police officers, charged with extortion, robbery, defeating the ends of justice and other crimes. Again, once Marabo took over the matter, the trial stalled. This time, however, the matter was postponed for the specific purpose of investigating Marabo’s right to appear in court.
The third case involved a number of counts of fraud and theft, and, like the others, it seemed to get stuck when Marabo became involved for the accused.
In the last case, the accused was charged with defrauding First National Bank. This time, the magistrate postponed the trial and wrote to the Law Society of the Northern Provinces to ask about Marabo.
The reply noted that Marabo had been|a candidate attorney until his contract expired in June 2010. The law society asked for details of the cases in which Marabo had appeared, adding that it regarded his behaviour as a serious matter.
Armed with this letter, the magistrate wrote to the high court, asking for a special review in all four cases, adding: “I did take up the matter with Mr Marabo and he said the law must take its course.”
For some reason, the magistrate’s letter took three weeks to reach the high court registrar, something on which the acting deputy judge president of the division, Hans Rampai, made no comment on in his judgment, delivered late last month.
On the basis of the letter from the law society, however, Rampai concluded that Marabo had had no right of appearance from the end of June 2010.
He then examined each of the cases to see whether Marabo had appeared before or after that date; his conclusion was that in all four matters, the accused had not been properly represented at some or all of the hearings.
In falsely representing to the accused – not to mention the court and the public – that he was a qualified lawyer, he had defrauded the accused, Rampai concluded. Marabo had projected himself as a properly qualified defence lawyer, and the accused regarded him in the same way.
This “false representation” was an irregularity of such gravity that it “virtually vitiates” the proceedings in all four matters. “I take a very dim view of this sort of unethical conduct by a prospective attorney,” he added.
Rampai recommended that the law society should “speedily investigate the gentleman” as well as the attorney to whom he had been articled in order to take “swift and appropriate disciplinary action against those concerned”.
He also strongly recommended that if anyone should be found guilty of misconduct in the matter, punishment should include “full compensation to the victims, namely the five accused”.
In the judge’s view there had been a miscarriage of justice, caused by Marabo’s “irregular, unethical and (on the face of it) fraudulent conduct”.
Proceedings in all four cases have been set aside and they must all start from the beginning again.
Finally, Rampai ordered that the law society should be sent a copy of the judgment, the implication being that it should immediately begin the inquiry into Marabo’s conduct that he had recommended.