BY DR MASIMBA MAVAZA
Like a circus script or a comic book South African Police announced on their Twitter handler that “ Prince Dlamini from Tsakane Mamelodi was arrested on Friday the 8th July 2022 for impersonating a lawyer. He operated as a lawyer in courts around Pretoria including Mamelodi. He represented over one hundred people in a period of two years. He won 63 of those cases.”
The police then went on to say all the people he represented have to go back for trial.
This has set tongues alight people asking if this is the correct position of the Law. A colleague and a very respected Zimbabwean lawyer Mr Nickel Mushangwe wondered what legal position the South African Police are setting.
Several learned friends had a torrid time believing the South African Police position.
Another renowned legal Guru MR Nhlanhla Mahlangu said:
“It is not the correct position at all. “In fact it is an insane stance and attracts a comment.
So we need to understand that
there are two issues that are very different and must be kept apart. These are
1. The crime of impersonation
2. The fundamental right of a citizen not to be tried more than once on the same allegations, particulary the fundamental right of a citizen not to be be tried on allegations that on which they have been acquited by a compeetant court.
It therefore goes without doubt that the culprit must be tried for impersonating. There should be a statutory provision in the South African laws which protects the learned profession. It should be noted that only lawyers are learned and every other person could be educated some are schooled.
But the act of attempting to re-try all the defendants who were acquitted on criminal charges where they were represented by the impersonator, that is a direct entry into the realms of human rights. In particular, Section 35 (3) of the Constitution Republic of South is engaged. This constitutional provision expressly stipulates that “every person has a right to fair trial , which includes the right not to be tried for the crime that person was found guilty or acquitted of. This provision bestows a concept known as ” the right not to be subjected to double jeopardy.
Those who potentially face a criminal trial based on the same allegations that were, in one way or the other, ruled upon and disposed of by a competant court have a right to a procedural defence known as the defence of “autrefois acquit” or “autrefois convict.
The defences of autrefois acquit and autrefois convict are embodied in Section 106 (1) (c) and (d) of the South African Criminal Procedure Act (Act 5) of 1977
In this particular case, the concerned citizens would raise a defence of autrefois acquit. They will have to demonstrate that:
a) they were previously acquitted of the same crime on similar or substantially similar facts or allegations.
b) the acquital was on merit
c) the acquital was by a competant court of law.
It is noteworthy that of those three essentials stated above, the third one requires an acquital by a competant court after a plea has been entered ( on merit). Therefore the competant entity here is not the attorney. It is the court.
If the law required the attorney to be competant, it would have made the point in so many words. The mere fact that it must have been abnoxious for that person to impersonate does not oust the fundamental right to fair trial which is enshrined in the constitution.
There is not even a suggestion that the defendants knew that the person was impersonating and therefore were colluding with him.
It is submitted that even if the defendants were in connivance with the impersonator, that would be grounds to trigger a re-trial. It would only be grounds to charge them of aiding and abating the impersonator and conceicably charged with the offence of contempt of court.
It does appear that the impersonator was reasonably good at not only impersonating but on delivery in litigation. His success rate is just like that of any average attorney and arguably better. To that extent the defendants were as much of victims as the court itself.
To re-try the defendants will not only violate their human rights to fair trial, it will demean the court system and damage the course of justice. This is because the whole idea of retrying will be based on the flawed assumption that defendants were acquited or convicted based on the performance of an attorney or a pretended attorney. That is trivialising the criminal justice system and lampooning the prosecution and the judiciary. There is more happening in a court room than the gymics of an attorney or a pretended attorney. The judge and prosecution are agents of justice and justice is too important to be determined by one person and let alone by an impersonator. Therefore in all the matters, acquital or conviction would have been based on merit rather than on performance.
Furthermore the police do not decide on who to prosecute. That decision is entirely left in the hands of the state. That is the State Prosecution.
Where defendants chose their own lawyers they can not come back to court and say my lawyer was sloppy. It was their choice.
In the case of Dlamini he is a trained lawyer but not registered registration does not enhance your knowledge of law it only allows the control of the individual lawyer.
In normal Standards and Regulations, we use the word lawyer as a shorthand to describe all regulated individuals, but in reality, if someone calls themselves a lawyer, it does not necessarily mean they have an official title or are subject to any formal regulation.
This then means that all lawyers are not registered and in some jurisdictions like in England they are called solicitors.
So Dlamini did a good job but he was not registered and for that he and himself alone should face the music. His faults must not be visited on the unsuspecting defendants who requested his service.
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