S v DE BEER 2016 (2) SACR 106 (GP)
Trial — Accused — Legal representation of — Legal representative acting incompetently — Witnesses not called — Conviction set aside and matter referred back to court a quo.
The applicant was convicted in a regional magistrates’ court of two counts of rape and one count of sexual assault. He appealed against the convictions and sought that the matter be referred back to the court a quo for him to apply for the evidence of certain witnesses to be led, as his former attorney had neglected to do so. He said that when he asked his attorney after a postponement when these witnesses would testify, the attorney told him that it was too late and that they should have already called them. There was no reason to worry, however, his attorney added, as his case was looking good. The applicant alleged that he was dissatisfied with his attorney but had been unable to afford another at the time. He was only able to instruct a new lawyer when his employer later agreed to assist him. The new attorney discovered that the former attorney had not kept a file on the matter nor receipted cash amounts paid to him. The former attorney filed an affidavit attacking the applicant, alleging that he had appeared to be under the influence of dagga at the time, and told him to finalise the matter as soon as possible.
The court held that a plea explanation drawn up by the former attorney was shocking and unprofessional in that it contained inappropriate language in referring to the complainant. Similarly, his failure to keep a file and cash receipts, together with the personal attack on his client, was extremely unprofessional. In the light of the applicant’s right to a fair trial the convictions on two of the counts had to be set aside and the matter referred back to the court a quo.