Accused persons have a fundamental right to be tried in their presence

 In Ubuntu News

In Mosikili v South African Board of Sheriffs [2022] 2 BLLR 197 (WCC), the applicant, a Sheriff falling under the jurisdiction of the South African Board for Sheriffs (the respondent), was found guilty on a slew of charges for misconduct. The respondent’s Disciplinary Committee recommended that the applicant be barred from acting as a Sheriff. The applicant appealed the decision to the Appeal Board, which appeal was rejected.

The applicant approached the court to appeal and set aside the decision barring him from practicing as a Sheriff. The applicant contended that the decision was unlawful, irrational and irregular in terms of the Sheriffs Act 90 of 1986 (the Act).

After pointing out that the applicant’s papers were not a model of clarity because he had drafted them himself and condoning the late filing of the application, the court noted that neither the applicant nor his legal representative had turned up at his disciplinary hearing. 

The applicant, however, furnished a medical note to explain his absence and the applicant’s legal representative sent a colleague to the hearing to seek a postponement. 

Notwithstanding this, the hearing continued in the applicant’s absence and the appeal was dismissed.

The question before the court was whether the decision of the Appeal Board was irrational, unfair or irregular, as contended by the applicant. 

The court noted that there is an overarching and essential right of an accused person to be tried in their presence. 

A deviation from this principal may often do more harm than good. 

Accordingly, a hearing in the absence of an accused person may be justified only in exceptional circumstances. Similarly, there should be clear, valid and convincing reasons to proceed in the absence of an accused person.

The Appeal Board found that there was nothing preventing the hearing from proceeding in the absence of the applicant on the basis that, among other things:

  • the applicant had failed to provide sufficient proof that he was unable to attend the hearing after being involved in an accident;
  • the applicant’s legal representative only applied for a postponement on the day of the hearing with no justifiable reason;
  • there was overwhelming proof that the applicant was guilty of misconduct; and
  • the Act allowed for hearings to proceed in the absence of the accused.

Having regard to the submissions placed before the Appeal Board, the court was of the view that its findings were unsustainable. 

In this regard, there was no evidence to indicate that the Disciplinary Committee made any attempt to contact the applicant or to investigate why the applicant had been absent from the hearing. 

There was no consideration of a potential adjournment or rescheduling of the hearing, nor of the impact of the decision to proceed in the absence of the applicant. 

There was also no evidence that the applicant or his legal representative had abandoned or waived their right to the hearing.

Although the Act allows for hearings to continue in the absence of an accused, the court found that the Act did not grant the Appeal Board carte blanche to approve every case when this was done. 

On the contrary, the Act did not provide an unfettered discretionary power to the Appeal Board. 

Any discretion was required to be exercised with great caution.

In the circumstances, the court found that the Appeal Board’s conclusion was fallacious for several reasons. 

The Appeal Board should have accordingly found that the decision was procedurally unfair as it failed to comply with the audi alteram partem principle.

Turning to the relief, the court held that nothing in the Act precluded the court from ordering the re-enrolment of the applicant as a sheriff merely because his expulsion was ‘only’ procedurally unfair. 

The respondent’s argument that only the Minister could re-admit an expelled sheriff was without merit.

The appeal was upheld, and the applicant’s conviction and sanction were set aside.

Nadine Mather

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