Convicted man’s 10-year jail sentence set aside due to lawyer’s suspension

A man sentenced to 10 years in prison will have to be released after it was revealed that his defence lawyer was suspended from practising law.

Kwazi Michael Mkhize, who has already served 18 months, was convicted and sentenced by the Pietermaritzburg Regional Court on 27 June 2023 for two offences: unlawful possession of a firearm and unlawful possession of ammunition.

He was handed 10 years for the firearm charge and three years for the ammunition count.

Mkhize’s defence in the trial, which began in November 2022, was handled by attorney Lizwi Joshua Kwela.

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However, it was later discovered that Kwela had been suspended by the Legal Practice Council (LPC) in 2020.

This prompted the state to file a special review application with the KwaZulu-Natal (KZN) High Court in Pietermaritzburg on 18 December 2024.

The state included a letter from the LPC confirming that Kwela’s suspension barred him from representing clients.

High court judgment

In a judgement delivered on 23 December, Judge Robin Mossop indicated that he attempted to uncover details about Kwela’s suspension and its lengthy duration, as the LPC’s correspondence provided limited information.

“However, it was not possible to contact the LPC, which appears to have closed for the festive period,” Mossop stated.

Based on the available information, the judge “cautiously accepted” that the LPC had valid reasons for Kwela’s suspension, noting the council’s role in safeguarding public interest.

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“In performing its duties in either suspending or striking off a member, the LPC does not impose a penalty upon the legal practitioner but rather acts in the protection of members of the public.

“[Moreover], in coming to a decision on what steps to take against a legal practitioner, the LPC weighs up the conduct of which complaint has been made against the standard of conduct expected of a legal practitioner. In doing so, it undoubtedly exercises a value judgement,” the judge explained.

Lawyer misled Kwazi Michael Mkhize

Mossop emphasised that Kwela’s suspension disqualified him from representing Mkhize.

“In appearing as he did, it is entirely probable that Mr Kwela misled both Mr Mkhize and the regional magistrate.

“Neither of them knew that he was not entitled to act as an attorney or to represent any person while under suspension.

“By failing to disclose this to either Mr Mkhize or to the regional magistrate, Mr Kwela intended to deceive both.

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“That goal he achieved, for it was only after the criminal proceedings had ended that it emerged that Mr Kwela had been suspended,” the judgement read.

Mossop further underscored the critical importance of maintaining public trust in the legal profession.

“If suspended legal practitioners are permitted to appear without consequence before the courts of this country, the proper administration of justice, in my view, will fall into disrepute.”

Kwazi Michael Mkhize should be released from prison

Given that Kwela’s actions were a “gross irregularity”, Mkhize’s conviction and sentence were revoked without examining the merits of the case.

“This is also the view of the magistrate who sent the proceedings through on special review,” Mossop noted.

He ordered Mkhize’s release from jail, pending a decision by the KZN Director of Public Prosecutions (DPP) on whether to retry the case.

However, the judge acknowledged challenges in pursuing a retrial due to the time elapsed since the conviction.

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“It is possible that witnesses may not be available. Pending the decision on whether to retry Mr Mkhize, he should, in my view, be released from his prison sentence,” the judgement stated.

Mossop directed that his ruling be sent to the LPC for potential further disciplinary action against Kwela and to the South African Police Service (Saps) to consider whether Kwela’s actions constitute a criminal offence.

The Department of Correctional Services was also instructed to implement the judgement and facilitate Mkhize’s release.