Alvine Mashavidze v The State and Mr Mark Dzira

The applicant was facing a rape charge in the Regional Court and pleaded not guilty. He was represented by Mr Mlala of Cheda and Partners from the outset. On 18 June 2012, when the trial was to commence, Mr Khumalo from the same firm appeared instead, introducing himself as defence counsel acting on behalf of Mlala who would join later. Khumalo recorded the complainant's evidence-in-chief and began cross-examination. When he neared completion, Mlala arrived and attempted to take over cross-examination of the witness whose testimony he had not heard. The Regional Magistrate (Mr Dzira) objected to this procedure. The public prosecutor (Mr Katenaire) incorrectly advised that the procedure was proper and the State did not object. When Mlala persisted, the magistrate ordered him to leave the courtroom. Khumalo continued until the State closed its case, then sought a week's postponement to prepare the defence case despite having filed a straightforward defence outline at the commencement of trial. The court granted only a two-day postponement to 20 June 2012. On that date, the applicant launched an urgent application seeking to stay proceedings pending finalization of a review application filed the same day.

• Whether a legal practitioner who was absent during a witness's evidence-in-chief can properly take over cross-examination of that witness
• Whether the trial magistrate acted irregularly in refusing to allow Mlala to cross-examine the witness
• Whether the applicant was wrongfully denied representation by his legal practitioner of choice
• Whether the urgent application to stay proceedings pending review should be granted
• Whether the conduct of the defence legal practitioners constituted an abuse of court process

The application was dismissed with costs. The court ordered that the same regional magistrate should continue with the trial to finality without any further delay.

A legal practitioner may not walk into a courtroom where proceedings are in progress and purport to join in or take over cross-examination of a witness whose evidence-in-chief was given during his absence, as the practitioner does not know what the witness said. Such conduct is grossly improper. A trial magistrate is entitled to refuse such improper procedure and to eject a legal practitioner who persists in attempting to follow it. Applications designed to stay proceedings through spurious claims of irregularity, when the claimed irregularity was in fact the fault of the applicant's own legal representatives, constitute an abuse of court process and will be dismissed.

The court observed that depending on the manner in which Mlala questioned the court's authority, his conduct could be viewed as contemptuous. The court noted that the public prosecutor's remarks supporting the improper procedure were completely erroneous and misleading. The court expressed sympathy for the trial magistrate who had to deal with court officials not conversant with proper court procedures. The court remarked that the level of ignorance of procedure displayed by trained lawyers was astounding and difficult to understand. The court commented that Khumalo's request for postponement was designed merely to buy time and waste the court's time. Both Khumalo and Mlala were described as having conducted themselves improperly and were reprehended for their despicable conduct.

This case is significant for establishing proper court procedure regarding legal representation in criminal trials and condemning abuse of court process. It clarifies that legal practitioners cannot join proceedings mid-trial and take over examination of witnesses whose testimony they did not hear. The judgment also demonstrates the court's willingness to censure legal practitioners for improper conduct and attempts to delay proceedings through spurious applications. It reinforces the importance of maintaining proper standards of professional conduct and knowledge of court procedures by legal practitioners, and emphasizes that courts will not tolerate attempts to manipulate procedures to delay trials.