Sex at shepstone
This was because Advocate Viljoen had not made available to the court the previous inconsistent statements made by the complainant.Mr The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of the case.’ It is clear from the section that the learned magistrate had a discretion to subpoena the witnesses.the affidavits of Malanie and Perumal. What emerges from the aforegoing is that Advocate Viljoen did, indeed, have in his possession at all times during the criminal trial, the two important affidavits.
September 2010 in the Port Shepstone Regional Court the applicant in this matter was convicted of the crime of rape and sentenced to undergo four years imprisonment.
It had been found by the court a quo that on the 16that his advocate at the trial, Advocate Viljoen, failed to cross-examine the complainant and witnesses in that his version was not put to them, and he failed to consult with, and call two crucial witnesses.
Pursuant to that Ms Juglal obtained the assistance of Advocate Viljoen; Ms Juglal confirms that she at no stage played any part in the trial and did not attend the hearings when evidence was led.
The contents of the police docket were conveyed to Advocate Viljoen by the prosecutor and she had nothing to do with that process. It is clear that what happened was that Advocate Viljoen thereafter had the conduct of the matter entirely, as an advocate would have under the former pro deo system.
The learned magistrate agreed, and the record then shows that he thanks the magistrate, records that he is indebted to the court, The position of this court then is that we do not know what really transpired between the applicant and Advocate Viljoen.
The applicant records in his founding papers that he had told Advocate Viljoen that he wanted him to consult with the two witnesses and to call them.As I understand the position, the Legal Aid Board simply hands the matter over to the advocate who is then required to deal with the matter in its entirety, and without the assistance of an attorney.There is no attorney of record and no attorney/advocate relationship as one would normally have in a trial with the attorney assisting the advocate. The applicant submits in his review application papers that Ms Juglal had no authority from the Legal Aid Board to brief Advocate Viljoen and it was irregular for her to have done so.It was also suggested that Malanie would come and tell the court that the complainant had gone with her to the doctor and that the complainant had told the doctor that she had slept with a boy, without giving details of that person. In the trial, and after the applicant had given evidence in his defence, the learned magistrate recorded that, on a previous occasion when the matter was adjourned (and it is clear from the record that the applicant was not present at that hearing but that Advocate Viljoen was present), Mr Viljoen had recorded that he would conclude the case for the defence.Mr Viljoen then asked the learned magistrate if he could approach the applicant.When cross-examining the complainant Advocate Viljoen put to her that his instructions were that Malanie would come and tell the court ‘that the complainant had told her a long time afterwards that she had slept with the applicant.