The KwaZulu-Natal High Court in Durban overturned the conviction and seven-year prison sentence imposed on a man after finding that a candidate legal practitioner who was not authorised to appear in court, had represented him during his criminal trial.
The court ruled that the irregular legal representation infringed Farouk Oosman Alijan's right to a fair trial and likely rendered the proceedings unfair.
In a special review judgment, Judge Mathenjwa, with Acting Judge Khuzwayo concurring, set aside the lower court's proceedings, conviction, and sentence.
The matter was referred back to the regional court for a fresh trial before a different presiding officer, should the Director of Public Prosecutions decide to reinstate the charge.
The court also directed that a copy of the judgment be sent to the Legal Practice Council (LPC).
Accused was sentenced to seven years in prison
Alijan faced a fraud charge relating to alleged fraudulent invoices submitted to Bid Freight Port Operations in Durban.
According to the judgment, the state alleged that Alijan acted with others to deceive Bid Freight by falsely representing that invoices issued by Feroz Trucking (Pty) Ltd were genuine and related to transport services provided.
The alleged misrepresentation resulted in Bid Freight paying R464,983.63 to Feroz Trucking for the services reflected in the invoices.
Alijan’s trial began on 1 July 2024, when he was represented by a candidate legal practitioner, identified in the judgment as Mr Melani.
The proceedings were adjourned, and when the matter resumed on 15 August 2024, Alijan pleaded guilty to the charge and was convicted.
On 14 November 2024, he was sentenced to seven years’ imprisonment, with two years suspended for five years.
Melani was absent during sentencing, and Alijan was represented by Mr Amod.
In January 2025, Alijan applied for leave to appeal against his sentence only. His application was refused the following day.
The matter subsequently came to the attention of the regional court magistrate, who raised concerns about Melani’s right to appear in court and ordered that the record be transcribed for a special review by the High Court.
LPC found no registered training contract
The Acting Regional Court President referred the matter for special review after raising concerns about the irregularities in the proceedings.
The central issue was whether Melani was legally authorised to represent Alijan during the trial.
The court heard that the Durban Magistrates’ Court had contacted the LPC in April 2026 to verify Melani’s status as a candidate legal practitioner at Amod Attorneys.
The LPC indicated that Melani had previously been registered for practical vocational training but was required to repeat part of the programme.
The council also confirmed that it had received an application to re-register his training contract on 9 April 2026, which was due to be considered in May that year.
In a subsequent response dated 30 July 2026, the LPC confirmed that its records showed no registered practical vocational training contract for Melani during the period in which he represented Alijan in court.
The High Court explained that the Legal Practice Act regulates who may appear on behalf of an accused person in court.
Although candidate legal practitioners may appear in certain courts under specific conditions, their right to do so depends on compliance with the statutory requirements governing their training and supervision.
The court found that the available records did not establish that Melani was registered during the relevant period.
Consequently, Alijan had been defended by someone who was not qualified to provide the legal representation he purported to offer.
The judgment also raised concerns about Melani’s principal, Amod, who appeared to have condoned the conduct. The court pointed to records indicating that Amod had at one stage appeared in court on Melani’s behalf.
Court finds possible prejudice to accused
The judges stressed that an accused person’s right to legal representation is closely linked to the constitutional right to a fair trial.
They said legal representatives must have the appropriate training and qualifications to ensure that accused persons can present their cases effectively and in accordance with the law.
The court also identified concerns about the manner in which Alijan’s plea had been handled.
According to the judgment, Melani attempted to enter a plea before the charge had formally been put to Alijan. The magistrate had to remind him that the charge first needed to be presented to the accused.
The High Court regarded this as an indication that Alijan might not have received proper and effective legal representation.
It found that the representation was not merely irregular but also prejudicial to Alijan and likely to have rendered his trial unfair.
The judges acknowledged that Alijan had been convicted of a serious offence and had already served part of his sentence.
However, they concluded that the impact of the improper representation on his constitutional right to a fair trial required setting aside the conviction and sentence.
Fresh trial depends on prosecution decision
The High Court ordered that the lower court proceedings, conviction and sentence be set aside.
The case was remitted to the regional court for a trial de novo—meaning a completely new trial—before a different presiding officer, should the Director of Public Prosecutions decide to reinstate the fraud charge.
The order does not amount to an acquittal on the fraud allegation. Instead, it allows for the possibility of fresh proceedings, subject to the prosecution’s decision.
The court further ordered the registrar to send the judgment to the LPC, which regulates legal practitioners, for its attention.