- The High Court set aside Farouk Oosman Alijan’s fraud conviction and sentence after finding that the candidate attorney who represented him did not have a registered practical vocational training contract during that time.
- The judges said the irregular representation raised concerns about the effectiveness of the defence and Alijan’s constitutional right to a fair trial.
- The matter was sent back for a new trial before a different presiding officer if the Director of Public Prosecutions decides to reinstate the charge. The judgment was also referred to the Legal Practice Council.
The High Court in Durban has set aside a fraud conviction and a seven-year prison sentence after finding that the accused was represented by a candidate attorney who was not authorised to appear for him during the proceedings.
In a special review judgment delivered on 9 October 2026, Judge MJ Mathenjwa, with Acting Judge TS Khuzwayo concurring, said the representation was prejudicial to the accused and likely made the trial unfair. The court ordered that the proceedings, conviction and sentence be set aside. The case will return to the magistrates’ court for a fresh trial if prosecutors decide to reinstate the charge.
The fraud charge and seven-year sentence
Alijan was charged with fraud related to alleged misrepresentations involving invoices issued by Feroz Trucking (Pty) Ltd for transport services that were supposedly provided to Bid Freight Port Operations. Prosecutors said Alijan, together with others, deceived Bid Freight into believing the invoices were genuine and that payments made were legitimate.
According to the charge, Bid Freight paid R464,983.63 to Feroz Trucking based on these allegedly fraudulent invoices. Alijan was charged under sections 99 and 103 of the Criminal Procedure Act 51 of 1977.
The trial started on 1 July 2024, with candidate attorney Mr Melani appearing for Alijan. Melani tried to enter a plea, but the regional magistrate reminded him that the charge had to be formally put to the accused first. The proceedings were then adjourned.
When the case resumed on 15 August 2024, Alijan pleaded guilty and was convicted. On 14 November 2024, he was given a seven-year prison sentence, with two years suspended for five years.
Melani was not present when the sentence was handed down, and Mr Amod appeared on his behalf. Alijan later applied for leave to appeal against his sentence only, but the application was refused on 29 January 2025.
The case returned to the regional magistrate on 5 March 2026, when concerns were raised about whether Melani had the right to appear for Alijan. The magistrate ordered that the proceedings be transcribed and referred for special review.
Legal Practice Council confirmed there was no registered training contract
The review came after the Acting Regional Court President in KwaZulu-Natal raised concerns and questioned whether Melani’s representation was legal. The main issue was whether a candidate attorney who was not properly registered and authorised could represent someone in a criminal case.
Correspondence between the Durban Magistrates’ Court and the Legal Practice Council (LPC) showed that Melani had previously been registered under a practical vocational training contract but was required to redo part of his training.
On 9 April 2026, the LPC received an application to register Melani’s training contract again, which was scheduled for consideration in May of that year. However, when the court manager checked Melani’s status for the period he represented Alijan, the LPC confirmed on 30 July 2026 that there was no registered practical vocational training contract for him between August and November 2024.
The judges looked at Section 25 of the Legal Practice Act 28 of 2014, which sets out the rules for who can appear in court as a legal practitioner. While section 25(5) allows candidate attorneys to appear in some courts under certain conditions, this permission is not unlimited.
A candidate attorney’s right to appear depends on meeting the legal requirements for practical vocational training and supervised practice. The law allows them to appear in regional courts only if all the conditions are met.
The judgment stressed that a candidate legal practitioner can represent an accused only if all the legal requirements are met. These rules are meant to make sure a candidate works under the supervision of an experienced practitioner and has the right training and authorisation.
In Alijan’s case, because there was no registered training contract, Melani did not have the legal basis needed to represent him during the proceedings.
Judges find the irregularity threatened the right to a fair trial
Judge Mathenjwa, with Acting Judge Khuzwayo concurring, said the problem was not just Melani’s lack of authorisation. The way the proceedings unfolded also raised questions about whether Alijan had received competent legal help.
The judgment said, “The right to legal representation is intrinsically linked to an accused’s right to a fair trial.” It explained that legal representation allows an accused to present a case properly and that those taking on this responsibility must have the right training and skills.
The judges also questioned how the plea was handled. Melani had tried to enter a plea before the charge was formally put to Alijan, which the court saw as a sign that the accused might not have been properly represented.
The judgment found that the record showed Alijan “might not have received proper and effective legal representation.” It also concluded that Melani’s involvement was “not only irregular, but also prejudicial to the accused and is likely to have rendered the trial unfair.”
The court acknowledged that Alijan had been convicted of a serious offence and had already served part of his sentence. However, the judges said that because his right to a fair trial had been affected by inadequate representation, the conviction and sentence had to be set aside.
The judgment also raised concerns about Melani’s principal, Mr Amod. It noted that Amod seemed to have allowed Melani’s conduct, as the record showed he had appeared in court on Melani’s behalf at least once.
The court did not re-examine Alijan’s guilt or innocence during the special review. Its focus was on whether the original proceedings were legally sound and whether the irregular representation had made the trial unfair.
Conviction and sentence set aside, with fresh trial possible
The High Court set aside the proceedings in the lower court, including Alijan’s conviction and sentence. The matter was sent back for a new trial before another presiding officer if the Director of Public Prosecutions decides to reinstate the charge.
A trial de novo means the case must be heard from the beginning, rather than relying on the old proceedings that were set aside. This order is not an acquittal, and a new prosecution will depend on what the Director of Public Prosecutions decides.
The Registrar was directed to send a copy of the judgment to the Legal Practice Council, bringing the concerns about the candidate attorney’s representation to the attention of the professional regulatory body.
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