S v Chauke and Another (124/09) [2009] ZAGPJHC 61; 2010 (1) SACR 287 (GSJ) (4 November 2009)

S v Chauke and Another (124/09) [2009] ZAGPJHC 61; 2010 (1) SACR 287 (GSJ) (4 November 2009)

The conviction and sentence of accused 1 were the result of a procedural irregularity, namely the transposition of accused persons in the dock, and are therefore a nullity and must be set aside. As regards accused 2, although the magistrate and the Director of Public Prosecutions requested that his acquittal be set aside and that he be re-charged, the court found that such an order would be unfair and contrary to the principles of natural justice and the constitutional right to a fair trial. The court emphasized that setting aside an acquittal without hearing the affected party would violate the audi alteram partem principle and could result in prejudice. The court distinguished the...

Citation
[2009] ZAGPJHC 61
Parties
Applicant: The State; Respondent: Stell Chauke; Respondent: Risimati Baloyi
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2009
Case Number
124/09
Procedural Posture
Review Application / Special Review of Magistrate's Court Proceedings
Outcome
The conviction and sentence of accused 1 are set aside. No order is made setting aside the acquittal of accused 2.
Judges
D S S Moshidi, N Pandya
Legal Topics
Review of Magistrates Court, Setting Aside Acquittal, Fair Trial Rights, Audi Alteram Partem, Irregular Proceedings
Criminal Law Civil Procedure Review of Magistrates Court Setting Aside Acquittal Fair Trial Rights Audi Alteram Partem Irregular Proceedings

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Parties

The State

Applicant

Stell Chauke

Respondent

Risimati Baloyi

Respondent

Procedural Posture

Review Application / Special Review of Magistrate's Court Proceedings

Legal Issues

  1. 1 Whether a High Court on review can set aside an acquittal by a magistrate's court.
  2. 2 Whether the conviction and sentence of accused 1 were irregular and a nullity.
  3. 3 Whether accused 2's acquittal should be set aside and he be re-charged.

Ratio Decidendi

The conviction and sentence of accused 1 were the result of a procedural irregularity, namely the transposition of accused persons in the dock, and are therefore a nullity and must be set aside. As regards accused 2, although the magistrate and the Director of Public Prosecutions requested that his acquittal be set aside and that he be re-charged, the court found that such an order would be unfair and contrary to the principles of natural justice and the constitutional right to a fair trial. The court emphasized that setting aside an acquittal without hearing the affected party would violate the audi alteram partem principle and could result in prejudice. The court distinguished the...

Court Disposition

The conviction and sentence of accused 1 are set aside. No order is made setting aside the acquittal of accused 2.

Orders

  • The verdict of guilty and sentence imposed on accused 1 (Mr Stell Chauke) on 16 March 2009 are reviewed and set aside.
  • If accused 2 (Mr Risimati Baloyi) is re-charged, any prosecution must commence de novo before another judicial officer.