S v Henry (Review) (39/2025) [2025] ZAWCHC 89 (6 March 2025)

S v Henry (Review) (39/2025) [2025] ZAWCHC 89 (6 March 2025)

The court found that the accused had been represented by a person who was not authorised to practice as an advocate, which constitutes a fatal irregularity in criminal proceedings. On the authority of S v Van Eeden and related cases, such irregularity requires the proceedings to be rescinded without reference to the merits. The court determined that intervention was warranted at this stage to prevent the accused from participating in proceedings that would inevitably be set aside, thereby avoiding grave injustice. Accordingly, the criminal proceedings against the accused were reviewed, set aside, and ordered to recommence from the beginning.

Citation
[2025] ZAWCHC 89
Parties
Applicant: THE STATE; Respondent: Nizaam Henry
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 March 2025
Case Number
39/2025
Procedural Posture
Review Application / Special Review Prior to Completion of Criminal Proceedings
Outcome
Criminal proceedings against the accused set aside and ordered to recommence from the beginning.
Judges
LG Nuku, N E Ralarala
Legal Topics
Corruption, Money Laundering, Irregular Representation, Fatal Irregularity
Criminal Law Civil Procedure Corruption Money Laundering Irregular Representation Fatal Irregularity

Case Brief

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Parties

THE STATE

Applicant

Nizaam Henry

Respondent

Procedural Posture

Review Application / Special Review Prior to Completion of Criminal Proceedings

Legal Issues

  1. 1 Whether representation of the accused by a person not authorised to practice as an advocate constitutes a fatal irregularity in criminal proceedings.
  2. 2 Whether the High Court should intervene in uncompleted criminal proceedings where grave injustice may result.
  3. 3 Whether the proceedings should be set aside and recommenced due to unauthorised representation.

Ratio Decidendi

The court found that the accused had been represented by a person who was not authorised to practice as an advocate, which constitutes a fatal irregularity in criminal proceedings. On the authority of S v Van Eeden and related cases, such irregularity requires the proceedings to be rescinded without reference to the merits. The court determined that intervention was warranted at this stage to prevent the accused from participating in proceedings that would inevitably be set aside, thereby avoiding grave injustice. Accordingly, the criminal proceedings against the accused were reviewed, set aside, and ordered to recommence from the beginning.

Court Disposition

Criminal proceedings against the accused set aside and ordered to recommence from the beginning.

Orders

  • The criminal proceedings against the accused in the Regional Division of the Western Cape held at the Specialised Commercial Crime Court, Bellville under case number SH7/25/23 are hereby reviewed, set aside and are to start from the beginning.