S v Malesa and Others (A210/14) [2014] ZAGPPHC 302 (27 March 2014)

S v Malesa and Others (A210/14) [2014] ZAGPPHC 302 (27 March 2014)

The accused were not properly represented as their advocate was not properly instructed and had been struck from the roll. This constituted a gross irregularity that compromised their right to a fair trial. The court exercised its inherent review powers, supported by section 35(3) of the Constitution, to set aside the proceedings and refer the matter back to the Regional Court for a new trial before another magistrate.

Citation
[2014] ZAGPPHC 302
Parties
Applicant: The State; Respondent: Buti Johannes Malesa and Others
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 March 2014
Case Number
A210/14
Procedural Posture
Review Application / Special Review Prior to Conviction and Sentence
Outcome
Proceedings set aside and matter referred back for retrial before another magistrate.
Judges
R G Tolmay, E Jordaan
Legal Topics
Criminal Procedure Act, Irregularity in Proceedings, Right to Fair Trial, Legal Representation
Criminal Law Civil Procedure Criminal Procedure Act Irregularity in Proceedings Right to Fair Trial Legal Representation

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Buti Johannes Malesa and Others

Respondent

Procedural Posture

Review Application / Special Review Prior to Conviction and Sentence

Legal Issues

  1. 1 Whether the accused were properly represented during the proceedings.
  2. 2 Whether the irregularity in representation compromised the accused's right to a fair trial.
  3. 3 Whether the proceedings should be set aside and referred back for a new trial.

Ratio Decidendi

The accused were not properly represented as their advocate was not properly instructed and had been struck from the roll. This constituted a gross irregularity that compromised their right to a fair trial. The court exercised its inherent review powers, supported by section 35(3) of the Constitution, to set aside the proceedings and refer the matter back to the Regional Court for a new trial before another magistrate.

Court Disposition

Proceedings set aside and matter referred back for retrial before another magistrate.

Orders

  • The proceedings are set aside.
  • The matter is referred back to the Regional Court to start de novo before another magistrate.