S v Malindi and Others (115/89) [1989] ZASCA 114; [1990] 4 All SA 45 (AD) (25 September 1989)

S v Malindi and Others (115/89) [1989] ZASCA 114; [1990] 4 All SA 45 (AD) (25 September 1989)

The court held that the exclusion of Dr Joubert as assessor raised substantial procedural issues, particularly regarding the interpretation of 'unable to act' under s 147(1) of the Criminal Procedure Act and the application of the audi alteram partem rule. The failure to afford the parties and the assessor an opportunity to be heard before exclusion constituted a procedural irregularity of such magnitude that it may have resulted in a miscarriage of justice. Given the exceptional circumstances, the court directed that the appeal on the amended special entry be heard separately from the main appeal, with the record limited to Annexure 'A', subject to the State's right to apply for...

Citation
[1989] ZASCA 114
Parties
Appellant: Gcinumuzi Petrus Malindi; Appellant: Tsietsi David Mphuthi; Appellant: Naphtali Mbuti Nkopane; Appellant: Tebello Ephraim Ramakgula; Appellant: Sekwati John Mokoena; Appellant: Serame Jacob Hlanyane; Appellant: Thomas Madikwe Manthata; Appellant: Hlabeng Sam Matlole; Appellant: Popo Simon Molefe; Appellant: Mosiuoa Gerard Patrick Lekota; Appellant: Moses Mabokela Chikane; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 1989
Case Number
115/89
Procedural Posture
Criminal Appeal / Petition for Directions Regarding Prosecution of Criminal Appeal; Application for Preliminary Hearing on Special Entries
Outcome
Application granted in part; special entry 1.2 amended; preliminary appeal on special entry to be heard separately; record limited to Annexure 'A' with possible supplementation; suspension of duty to prepare full record pending outcome.
Judges
CORBETT, BOTHA, NICHOLAS
Legal Topics
Recusal of Assessor, Procedural Fairness, Special Entries, Irregularity in Trial, Audi Alteram Partem, Separate Hearing of Issues
Criminal Law Civil Procedure Recusal of Assessor Procedural Fairness Special Entries Irregularity in Trial Audi Alteram Partem Separate Hearing of Issues

Case Brief

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Parties

Gcinumuzi Petrus Malindi

Appellant

Tsietsi David Mphuthi

Appellant

Naphtali Mbuti Nkopane

Appellant

Tebello Ephraim Ramakgula

Appellant

Sekwati John Mokoena

Appellant

Serame Jacob Hlanyane

Appellant

Thomas Madikwe Manthata

Appellant

Hlabeng Sam Matlole

Appellant

Popo Simon Molefe

Appellant

Mosiuoa Gerard Patrick Lekota

Appellant

Moses Mabokela Chikane

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Petition for Directions Regarding Prosecution of Criminal Appeal; Application for Preliminary Hearing on Special Entries

Legal Issues

  1. 1 Whether the trial judge was empowered under s 147(1) of the Criminal Procedure Act to exclude an assessor for perceived bias.
  2. 2 Whether the appellants were denied procedural fairness by not being heard before the assessor was excluded.
  3. 3 Whether the appeal on special entries should be heard separately from the main appeal.

Ratio Decidendi

The court held that the exclusion of Dr Joubert as assessor raised substantial procedural issues, particularly regarding the interpretation of 'unable to act' under s 147(1) of the Criminal Procedure Act and the application of the audi alteram partem rule. The failure to afford the parties and the assessor an opportunity to be heard before exclusion constituted a procedural irregularity of such magnitude that it may have resulted in a miscarriage of justice. Given the exceptional circumstances, the court directed that the appeal on the amended special entry be heard separately from the main appeal, with the record limited to Annexure 'A', subject to the State's right to apply for...

Court Disposition

Application granted in part; special entry 1.2 amended; preliminary appeal on special entry to be heard separately; record limited to Annexure 'A' with possible supplementation; suspension of duty to prepare full record pending outcome.

Orders

  • Special entry 1.2 is amended as set out in the judgment.
  • The appeal on special entry No 1 as amended shall be heard as a preliminary appeal separately from the main appeal.