S v Nghondzweni (163/2012) [2012] ZAFSHC 133; 2013 (1) SACR 272 (FB) (5 July 2012)

S v Nghondzweni (163/2012) [2012] ZAFSHC 133; 2013 (1) SACR 272 (FB) (5 July 2012)

The accused was represented by Mr Marabo, who did not have the right of appearance in the Regional Court or any other court in South Africa at the relevant times. This constituted a fatal irregularity, as confirmed by precedent and commentary, rendering the proceedings a nullity. The court found that Mr Marabo was neither qualified nor experienced enough to conduct the trial, and the accused did not wish him to continue. The irregularity affected the entire proceedings, not just the portion during which Mr Marabo appeared. Accordingly, the proceedings must be set aside in their entirety and the matter remitted for a fresh hearing with a qualified legal representative for the accused.

Citation
[2012] ZAFSHC 133
Parties
Applicant: The State; Respondent: Samuel Zonizi Nghondzweni
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 July 2012
Case Number
163/2012
Procedural Posture
Criminal Review / Special Review
Outcome
The proceedings in Case no RC 72/10, The State v Samuel Sonizi Nghondzweni, are set aside in their entirety and the matter is remitted to the Sasolburg Regional Court to be heard afresh.
Judges
Murray, Mocumie
Legal Topics
Right of Appearance, Nullity of Proceedings, Fair Trial Rights, Irregularity in Trial
Criminal Law Civil Procedure Right of Appearance Nullity of Proceedings Fair Trial Rights Irregularity in Trial

Case Brief

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Parties

The State

Applicant

Samuel Zonizi Nghondzweni

Respondent

Procedural Posture

Criminal Review / Special Review

Legal Issues

  1. 1 Whether the accused's representation by a person without right of appearance rendered the proceedings a nullity.
  2. 2 Whether the proceedings should be set aside in their entirety or only in part.
  3. 3 Whether the matter should be remitted for a fresh hearing with proper legal representation.

Ratio Decidendi

The accused was represented by Mr Marabo, who did not have the right of appearance in the Regional Court or any other court in South Africa at the relevant times. This constituted a fatal irregularity, as confirmed by precedent and commentary, rendering the proceedings a nullity. The court found that Mr Marabo was neither qualified nor experienced enough to conduct the trial, and the accused did not wish him to continue. The irregularity affected the entire proceedings, not just the portion during which Mr Marabo appeared. Accordingly, the proceedings must be set aside in their entirety and the matter remitted for a fresh hearing with a qualified legal representative for the accused.

Court Disposition

The proceedings in Case no RC 72/10, The State v Samuel Sonizi Nghondzweni, are set aside in their entirety and the matter is remitted to the Sasolburg Regional Court to be heard afresh.

Orders

  • The proceedings in Case no RC 72/10, The State v Samuel Sonizi Nghondzweni, are set aside in their entirety.
  • The matter is remitted to the Sasolburg Regional Court to be heard afresh.