S v Nhlapho and Others (A291/15) [2015] ZAGPPHC 273; 2016 (1) SACR 489 (GP) (6 May 2015)

S v Nhlapho and Others (A291/15) [2015] ZAGPPHC 273; 2016 (1) SACR 489 (GP) (6 May 2015)

The court held that the failure to appoint assessors in a murder trial before the regional court, as required by section 93ter of the Magistrates' Court Act, constitutes a gross irregularity. The accused were not informed of their right to request the trial proceed without assessors, and no such request appears on the record. The irregularity is fundamental and renders the proceedings void ab initio. The court further found that it has inherent jurisdiction to intervene before conviction to prevent grave injustice and waste of resources. The proceedings were declared void and the accused ordered to be released immediately.

Citation
[2015] ZAGPPHC 273
Parties
Applicant: The State; Respondent: Thabang Nhlapho; Respondent: Lucas Bongani Khalangobe; Respondent: Modibedi Rooi Thamaha; Respondent: Mtombeni Vusi Godfrey
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 May 2015
Case Number
A291/15
Procedural Posture
Review Application / Special Review Before Conviction
Outcome
Proceedings declared void ab initio due to gross irregularity; accused ordered released.
Judges
Jansen, Bertelsmann
Legal Topics
Failure to Appoint Assessors, Gross Irregularity, Composition of Court, Unreasonable Delay, Fair Trial Rights
Criminal Law Civil Procedure Failure to Appoint Assessors Gross Irregularity Composition of Court Unreasonable Delay Fair Trial Rights

Case Brief

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Parties

The State

Applicant

Thabang Nhlapho

Respondent

Lucas Bongani Khalangobe

Respondent

Modibedi Rooi Thamaha

Respondent

Mtombeni Vusi Godfrey

Respondent

Procedural Posture

Review Application / Special Review Before Conviction

Legal Issues

  1. 1 Whether the failure to appoint assessors in a murder trial before the regional court constitutes a gross irregularity rendering the proceedings void.
  2. 2 Whether the court may intervene and review proceedings before conviction due to procedural irregularity.
  3. 3 Whether the accused were properly informed of their right to have assessors appointed.

Ratio Decidendi

The court held that the failure to appoint assessors in a murder trial before the regional court, as required by section 93ter of the Magistrates' Court Act, constitutes a gross irregularity. The accused were not informed of their right to request the trial proceed without assessors, and no such request appears on the record. The irregularity is fundamental and renders the proceedings void ab initio. The court further found that it has inherent jurisdiction to intervene before conviction to prevent grave injustice and waste of resources. The proceedings were declared void and the accused ordered to be released immediately.

Court Disposition

Proceedings declared void ab initio due to gross irregularity; accused ordered released.

Orders

  • The proceedings in the matter of The State v Thabang Nhlapho, Lucas Bongani Khalangobe and Modibedi Rooi Thamaha (Case No. SHI03/2013) which commenced before Magistrate Mr Matshitse on 15 October 2015 in the Regional Court for the Regional Division of Gauteng, Benoni are declared to be void ab initio.
  • The four accused are to be released immediately.