S v Nyalungu and Another (REV:96/2021) [2021] ZALMPPHC 83 (19 November 2021)

S v Nyalungu and Another (REV:96/2021) [2021] ZALMPPHC 83 (19 November 2021)

The regional court was not properly constituted to deliver judgment with only one assessor after the withdrawal of the second assessor. The presiding magistrate failed to exhaust the remedies provided in section 93ter(11) of the Magistrates' Courts Act, specifically by not affording the parties an opportunity to consent or make submissions regarding continuation of the proceedings. The matter was prematurely referred for special review. The appropriate course is to refer the matter back to the regional court for the accused and the State to either consent to continuation before the remaining assessor or present arguments for the court to consider in the interests of justice.

Citation
[2021] ZALMPPHC 83
Parties
Applicant: The State; Respondent: Bobo Mike Nyalungu; Respondent: Ntoka Calvin Motsholane
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
19 November 2021
Case Number
REV:96/2021
Procedural Posture
Criminal Review / Special Review Following Withdrawal of Assessor During Trial
Outcome
Matter referred back to the regional court for further proceedings in accordance with section 93ter(11) of the Magistrates' Courts Act.
Judges
Kganyago, Semenya
Legal Topics
Murder Trial, Assessors in Regional Court, Criminal Procedure Act Section 304, Magistrates Courts Act Section 93ter
Criminal Law Civil Procedure Murder Trial Assessors in Regional Court Criminal Procedure Act Section 304 Magistrates Courts Act Section 93ter

Case Brief

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Parties

The State

Applicant

Bobo Mike Nyalungu

Respondent

Ntoka Calvin Motsholane

Respondent

Procedural Posture

Criminal Review / Special Review Following Withdrawal of Assessor During Trial

Legal Issues

  1. 1 Whether the regional court may proceed with the trial of murder with only one assessor after the withdrawal of the second assessor.
  2. 2 Whether the parties must be afforded an opportunity to consent or make submissions regarding continuation of proceedings with one assessor.
  3. 3 What remedies are available to the presiding magistrate under section 93ter(11) of the Magistrates' Courts Act.

Ratio Decidendi

The regional court was not properly constituted to deliver judgment with only one assessor after the withdrawal of the second assessor. The presiding magistrate failed to exhaust the remedies provided in section 93ter(11) of the Magistrates' Courts Act, specifically by not affording the parties an opportunity to consent or make submissions regarding continuation of the proceedings. The matter was prematurely referred for special review. The appropriate course is to refer the matter back to the regional court for the accused and the State to either consent to continuation before the remaining assessor or present arguments for the court to consider in the interests of justice.

Court Disposition

Matter referred back to the regional court for further proceedings in accordance with section 93ter(11) of the Magistrates' Courts Act.

Orders

  • The matter is referred back to the regional court for the accused legal representatives and the State to either consent to the matter proceeding before the remaining members of the court or to present arguments for the court to consider as to what will be in the interest of justice regarding the matter.