S v Ralo (CA&R 39/2012) [2012] ZAECGHC 7 (16 February 2012)

S v Ralo (CA&R 39/2012) [2012] ZAECGHC 7 (16 February 2012)

The court held that the review was premature because the alleged irregularity regarding the accused's election to proceed without assessors under section 93ter of the Magistrate's Court Act could not be determined on the record as it stood. There was a dispute of fact as to whether the accused was properly advised and whether a valid election was made. The court emphasized that intervention in uncompleted proceedings is reserved for rare and exceptional circumstances, and that the irregularity must be clearly established either on the record or by affidavit. Since the nature and existence of the irregularity could not be resolved at this stage, and redress would ordinarily be available by...

Citation
[2012] ZAECGHC 7
Parties
Applicant: THE STATE; Respondent: SIMPHIWE RALO
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
16 February 2012
Case Number
CA&R 39/2012
Procedural Posture
Review Application / Special Review Prior to Conviction and Sentence; Trial Incomplete
Outcome
Review application refused; proceedings not set aside.
Judges
G Goosen, JD Pickering
Legal Topics
Composition of Court, Appointment of Assessors, Section 93ter Magistrates Court Act, Review of Uncompleted Proceedings
Criminal Law Civil Procedure Composition of Court Appointment of Assessors Section 93ter Magistrates Court Act Review of Uncompleted Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

THE STATE

Applicant

SIMPHIWE RALO

Respondent

Procedural Posture

Review Application / Special Review Prior to Conviction and Sentence; Trial Incomplete

Legal Issues

  1. 1 Whether failure to comply with section 93ter of the Magistrate's Court Act regarding assessors constitutes a reviewable irregularity in uncompleted proceedings.
  2. 2 Whether the accused was properly advised of his right to request assessors and whether a valid election was made.
  3. 3 Whether the reviewing court should intervene in uncompleted proceedings based on the alleged irregularity.

Ratio Decidendi

The court held that the review was premature because the alleged irregularity regarding the accused's election to proceed without assessors under section 93ter of the Magistrate's Court Act could not be determined on the record as it stood. There was a dispute of fact as to whether the accused was properly advised and whether a valid election was made. The court emphasized that intervention in uncompleted proceedings is reserved for rare and exceptional circumstances, and that the irregularity must be clearly established either on the record or by affidavit. Since the nature and existence of the irregularity could not be resolved at this stage, and redress would ordinarily be available by...

Court Disposition

Review application refused; proceedings not set aside.

Orders

  • The magistrate is directed to proceed with the trial of the matter.
  • The magistrate is further directed to draw to the attention of the accused and his legal representative the outcome of these proceedings by making available to them a copy of this judgment.