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Administrative Law [2025] ZAWCHC 135

Machard v Minister of Defence and Military Veterans and Others (11012/2022)

Machard v Minister of Defence and Military Veterans and Others (11012/2022) [2025] ZAWCHC 135; [2025] 2 All SA 810 (WCC) (30 January 2025)

Court
Western Cape High Court, Cape Town
Case number
11012/2022
Judge
VC Saldanha

The court held that the Military Discipline Supplementary Measures Act does not mandate the appointment of military assessors in all trials before a Court of a Military Judge. The statutory scheme, particularly sections 10(1)(b), 20, and 30(24), provides for an election by the accused to have two assessors appointed, one of whom may be a Warrant Officer. The Act requires that the accused be informed of this right and that the election be properly recorded. The applicant was duly informed and elected to proceed without assessors. The court found that the absence of assessors does not render th…

Source excerpt

  • Military Discipline Supplementary Measures Act
  • Statutory Interpretation
  • Fair Trial Rights
  • Appointment Of Assessors
  • Waiver Of Statutory Rights
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Criminal Law [2024] ZANWHC 65

Monyapheng v S (CA 08/2023)

Monyapheng v S (CA 08/2023) [2024] ZANWHC 65 (16 February 2024)

Court
North West High Court, Mafikeng
Case number
CA 08/2023
Judges
Petersen, Dewrance

The appeal turned on whether the Regional Magistrate complied with section 93ter(1) of the Magistrates' Courts Act in relation to the appointment of assessors. The court found that the pre-trial record merely reflected a waiver of assessors by the legal representative, without any substantive engagement or confirmation that the appellant was properly advised of her rights or that she understood the implications. The subsequent trial record did not cure this defect, as the legal representative disavowed the earlier recordal and did not confirm proper instructions from the appellant. The court…

Source excerpt

  • Murder
  • Theft
  • Appointment Of Assessors
  • Magistrates Courts Act Section 93ter
  • Fair Trial Rights
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Criminal Law [2023] ZANWHC 88

Wessie v S (CA 08/2022)

Wessie v S (CA 08/2022) [2023] ZANWHC 88 (22 June 2023)

Court
North West High Court, Mafikeng
Case number
CA 08/2022
Judges
Djaje, Petersen

The Regional Magistrate failed to comply with the peremptory provisions of section 93ter(1)(a) of the Magistrates Court Act 32 of 1944 by not appointing assessors and not affording the appellant an opportunity to waive his right to be tried with assessors before pleading to the charge of murder. This omission constitutes a fatal misdirection and gross irregularity, rendering the trial unfair and the court improperly constituted. The authorities from the Supreme Court of Appeal and other divisions are clear that such non-compliance vitiates the proceedings, and the conviction and sentence must…

Source excerpt

  • Murder
  • Appointment Of Assessors
  • Fair Trial Rights
  • Gross Irregularity
  • Condonation Of Late Appeal
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Criminal Law [2023] ZANWHC 14

Casswell v S (CA 91/2022)

Casswell v S (CA 91/2022) [2023] ZANWHC 14 (18 January 2023)

Court
North West High Court, Mafikeng
Case number
CA 91/2022
Judges
Petersen, Reddy

The court found that the Regional Magistrate failed to comply with the peremptory provisions of section 93ter(1) of the Magistrates' Court Act 32 of 1944. The appellant was not personally informed of his right to have assessors appointed, nor did he waive this right on record. The mere statement by his legal representative did not suffice. This omission constituted a fatal misdirection, rendering the trial court improperly constituted and resulting in a gross violation of the appellant's right to a fair trial. Consequently, the conviction and sentence were set aside. The application for condo…

Source excerpt

  • Fair Trial Rights
  • Appointment Of Assessors
  • Magistrates Court Act
  • Condonation
  • Minimum Sentences
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Criminal Law [2023] ZANCHC 1

Mabogole v S (CA & R 37/2022)

Mabogole v S (CA & R 37/2022) [2023] ZANCHC 1 (13 January 2023)

Court
Northern Cape High Court, Kimberley
Case number
CA & R 37/2022
Judge
Mamosebo

The court found that the Regional Magistrate erred in failing to appoint assessors at the commencement of the murder trial, as required by section 93ter(1) of the Magistrates’ Court Act and confirmed in S v Gayiya. This omission was a material procedural irregularity, rendering the trial court improperly constituted. As a result, the appellants had reasonable prospects of success on appeal. The court further held that exceptional circumstances existed, justifying the granting of bail pending appeal. The previous order dismissing the bail application was set aside and replaced with an order gr…

Source excerpt

  • Bail Pending Appeal
  • Prospects Of Success On Appeal
  • Exceptional Circumstances
  • Composition Of Court
  • Appointment Of Assessors
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Criminal Law [2022] ZAFSHC 175

Mabe v S (A45/2022)

Mabe v S (A45/2022) [2022] ZAFSHC 175 (20 July 2022)

Court
Free State High Court, Bloemfontein
Case number
A45/2022
Judges
Naidoo, Mhlambi

The court found that the magistrate failed to comply with the peremptory provisions of section 93ter(1) of the Magistrates’ Court Act. The accused was not afforded an opportunity to elect whether to proceed with or without assessors before pleading, and there was no record of an explanation or waiver. The fact that the issue may have been canvassed informally does not absolve the presiding officer from the statutory requirement. This omission constitutes a fatal misdirection, vitiating both the conviction and sentence. The appeal was upheld, and the conviction and sentence were set aside.

Source excerpt

  • Murder
  • Magistrates Court Procedure
  • Appointment Of Assessors
  • Fatal Misdirection
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Criminal Law [2021] ZASCA 17

Mntambo v S (478/2020)

Mntambo v S (478/2020) [2021] ZASCA 17 (11 March 2021)

Court
Supreme Court of Appeal
Case number
478/2020
Judges
Mocumie, Dlodlo, Mbatha, Weiner, Poyo-Dlwati

The Supreme Court of Appeal held that the failure to comply with the proviso to section 93ter(1) of the Magistrates' Courts Act 32 of 1944, by not appointing assessors and not affording the appellant the opportunity to elect whether the magistrate should sit with or without assessors, constituted a fatal misdirection. This rendered the trial court improperly constituted, vitiating the proceedings. The State conceded the point, and the conviction and sentence were set aside. The appellant's explanation for the delay in filing appeal documents was accepted as reasonable, and condonation was gra…

Source excerpt

  • Murder
  • Appointment Of Assessors
  • Magistrates Courts Act
  • Condonation
  • Court Constitution
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Criminal Law [2019] ZAGPPHC 486

Makgene and Another v S (A199/2016)

Makgene and Another v S (A199/2016) [2019] ZAGPPHC 486 (17 September 2019)

Court
North Gauteng High Court, Pretoria
Case number
A199/2016
Judges
Mokose, Munzhelele

The trial court failed to comply with the mandatory provisions of Section 93 ter (1) of the Magistrates' Court Act by not properly engaging the appellant or his legal representative regarding the appointment of assessors in the murder trial. The record did not reflect any waiver or appointment of assessors, nor did it indicate that the trial court was properly constituted. This failure rendered the conviction and sentence for murder invalid and they were set aside. Regarding the conviction for attempted murder, the evidence was found to be corroborated by independent witnesses and the appella…

Source excerpt

  • Murder Trial Procedure
  • Appointment Of Assessors
  • Self Defence
  • Appeal On Conviction
  • Sentence Appropriateness
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Criminal Law [2018] ZAKZPHC 57

Mbatha v S (AR 348/2018)

Mbatha v S (AR 348/2018) [2018] ZAKZPHC 57 (25 October 2018)

Court
Kwazulu-Natal High Court, Pietermaritzburg
Case number
AR 348/2018
Judges
Jappie, Mbatha

The court found that the regional court was not properly constituted as it failed to sit with assessors in a murder trial, and there was no evidence that the appellant had been informed of his right to dispense with assessors. This omission constituted a material irregularity. The statutory requirement for assessors is peremptory, and the absence of any record of discussion with the accused regarding assessors rendered the proceedings invalid. The respondent conceded the irregularity, and the court held that both the conviction and sentence must be set aside as incompetent.

Source excerpt

  • Murder
  • Appointment Of Assessors
  • Irregularity In Trial
  • Constitution Of Court
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Criminal Law [2017] ZAECMHC 47

Phakathi and Others v S (CA&R03/17, CA&R71/16, CA&R76/14)

Phakathi and Others v S (CA&R03/17, CA&R71/16, CA&R76/14) [2017] ZAECMHC 47 (29 June 2017)

Court
Eastern Cape High Court, Mthatha
Case number
CA&R03/17, CA&R71/16, CA&R76/14
Judges
RWN Brooks, FBA Dawood

The Supreme Court of Appeal has authoritatively held that section 93 ter(1) of the Magistrate's Courts Act 32 of 1944 is peremptory in murder trials before regional courts. The presiding magistrate must inform the accused of the requirement for two assessors and appoint them unless the accused requests that the trial proceed without assessors. In all three appeals, the magistrates failed to comply with this requirement: no assessors were appointed, and the accused were not informed of their rights. As a result, the courts were not properly constituted, and the proceedings are a nullity. The c…

Source excerpt

  • Constitution Of Regional Court
  • Appointment Of Assessors
  • Minimum Sentences
  • Nullity Of Proceedings
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South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.