South Africa Case Law

S v Yussif and Others (Special Review) (R69/2024; R70/2024; R71/2024)

S v Yussif and Others (Special Review) (R69/2024; R70/2024; R71/2024) [2025] ZAFSHC 77 (25 February 2025)

Court

Free State High Court, Bloemfontein

Case number

R69/2024; R70/2024; R71/2024

Judges

Nemavhidi, Chesiwe

When a magistrate becomes permanently unavailable during part-heard criminal proceedings at the pre-conviction stage, those proceedings are rendered a nullity ex lege. The High Court does not have to intervene or issue an order to set aside such proceedings, as the nullity arises automatically by operation of law. The prosecuting authority retains the discretion to reinstitute proceedings de novo before a different magistrate, without requiring permission or direction from the High Court. This approach is supported by established case law and statutory interpretation of the Criminal Procedure…

Source excerpt

• Magistrate Unavailability
• Nullity Of Proceedings
• De Novo Trial
• Criminal Procedure Act
• Special Review

S v Moema (Review) (HC02/2025)

S v Moema (Review) (HC02/2025) [2025] ZANWHC 36 (11 February 2025)

Court

North West High Court, Mafikeng

Case number

HC02/2025

Judges

T Masike, FMM Reid

The recusal of Magistrate Tsoku after evidence had been led rendered her absolutely unavailable to continue with the trial, making her functus officio. Section 118 of the Criminal Procedure Act does not permit continuation of the trial before another magistrate in these circumstances, as evidence had already been adduced. The proceedings are therefore a nullity and must be set aside. The matter is referred back to the National Prosecuting Authority to determine whether to institute proceedings de novo before a different presiding officer. The accused cannot demand a verdict at this stage, as…

Source excerpt

• Recusal Of Judicial Officer
• Nullity Of Proceedings
• Right To Fair Trial
• De Novo Trial

S v Tsame and Another (01/2024 ; 02/2024)

S v Tsame and Another (01/2024 ; 02/2024) [2024] ZANWHC 318; 2025 (2) SACR 191 (NWM) (25 October 2024)

Court

North West High Court, Mafikeng

Case number

01/2024 ; 02/2024

Judges

Petersen, Wessels

High Court review of a magistrate’s recusal on medical grounds, holding that the recusal was justified but the magistrate lacked power to order the trials de novo.

• Recusal Of Judicial Officer
• Gross Irregularity
• De Novo Trial
• Magistrates Powers
• Fair Trial Rights
• Judicial-recusal

S v Nyali and Another (CA&R 10/2023)

S v Nyali and Another (CA&R 10/2023) [2023] ZAECMKHC 21 (24 January 2023)

Court

Eastern Cape High Court, Makhanda

Case number

CA&R 10/2023

Judges

B Hartle, M Lowe

The High Court set aside part-heard regional court proceedings because the accused were represented by a person without right of appearance, and ordered a fresh trial.

• Right Of Appearance
• Irregularity In Proceedings
• Review Jurisdiction
• De Novo Trial
• Criminal-law
• Right-of-appearance

S v Seema and Another (REV32/2022)

S v Seema and Another (REV32/2022) [2022] ZALMPPHC 39 (19 July 2022)

Court

Limpopo High Court, Polokwane

Case number

REV32/2022

Judges

Kganyago, Naude-Odendaal

The High Court reviewed and set aside criminal proceedings where the accused had not pleaded to count 2 before evidence was led, and remitted the matter for trial de novo.

• Criminal Procedure Act Section 105
• Plea Process
• Trial Commencement
• De Novo Trial
• Criminal-procedure-act-section-105
• Plea-before-evidence

S v Regional Court President and Another (M 475/2019)

S v Regional Court President and Another (M 475/2019) [2020] ZANWHC 80 (22 October 2020)

Court

North West High Court, Mafikeng

Case number

M 475/2019

Judges

R D Hendricks, H Scholtz

High Court review of a regional magistrate’s recusal. The court dismissed the State’s application, confirmed recusal, and held the trial must restart de novo before another magistrate.

• Recusal Of Judicial Officer
• Review Of Magistrate Decision
• Fair Trial Rights
• De Novo Trial
• Magistrates-court-procedure
• Judicial-recusal

Gumbi and Others v S (414/2017)

Gumbi and Others v S (414/2017) [2018] ZASCA 125; 2018 (2) SACR 676 (SCA) (26 September 2018)

Court

Supreme Court of Appeal

Case number

414/2017

Judges

Ponnan, Wallis, Mocumie, Molemela, Mothle

The Supreme Court of Appeal set aside convictions after finding the post-incapacity procedure was irregular and did not lawfully recommence the trial.

• Criminal Procedure Act
• Irregularity In Trial
• Admissibility Of Evidence
• De Novo Trial
• Failure Of Justice
• Criminal-procedure

S v Bokaba (A869.2015)

S v Bokaba (A869.2015) [2015] ZAGPPHC 892 (26 November 2015)

Court

North Gauteng High Court, Pretoria

Case number

A869.2015

Judges

D S Molefe, R G Tolmay

The High Court set aside regional court proceedings after finding the accused had been represented by an unadmitted attorney, a fatal irregularity.

• Right Of Legal Representation
• Fatal Irregularity
• De Novo Trial
• Unqualified Legal Practitioner
• Criminal-law
• Legal-representation

S v Thobalo (SHW25/2013)

S v Thobalo (SHW25/2013) [2015] ZAFSHC 191 (8 October 2015)

Court

Free State High Court, Bloemfontein

Case number

SHW25/2013

Judges

Moloi, Mocumie

The court held that proceedings before a retired magistrate were abortive and a nullity, so no formal setting aside was needed and the trial could restart de novo.

• Criminal Procedure Act Section 304a
• Nullity Of Proceedings
• Jurisdiction Of Magistrate
• De Novo Trial
• Criminal-procedure-act-section-304a
• Nullity-of-proceedings

S v Mpenyane (115/2015)

S v Mpenyane (115/2015) [2015] ZAFSHC 144 (24 July 2015)

Court

Free State High Court, Bloemfontein

Case number

115/2015

Judge

C Van Zyl

On special review, the High Court set aside a guilty plea conviction and sentence after finding gross irregularities in the magistrate’s proceedings.

• Criminal Procedure Act Section 304
• Conviction And Sentence Irregularities
• Right To Legal Representation
• Automatic Review
• De Novo Trial
• Criminal-procedure