South Africa Case Law

S v Tshabalala (Leave to Appeal) (R12/2024)

S v Tshabalala (Leave to Appeal) (R12/2024) [2025] ZAMPMBHC 67 (2 July 2025)

Court

Mbombela High Court, Mpumalanga

Case number

R12/2024

Judge

M R Moleleki

The court held that the applicant failed to demonstrate any unusual circumstances that would justify granting leave to appeal against the remittal order. The general rule, supported by both statutory and case law, is that appeals should not be entertained before the conclusion of criminal trials except in exceptional cases. The alleged irregularities, including the interaction between the Acting Regional Magistrate and the complainant, did not amount to a failure of justice or warrant appellate intervention at this stage. The interests of justice require the finalization of the criminal trial…

Source excerpt

• Leave To Appeal
• Review Of Criminal Proceedings
• Irregularity In Trial
• Remittal Order
• Section 304a Review

S v Mkhize (Special Review) (RC552/2024; 15/2024)

S v Mkhize (Special Review) (RC552/2024; 15/2024) [2024] ZAKZPHC 123 (23 December 2024)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

RC552/2024

Judges

Mossop, E Bezuidenhout

The court found that Mr Mkhize was represented at his criminal trial by Mr Kwela, who was suspended from practice and thus not entitled to appear. This constituted a gross irregularity of such fundamental nature that it nullified the entire trial proceedings. The irregularity was not disclosed to either the accused or the magistrate, amounting to deception and undermining the administration of justice. The right to legal representation is constitutionally protected, but only by practitioners in good standing. The court held that public interest and the dictates of justice require the convicti…

Source excerpt

• Right To Legal Representation
• Irregularity In Trial
• Suspended Legal Practitioner
• Nullification Of Proceedings

Booi and Others v S (Appeal) (CA&R38/2024)

Booi and Others v S (Appeal) (CA&R38/2024) [2024] ZAECMHC 86 (25 October 2024)

Court

Eastern Cape High Court, Mthatha

Case number

CA&R 38/2024

Judges

M Mhambi, RWN Brooks

Appeal against murder and assault convictions succeeded because the regional court failed to comply with section 93ter on assessors.

• Murder Trial Procedure
• Assessors In Regional Court
• Irregularity In Trial
• Right To Fair Trial
• Setting Aside Conviction
• Criminal-appeal

S v Nkumanda (CA&R45/2023)

S v Nkumanda (CA&R45/2023) [2024] ZAECMKHC 31 (19 March 2024)

Court

Eastern Cape High Court, Makhanda

Case number

CA&R45/2023

Judges

N G Beshe, M S Rugunanan

The trial of the applicant in the Regional Court was not properly constituted as it was conducted without assessors, contrary to the peremptory requirements of Section 93ter(1) of the Magistrates' Court Act. The applicant did not elect for the trial to proceed without assessors, and the absence of assessors constituted a material irregularity. The applicant provided a satisfactory explanation for the delay in bringing the review application, having acted promptly upon becoming aware of the irregularity. Accordingly, condonation for the late institution of proceedings was granted, and the conv…

Source excerpt

• Irregularity In Trial
• Failure To Comply With Statutory Requirements
• Condonation For Late Application
• Constitution Of Court

Mdluli v Minister of Justice and Correctional Services and Others (04243-2023)

Mdluli v Minister of Justice and Correctional Services and Others (04243-2023) [2024] ZAGPJHC 221 (4 March 2024)

Court

South Gauteng High Court, Johannesburg

Case number

04243/2023

Judges

TP Mudau, MHE Ismail, D Dosio

The High Court found that the applicant was represented throughout his trial by a person who did not have the right of appearance, constituting a fatal irregularity. This irregularity is so fundamental that it nullifies the entire trial proceedings, as established by precedent. The court rejected pragmatic considerations and held that only properly admitted legal practitioners may represent accused persons in criminal trials. The conviction and sentence were set aside, and the Director of Public Prosecutions was directed to decide whether to institute fresh proceedings. The applicant may not…

Source excerpt

• Right Of Appearance
• Irregularity In Trial
• Nullification Of Proceedings
• Criminal Review
• Prejudice To Accused

S v Fipaza (CA&R06/2021)

S v Fipaza (CA&R06/2021) [2021] ZAECGHC 98 (10 November 2021)

Court

Eastern Cape High Court, Grahamstown

Case number

CA&R06/2021

Judges

N G Beshe, G H Bloem

The High Court set aside a regional court conviction and sentence after finding the accused had been represented by a person not entitled to practise.

• Right To Legal Representation
• Irregularity In Trial
• Nullity Of Proceedings
• Criminal-procedure
• Right-to-legal-representation
• Trial-irregularity

Mjwara v S (AR80/15)

Mjwara v S (AR80/15) [2021] ZAKZPHC 57 (3 September 2021)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR80/15

Judges

Mngadi, Mlaba

Appeal against a rape conviction succeeded after the court found the trial was a nullity because the appellant was represented by an unauthorized person.

• Rape
• Consent
• Irregularity In Trial
• Legal Representation
• Nullity Of Proceedings
• Criminal-law

Ramontja v S (CAF04/2005)

Ramontja v S (CAF04/2005) [2020] ZANWHC 10; 2020 (1) SACR 556 (NWM) (13 February 2020)

Court

North West High Court, Mafikeng

Case number

CAF04/2005

Judges

J T Djaje, R D Hendricks, P L Nobanda

The court found that the trial court failed to properly appoint and swear in an intermediary for the child complainants as required by section 170A of the Criminal Procedure Act. The record did not reflect the intermediary's name, qualifications, or an oath or affirmation, nor did it show that the intermediary undertook to convey the general purport of questions to the witnesses. This failure constituted a material irregularity, rendering the proceedings a nullity. As a result, the evidence of the complainants was not properly before the court and could not be relied upon. The remaining evide…

Source excerpt

• Appointment Of Intermediary
• Irregularity In Trial
• Rape Of Minors
• Admissibility Of Evidence

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

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