South Africa Case Law

Khaka and Another v S (CA 27/2023)

Khaka and Another v S (CA 27/2023) [2024] ZANWHC 64; 2024 (2) SACR 86 (NWM) (8 March 2024)

Court

North West High Court, Mafikeng

Case number

CA 27/2023

Judges

Hendricks JP, Scholtz AJ

The court found that the Regional Magistrate failed to conduct a proper fact-based enquiry to establish whether the appellants were aware of their rights under section 93 ter(1) of the Magistrates' Court Act and whether they validly requested to proceed without assessors. The mere confirmation by the legal representative, without evidence of the appellants' understanding or instruction, was insufficient. This failure constituted a fatal irregularity, rendering the court improperly constituted for the murder trial. As a result, the convictions and sentences imposed on both appellants were viti…

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• Magistrates Court Act Section 93ter
• Proper Constitution Of Court
• Waiver Of Rights
• Fair Trial Rights

Mncwabe v S (Appeal) (AR 119/22)

Mncwabe v S (Appeal) (AR 119/22) [2023] ZAKZDHC 32 (5 June 2023)

Court

Kwazulu-Natal High Court, Durban

Case number

AR 119/22

Judges

Hiralall, Chetty

The court found that the issue of assessors was properly addressed on three occasions, with the appellant's legal representatives waiving the appointment of assessors in his presence and after consultation. Following the reasoning in Ngomane v S and Charles Green v S, the court held that when an accused is legally represented, there is no overriding duty on the magistrate to explain in detail the right to assessors, and it may be assumed that the legal representative has competently advised the accused. On the merits, the court found no reason to interfere with the trial court's credibility f…

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• Murder
• Assault With Intent To Do Grievous Bodily Harm
• Magistrates Court Act Section 93ter
• Waiver Of Right To Assessors
• Credibility Of Witnesses

Nxumalo v S (AR263/2019 RC51/2013)

Nxumalo v S (AR263/2019 RC51/2013) [2022] ZAKZDHC 23 (10 February 2022)

Court

Kwazulu-Natal High Court, Durban

Case number

AR263/2019 RC51/2013

Judges

Lopes, Ploos van Amstel

The High Court set aside a murder conviction and 15-year sentence because the accused was not personally informed of, or shown to have waived, his right to assessors.

• Magistrates Court Act Section 93ter
• Constitution Of Criminal Court
• Waiver Of Right To Assessors
• Criminal Procedure Act Section 304
• Murder Trial Procedure
• Criminal-procedure

Chala and Others v Director of Public Prosecutions, KwaZulu-Natal and Another (AR107/14)

Chala and Others v Director of Public Prosecutions, KwaZulu-Natal and Another (AR107/14) [2014] ZAKZPHC 62; 2015 (2) SACR 283 (KZP) (9 December 2014)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR107/14

Judges

Vahed, Ndamase

The court held that section 93ter of the Magistrates Court Act, 1944 is peremptory in murder trials before a regional magistrate. The magistrate must appoint two assessors unless the accused, after proper explanation, elects to proceed without them. The record must reflect both the explanation and the accused's election. Failure to comply with these requirements constitutes a fatal irregularity that vitiates the entire proceedings, regardless of the evidence or consent. The court found that the applicants' trial was fatally irregular due to the absence of assessors and the lack of explanation…

Source excerpt

• Magistrates Court Act Section 93ter
• Fatal Irregularity
• Appointment Of Assessors
• Fair Trial Rights
• Setting Aside Conviction