South Africa Case Law

Director of Public Prosecutions, KwaZulu-Natal v Pillay (706/2022)

Director of Public Prosecutions, KwaZulu-Natal v Pillay (706/2022) [2023] ZASCA 105; 2023 (2) SACR 254 (SCA); [2023] 3 All SA 613 (SCA) (23 June 2023)

Court

Supreme Court of Appeal

Case number

706/2022

Judges

Dambuza, Schippers, Mothle, Matojane, Goosen

The Supreme Court of Appeal held that section 93ter(1) of the Magistrates' Courts Act requires that, in murder trials, the accused must be informed of the provision and may request that the trial proceed without assessors. Where the accused is legally represented, a formal request by the legal representative suffices to meet the statutory requirement. The record in this case showed that both the accused and their legal representative were advised of the use of assessors, understood the advice, and confirmed that no assessors were required. The trial magistrate further confirmed this before th…

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• Constitution Of Trial Court
• Murder Trial
• Role Of Assessors
• Statutory Interpretation
• Waiver Of Rights

Hlatshwayo and Another v S (AR 354/20)

Hlatshwayo and Another v S (AR 354/20) [2022] ZAKZPHC 8 (28 March 2022)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR 354/20

Judges

Bezuidenhout, Ploos van Amstel

The trial court failed to properly constitute itself in accordance with section 93ter of the Magistrate's Court Act. The record does not show that the accused were informed of their right to have assessors or that they made a positive, informed request to proceed without assessors. The statutory requirements demand a clear explanation and a recorded, knowledgeable waiver of the right to assessors. The absence of such explanation and request constitutes a fatal irregularity, rendering the trial court improperly constituted. Consequently, the convictions and sentences cannot stand and must be s…

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

S v Nyalungu and Another (REV:96/2021)

S v Nyalungu and Another (REV:96/2021) [2021] ZALMPPHC 83 (19 November 2021)

Court

Limpopo High Court, Polokwane

Case number

REV:96/2021

Judges

Kganyago, Semenya

The High Court referred a murder trial back to the regional court after an assessor withdrew, holding the statutory options under section 93ter(11) had not been exhausted.

• Murder Trial
• Assessors In Regional Court
• Criminal Procedure Act Section 304
• Magistrates Courts Act Section 93ter
• Criminal-procedure
• Murder-trial

Lubisi v S (CA&R114/2021)

Lubisi v S (CA&R114/2021) [2021] ZAECGHC 96 (6 October 2021)

Court

Eastern Cape High Court, Grahamstown

Case number

CA&R114/2021

Judges

N G Beshe, M S Rugunanan

The High Court set aside a murder conviction and sentence because the Regional Court was not properly constituted under section 93ter of the Magistrates’ Courts Act.

• Murder Trial
• Regional Court Assessors
• Magistrates Courts Act
• Procedural Irregularity
• Murder-trial
• Regional-court-assessors

Siwela v S (AR509/2017)

Siwela v S (AR509/2017) [2018] ZAKZPHC 24 (20 June 2018)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR509/2017

Judges

Madondo, Sishi

The High Court upheld an appeal and set aside a murder conviction and sentence because the regional magistrate failed to sit with assessors as required by section 93 ter.

• Murder Trial
• Magistrates Courts Act Section 93 Ter
• Irregularity In Proceedings
• Proper Constitution Of Court
• Criminal-appeal
• Murder-trial

Gayiya v S (1018/2015)

Gayiya v S (1018/2015) [2016] ZASCA 65; 2016 (2) SACR 165 (SCA) (19 May 2016)

Court

Supreme Court of Appeal

Case number

1018/2015

Judges

Mpati, Wallis, Pillay, Mathopo, Tsoka

The Supreme Court of Appeal held that a murder trial in regional court was invalid because assessors were not appointed as required by section 93ter(1).

• Murder Trial
• Appointment Of Assessors
• Court Constitution
• Magistrates Courts Act
• Irregularity In Proceedings
• Criminal-law

Du Plessis v S (A370/2007)

Du Plessis v S (A370/2007) [2009] ZAGPJHC 94; 2012 (2) SACR 247 (GSJ) (3 June 2009)

Court

South Gauteng High Court, Johannesburg

Case number

A370/2007

Judge

C.J. Claassen

The court held that the failure to appoint assessors in a murder trial in the Regional Court, as required by section 93ter(1) of the Magistrate's Court Act, constitutes a per se irregularity and a failure of justice. The accused was not given the opportunity to waive the right to assessors, and the record did not reflect compliance with the statutory requirements. The court rejected the approach in S v Naicker, which allowed for a harmless error analysis, and instead followed the authority of Rex v Price and S v Malindi, which require strict compliance with the appointment of assessors. The c…

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• Murder Trial
• Appointment Of Assessors
• Failure Of Justice
• Magistrates Court Act
• Condonation Of Late Filing

Sass v S (A411/2008)

Sass v S (A411/2008) [2008] ZAWCHC 279 (31 October 2008)

Court

Western Cape High Court, Cape Town

Case number

A411/2008

Judges

Roux, Meer

A High Court set aside a murder conviction and sentence because the regional magistrate failed to summon assessors as required by section 93 ter of the Magistrates' Courts Act.

• Murder Trial
• Magistrates Courts Act
• Irregularity In Trial
• Constitution Of Court
• Murder-trial
• Assessors