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South Africa decisions
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S v King (Review) (CA&R 54/2025) [2025] ZAECMKHC 40; 2025 (2) SACR 217 (ECMk) (15 April 2025)
The High Court set aside criminal proceedings as a nullity because the accused was represented by an admitted but unenrolled advocate lacking a right of appearance.
S v Yussif and Others (Special Review) (R69/2024; R70/2024; R71/2024) [2025] ZAFSHC 77 (25 February 2025)
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…
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S v Moema (Review) (HC02/2025) [2025] ZANWHC 36 (11 February 2025)
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…
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S v Ndzeru and Another (Review) (REV81/202) [2024] ZALMPTHC 33; 2025 (1) SACR 409 (LT) (13 November 2024)
The court found that the acting Magistrate's appointment had expired prior to the commencement of the trial, rendering him without authority to preside over the proceedings. As a result, all actions taken by the Magistrate after the expiry of his appointment were null and void. This constituted a fundamental irregularity and a violation of the accused's constitutional right to a fair trial before a competent judicial officer. The High Court determined that, although it does not ordinarily intervene in pending lower court proceedings before conviction, the circumstances were exceptional and in…
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Kotelo v S (REV/57/2024) [2024] ZALMPPHC 93; 2024 (2) SACR 564 (LP) (12 August 2024)
The court held that a partly heard criminal trial before an Acting Magistrate should not be declared a nullity merely because the acting term expired.
S v Diswane (B349/2023) [2024] ZAGPPHC 587 (25 January 2024)
The High Court held that the recusal of the magistrate rendered him absolutely unavailable, resulting in the part-heard proceedings being a nullity and set aside ex lege. There is no need for the High Court to exercise its inherent jurisdiction to set aside such proceedings, nor to order that they commence de novo. The authority to recommence proceedings rests solely with the National Prosecuting Authority, which may decide whether to re-indict the accused. The judgment emphasized that referring such matters for special review is unnecessary and burdensome, particularly where the accused's co…
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S v Fipaza (CA&R06/2021) [2021] ZAECGHC 98 (10 November 2021)
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.
Mjwara v S (AR80/15) [2021] ZAKZPHC 57 (3 September 2021)
Appeal against a rape conviction succeeded after the court found the trial was a nullity because the appellant was represented by an unauthorized person.
S v Stuurman; S v Khonze (22/2021) [2021] ZAWCHC 159; 2021 (2) SACR 559 (WCC) (18 August 2021)
The High Court held that where a regional magistrate who commenced criminal proceedings becomes unavailable due to appointment as a Judge, their jurisdiction in the matter ends and the proceedings are abortive and a nullity. There is no need for the High Court to set aside such proceedings; new proceedings may commence de novo before another regional magistrate. Section 304A of the Criminal Procedure Act does not apply as there was no conviction in either matter. The authorities cited confirm that the nullity arises ex lege and the High Court's intervention is unnecessary unless grave injusti…
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NW Civil Contractors CC v Anton Ramaano Inc & Another (1024/2018, 1076/2018) [2019] ZASCA 143; 2020 (3) SA 241 (SCA) (14 October 2019)
The Supreme Court of Appeal held that the absence of a fidelity fund certificate by the attorney does not render all proceedings and orders in which he acted void ab initio. The Attorneys Act prescribes specific consequences for non-compliance, namely disentitlement to fees and criminal sanction, but does not contemplate nullity of proceedings. The High Court's orders were impermissibly vague, indeterminate, and went beyond the relief sought, rendering them unenforceable and contrary to the rule of law. The rescission application was wrongly dismissed, as the appellant provided a reasonable e…
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