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…

Source excerpt

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

S v Papiyana and Another (CA&R 19/2021)

S v Papiyana and Another (CA&R 19/2021) [2021] ZAECMHC 8; 2021 (2) SACR 327 (ECM) (23 February 2021)

Court

Eastern Cape High Court, Mthatha

Case number

CA&R 19/2021

Judges

M Notyesi, M Malusi

The court held that the provisions of section 93 ter(1) of the Magistrates' Court Act are peremptory and require the presence of two assessors in murder trials in the regional court unless the accused requests otherwise. In this case, both accused elected for the presence of assessors, and the magistrate had no discretion to proceed with only one assessor. The failure to properly constitute the court was a gross irregularity that vitiated the proceedings. Lack of human resources cannot justify non-compliance with statutory requirements. The conviction was set aside as the proceedings were not…

Source excerpt

• Proper Constitution Of Court
• Assessors In Regional Court
• Gross Irregularity
• Section 93 Ter Magistrates Court Act
• Administration Of Justice

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

S v Malindi and Others (174/89)

S v Malindi and Others (174/89) [1989] ZASCA 175; [1990] 4 All SA 433 (AD) (15 December 1989)

Court

Supreme Court of Appeal

Case number

174/89

Judges

Corbett, Botha, Smalberger, Kumleben, Nicholas

The court held that section 147(1) did not authorize removing an assessor on recusal grounds; the trial proceeded before an improperly constituted court.

• Recusal Of Assessor
• Proper Constitution Of Court
• Audi Alteram Partem
• Interpretation Of Criminal Procedure Act
• Material Irregularity
• Criminal-procedure-act