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South Africa: Eastern Cape High Court, Makhanda
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2023
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[2023] ZAECMKHC 21
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S v Nyali and Another (CA&R 10/2023) [2023] ZAECMKHC 21 (24 January 2023)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No. CA&R 10/2023
THE STATE
and
LUNGISA
NYALI
Accused No. 1
ASISIPHO
NYALI
Accused No. 2
JUDGMENT IN RESPECT OF
PETITION
FOR SPECIAL REVIEW
HARTLE J
1.
This
matter came before me for consideration by way of a special petition
from a regional court magistrate concerning a criminal
trial which is
partheard before him and in respect of which he has brought to our
attention a certain irregularity in the proceedings.
[1]
2.
The magistrate’s concern reads as
follows:
“
4.
When the accused pleaded on the 15
th
of August 2019 they were represented by Mr. M T Mduna. Two witnesses
testified where after the (trial) was delayed due to various
reasons.
5.
The new legal representative, Mr. Magcinwana, recently brought to my
attention the fact that
Mr. Mduna did not have right of appearance in
August 2019.
[2]
6.
I contacted Mr. Mduna and he responded in writing. His response is
attached hereto.
7.
Since it is clear that Mr. Mduna did not have the right to appear on
behalf of the accused,
it is respectfully submitted that the
proceedings in East London Case RC 1/88/18 should be set aside
together with an order that
it starts
de novo
”.
3.
I
agree with the magistrate’s sentiments that the proceedings
have been tainted by an irregularity and ought to be set aside.
It is
unnecessary to determine its impact i.e. whether it is merely
technical or vitiating as it is notionally prejudicial to the
accused. The approach in general is that in principle a fatal
irregularity (i.e. one that vitiates the proceedings) takes place
where an accused is represented by someone who does not have right of
appearance.
[3]
4.
It appears that the accused’s new
legal representative is aware of and supports the referral of the
matter to this court for
appropriate intervention. There is no
objection by the state although the Director of Public Prosecution’s
consent for the
present referral is not a requirement.
5.
There
is no reason, and certainly none has been suggested, why the
proceedings, if they are proceeded with afresh, should not be
before
the same court, but in my view it is desirable that they should be
before a different court.
[4]
6.
In the result I issue the following order:
1.
The trial proceedings against the accused
which were commenced in the regional court sitting at East London
under Case No. RC 1/88/18
are set aside.
2.
The matter is to commence “
de
novo
” before a different court.
B HARTLE
JUDGE OF THE HIGH
COURT
I AGREE,
M LOWE
JUDGE OF THE HIGH
COURT
DATE OF JUDGMENT:
24 January 2023
[1]
The
High Court retains the inherent power by virtue of section 173 of
the Constitution to review proceedings of this nature where
the
matter is partheard. Section 22 of the Superior Court Act, 10
of 2013 includes, as grounds for review of the proceedings
of the
Magistrate’s Court, gross irregularity in proceedings.
[2]
The
response was not attached but no doubt indicates what the magistrate
says it does.
[3]
See
S
v Nghondzweni
[2021] JOL 29505
(FB) at paras [5] and [6].
[4]
Although
section 324
of the
Criminal Procedure Act, No. 51 of 1977
, which
applies to situation where institution of
proceedings
de novo
is ordered when an actual conviction or sentence has been set aside,
it is significant that even when the reason is that there
has only
been a “
technical
irregularity or defect in the procedure
”,
the proviso applies that “
no
judge or assessor before whom the original trial took place shall
take part in such proceedings”
.
By parity of reasoning the same consideration ought to be applicable
in
casu
.