Summary of Judgment

1. Introduction

The matter was a special review conducted in the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, in terms of section 22(1)(c) of the Superior Courts Act 10 of 2013, which permits review of magistrates’ court proceedings on the ground of a gross irregularity in the proceedings.

The parties were the State and Nhlonipho Mabaso (the accused). The proceedings under review arose from a criminal trial in the Greytown Regional Magistrates’ Court (case no GRC 47/2019) before Mr C F Masikane.

Procedurally, the accused faced a charge of murder, pleaded not guilty, and was legally represented throughout. During the course of the trial, a trial-within-a-trial was initiated to determine the admissibility of a statement allegedly made by the accused to a magistrate. The review was triggered because the conduct and completion of that trial-within-a-trial were irregular, with the result that the High Court was asked to determine whether the proceedings should be set aside and what remedial order was appropriate.

The general subject matter concerned the fair-trial consequences of procedural failures relating to a trial-within-a-trial on the admissibility of an alleged confession/statement, and whether those failures constituted a gross irregularity justifying review and the setting aside of proceedings.

2. Material Facts

At a pre-trial conference on 12 July 2019, the accused indicated that he did not require assessors for the trial, as contemplated in section 93 ter of the Magistrates’ Court Act 32 of 1944. The accused was charged with murder, read with section 258 of the Criminal Procedure Act 51 of 1977, and further read with section 51(2) of the Criminal Law Amendment Act 105 of 1997. He pleaded not guilty.

When the trial commenced, the prosecutor informed the magistrate that the State intended to lead evidence of a statement made by the accused to a magistrate. The defence objected to the admissibility of this statement, contending that it was not made freely and voluntarily, and further asserting that the accused alleged he had been told by the investigating officer what to say in the statement.

In response to the objection, the State applied for a trial-within-a-trial to determine admissibility. The application was granted. The State then led evidence in the trial-within-a-trial and ultimately closed its case.

A key feature of the record, treated as decisive by the reviewing court, was that the accused never testified during the trial-within-a-trial and, further, that the presiding magistrate did not deliver a ruling on admissibility. After the State closed its case on 16 September 2021, the matter was adjourned to 12 October 2021. On the latter date, the prosecutor simply called the next witness, without any reference to the unresolved trial-within-a-trial, and neither the defence nor the magistrate addressed or corrected the omission at that stage.

It was only during argument on the merits that it emerged that the accused had not testified in the trial-within-a-trial and that no ruling had been given. The magistrate then stopped the proceedings because the defence contended that the failure to call the accused to testify in the trial-within-a-trial was a gross irregularity and argued that it necessitated the acquittal of the accused.

3. Legal Issues

The central legal questions were whether the regional court proceedings were vitiated by a gross irregularity as contemplated in section 22(1)(c) of the Superior Courts Act 10 of 2013, arising from the incomplete handling of the trial-within-a-trial.

More specifically, the High Court was required to determine whether the presiding magistrate’s failure to afford the accused the procedural opportunity to testify or close his case in the trial-within-a-trial, coupled with the failure to issue a ruling on admissibility, constituted an irregularity affecting the accused’s right to a fair trial.

The inquiry further required an evaluative determination of whether the irregularity amounted per se to a failure of justice, or whether the proceedings could be remedied in some other way. This implicated the application of legal standards to procedural facts, as well as a discretionary assessment of prejudice and the appropriate remedy (including whether a continuation of the proceedings would unfairly prejudice the accused, and whether restarting the trial would cure that prejudice).

4. Court’s Reasoning

The court approached the matter by emphasising the established function of a trial-within-a-trial and the accused’s procedural protections when admissibility of a prejudicial statement is challenged. It relied on authority indicating that the trial-within-a-trial serves, first, to provisionally withhold potentially prejudicial contents from the trial court until admissibility is determined, and second, to allow the accused to testify on the narrow question of voluntariness without exposing himself to broader cross-examination on guilt.

On the facts revealed by the record, the court held that irregularities occurred in two related respects. First, once the trial-within-a-trial had been instituted, it was irregular for the magistrate not to afford the accused an opportunity to indicate whether he would testify or close his case in that separate inquiry. Second, it was irregular for the magistrate to fail to provide a ruling on the admissibility question. The court treated these omissions as prejudicial because they directly implicated the accused’s fair-trial rights and the proper conduct of the remainder of the trial, including how the parties might choose to proceed depending on whether the statement was ruled admissible or inadmissible.

The court then considered whether the irregularities automatically resulted in a failure of justice, noting that not every procedural deviation necessarily renders a trial unfair. It referenced the principle that an irregularity is a wrongful deviation from procedures designed to secure a fair trial and that the consequences depend on whether it resulted in unfairness or a failure of justice.

In assessing remedy, the court took into account that the magistrate had not yet pronounced on the accused’s guilt or otherwise. On that basis, the court was not persuaded that a failure of justice had already occurred in the sense that would warrant an outcome such as an acquittal on review. However, the court concluded that if the proceedings were simply allowed to continue, the unresolved trial-within-a-trial and absence of a ruling would be likely to cause prejudice to the accused. The court considered that stopping the proceedings and ordering that they commence afresh would cure any prejudice arising from the irregularities.

Accordingly, the court exercised its review power to set aside the tainted proceedings and directed that the matter start again before a different presiding officer.

5. Outcome and Relief

The High Court reviewed and set aside the proceedings before Mr C F Masikane in the Greytown Regional Magistrates’ Court under case no GRC 47/2019.

The court ordered that the trial was to commence de novo before another magistrate.

No separate or express order as to costs was recorded in the judgment.

Cases Cited

S v Nglengethwa 1996 (1) SACR 737 (A).

S v De Vries 1989 (1) SA 228 (A).

S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC).

S v Moodie 1961 (4) SA 752 (A).

S v Shaik and others [2007] ZACC 19; 2008 (2) SA 208 (CC).

Legislation Cited

Superior Courts Act 10 of 2013 (section 22(1)(c)).

Criminal Procedure Act 51 of 1977 (section 258).

Criminal Law Amendment Act 105 of 1997 (section 51(2)).

Magistrates’ Court Act 32 of 1944 (section 93 ter).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the magistrate committed material procedural irregularities in the conduct of the trial-within-a-trial by failing to afford the accused the opportunity to testify or close his case in that separate inquiry and by failing to make a ruling on admissibility. These irregularities implicated the accused’s fair-trial rights and were likely to cause prejudice if the trial continued in its existing form.

The court further held that, although the magistrate had not yet delivered a verdict (and therefore the court did not consider that a failure of justice had already occurred in a manner requiring final termination of the prosecution), the appropriate remedy was to set aside the proceedings and order that the matter begin afresh before another magistrate.

LEGAL PRINCIPLES

A trial-within-a-trial serves to prevent potentially prejudicial statement evidence from being considered until admissibility is determined, and it protects an accused by permitting testimony on voluntariness without exposure to general cross-examination on guilt.

Where admissibility of a statement or confession is placed in issue, an accused is entitled to have that question determined as a separate and distinct inquiry, and the presiding officer must properly conclude that inquiry by allowing the accused to present a case (including electing whether to testify) and by delivering a ruling.

An irregularity is a deviation from procedural formalities and rules intended to ensure a fair trial; however, not all irregularities automatically produce an unfair trial, and the reviewing court must consider whether the irregularity results in a failure of justice or causes prejudice warranting remedial intervention.

Where procedural irregularities are likely to cause prejudice going forward and cannot be cured within the existing proceedings, it is competent on special review to set aside the proceedings and order that the trial commence de novo before a different presiding officer.