Legal Proceedings

S v Nhlapho and Others

  • The case at hand dealt with a special review under section 304A of the Criminal procedure act 51 of 1977, whereby before a conviction had taken place, the magistrate had discovered that no assessors had been appointed nor had the accused requested that the court continue without the appointment of the assessors.
  • The High Court held that the failure to appoint assessors constitutes a gross irregularity and that the court was able to interfere in the matter as the accused were not yet convicted. In this instance the proceedings were declared to be void ab initio.

Director of Public Prosecutions, Gauteng v Mphaphama

  • This case dealt an appeal by the Director of Public Prosections against a High Court order, sitting as an appeal court, holding that a minor’s consent to sexual intercourse constituted substantial and compelling circumstances thus justifying a departure from the prescribed minimum sentence of life imprisonment. The High Court thereby replaced the sentence with 20 years.
  • One of the main contentions in the case at hand was whether the State could appeal such. The enquiry was therefore whether the circumstances in question fell under the definition of an ‘appeal’ in section 16(1)(b) of the Superior Courts Act 10 of 2013.
  • The Supreme Court of Appeal however held that such did not constitute an appeal as defined in section 16(1)(b) of the Act and thus the State could not appeal a sentence imposed by the High Court, sitting as a court of appeal. However the Court noted its disapproval of the decision of the High Court.

S v Leepile

  • The case at hand dealt with the appeal of a conviction of the court a quo on the ground of bias as the magistrate had asked many leading questions to the accused some of which had been asked by the prosecution.
  • The court held that it was always important for a presiding officer to guard against conduct which would create an impression of bias. The court further noted that a presiding officer should not put ‘attacking propositions’ to an accused as it would create an impression that the presiding officer was acting as a cross-examiner and not acting within its role of an impartial umpire.
  • The court held that in the circumstances, the moving of an impartial magistrate to that of a cross-examiner resulted in the accused not having a fair trial and thus the conviction was set aside.

S v Dibakoane 

  • The case at hand dealt with an appeal based on the failure to conduct a fair trial as the magistrate had refused a postponement in order to obtain legal representation of the accused’s choice. Throughout the proceedings however, numerous postponements of the nature had already occurred.
  • The court held that the applicant was merely attempting to postpone the matter indefinitely in order to raise funds for legal representation. In this instance the court held the accused had been informed about legal aid but has subsequently refused such. Therefore the appeal was dismissed.

S v SN

  • This case dealt with the review of proceedings of the High Court which released an accused who was held to not be mentally fit to appreciate the wrongfulness of his actions and thus was advised to have been placed in an institution.
  • The court held that section 77(6)(ii)(aa) of the Criminal Procedure Act, which holds the accused if found not to be mentally capable of understanding the proceedings be detained in an institution, is peremptory even if it is found that the accused had not committed any offence and that the failure to do such amounted to a gross irregularity and the order of the court had to be set aside.

S v Chauke 

  • The case at hand dealt with the failure of a court to refer an accused for mental observations in accordance with the procedures laid out in section 78 and 79 of the Criminal Procedure Act.
  • In the trial Court, the court had asked the accused to be examined by a psychiatrist to determine the mental accountability of the accused at the time of commission of offence. The examination in question was conducted in one day and noted that even though the accused had on serval occasions been admitted to a psychiatric hospital and received antipsychotic medication, no mental illness was found.
  • The trial Court thereafter questioned the accused by asking if he understood what he was doing, whereby the accused responded that he did not. The Court however rejected the appellant’s defence of not knowing or remembering about the offences and he was subsequently convicted.
  • The appeal Court held that there was reason to suspect that the accused might have been suffering from a mental illness at the time of the commission of the offence and for this reason, the court a quo ought to have directed the matter to be enquired into and reported on in accordance with section 79 of the Criminal Procedure Act.
  • The report conducted  did not meet these requirements, nor was the investigating officer, whom the court had sought assistance from on the matter, was not an expert and thus constituted a gross irregularity. For these reasons, the court set aside the convictions and sentences.

S v Dlamini 

  • The case at hand dealt with an appeal against a sentence of life imprisonment as it was argued by the accused that there was a duplication of convictions in relation to kidnapping and rape. The accused alleged that in order to rape, one would be required to hold the victim against their will.
  • The court held that a common-sense view of the matter had to be taken and that even after the accused had committed the raped, he continued to keep the victim against her will and thus ruled that the trial court was correct.

 S v Damani

  • This case dealt with an automatic review of a the conviction and sentence of an accused, whereby the reviewing court noted that the entire trial had been conducted in isiZulu and had taken around three months to submit the matter on review.
  • When the trial court was questioned on the use of isiZulu, the court held they had conducted the trial in isiZulu as the majority of people in the area, as well as everyone in the court during the trial, spoke the language and was thus utilised in attaining the equality of all 11 official languages.
  • The court held that although noteworthy, the process should be orderly and as less disruptive as possible so as to ensure the due finality of cases in a timely manner. The court held that the structures for such were not in place currently and that therefore undue delays would occur in this instance which would have prejudicial consequences on the accused. The court held further that the decision to conduct the proceedings in isiZulu would have budgetary implications but in all other  and that such a decision to conduct in zulu would have budgetary implications but the proceedings were in all other aspects in accordance with justice.

S v Booysen

  • The case at hand dealt with the transfer of a matter from one court to another as the presiding officer deemed it in the interests of justice to transfer the matter. The appellant contends that another court may find it was not in the interests of justice as the presiding officer in the new court was the presiding officer who presided over his bail application.
  • The presiding officer during his bail application noted that it would have been in the interests of justice to preside over the trial of the accused having acquired knowledge of certain facts pertaining to the case. However the presiding officer had not recused themselves.
  • The court held that a presiding officer hearing the bail application of an accused would ordinarily be disqualified from presiding over the trial of the accused. The court further noted that the fact that the magistrate had indicated that it would not be in the interests of justice for him to preside over the trial of the accused indicated reasonable and acceptable grounds of a recusal.
  • The magistrate’s subsequent failure to recuse rendered the proceedings a nullity and thus the conviction and sentence was set aside.

S v Mathonsi 

  • This case dealt with the refusal of a magistrate to grant bail to an accused whereby, in the circumstances, the accused had made two bail applications. The second bail application provided new facts namely that a charge had been withdrawn and that his brother had passed therefore requiring him to attend certain rituals.
  • The court held that the procedure utilised was flawed due to the fact that the court had a duty to guide the party as to how the proceedings should unfold and did not actively do so and thus had failed to exercise its duty.
  • Furthermore the court held that because of the incorrect utilisation of the procedure, no second bail application was actually made and that in the unprecedented circumstances the court had to step in to remedy such a breach of a duty and thus released the accused on bail.

S v Banger

  • This case dealt with a special appeal against the dismissal of the appeal of the accused’s conviction and sentence.
  • The accused failed to first apply to the High Court for leave to appeal against the refusal rather believing that he had an automatic right of appeal to the Supreme Court of appeal.
  • The Supreme Court of Appeal reaffirmed that there is no appeal against the refusal of bail by a High Court sitting as a court of first instance within leave to appeal the court relied on the Superior Courts Act 10 of 2013 and thus the matter was dismissed.


Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another

  • This case dealt with an application to set aside an arbitration award which was however brought outside the prescribed six week period as per the Arbitration Act 42 of 1965. In order to do so, the applicant was thus required to prove a reasonable explanation for the delay together with a bona fide case holding some prospect of success therein.
  • The court held that a weak excuse could however be overlooked if there are strong prospects of success and that the first consideration for the court was whether the plaintiff had perempted.
  • The doctrine of peremption requires that a party cannot indicate its intention to comply with the judgment, otherwise known as acquiescence, and later decide to appeal it. In order to acquiesce, such requires objective conduct indicating no intention to appeal.
  • In this instance, the writing of a letter indicating the manner of payment in relation to the arbitration award, was something that the plaintiff was not compelled to do and had thus acquiesced and therefore perempted any right to set the award aside.

Wickham v Magistrate, Stellenbosch and Others

  • The case at hand dealt with a review of a conviction and sentence on the ground that the Director of Public Prosecutions improperly entered into a plea and sentence agreement, in terms of section 105A of the Criminal Procedure Act 51 of 1977. by there Director not specifying an aggravating factor in the agreement, failing to attach a victim impact statement and actively seeking to exclude the applicants participation in the proceedings as a victim.
  • The court held that in such instances the Prosecutor has a peremptory duty to afford the complainant an opportunity to make representations but only where it would be reasonable to do so, failing of which would create a ground of review.
  • The court went onto note that the correct time for doing such would be prior to its contents being disclosed in court. In the instances the applicant had failed to prove that an opportunity to make resporesentations had not been afforded and was thus the claim was dismissed.

S v Pilane

  • The case dealt with an oath being administered to witnesses who were subsequently sworn in by the interpreter and not the presiding officer. The court therefore had to determine whether such oaths were properly administered.
  • The court held that according to section 162 of the Criminal Procedure Act 51 of 1977, the oath is to be administered by a judicial officer. The oath therefore being administered by the interpreter was improper and as a result all evidence provided by these witnesses were rendered inadmissible.

S v DJ

  • The case at hand dealt with the replacing of sentences with a plea-and-sentence agreement, in terms of which the presiding officer failed to inform the parties that he believed the sentence contained within the plea agreement was unjust and inform them what he believed was just, contra to what was required of section 105A of the Criminal Procedure Act.
  • In the plea-and-sentence agreement both parties, the appellant and her husband, had plead guilty and agreed to be sentenced as follows. She would be sentenced to 18 years imprisonment for murder and 3 years for child abuse. The husband would be sentenced to 12 years for culpable homicide conditionally suspended for 3 years.
  • The trial judge in this case did not impose these sentences,  but merely replaced the sentence with what he thought was just, in this case 15 years, 3 of which were conditionally suspended for both parties. This was then appealed to the Supreme Court of Appeal.
  • The Supreme Court of Appeal held that section 105A of the Criminal Procedure Act is peremptory in nature and that the failure to comply with it amounted to a gross irregularity. Thus the court set aside both the convictions and sentences and remitted the matter to start de novo.


Disclaimer: All information contained herein does not constitute legal advice in any form or manner nor is it intended. All legal advice must be obtained or gained from a consultation with a qualified lawyer. The views and opinions expressed are those of the cited authors and not those of the publishers of iGazette. iGazette accepts no liability for any information which may be incorrect.

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