S v NHLAPHO AND OTHERS 2016 (1) SACR 489 (GP)
Trial — Assessors — Absence of — No assessors appointed by court and accused not having requested court to proceed in absence of such — Constituting gross irregularity enabling High Court to interfere, even before conviction — Magistrates’ Courts Act 32 of 1944, s 93ter.
In a matter that came before the court by way of special review, the regional magistrate realised before giving judgment that no assessors had been appointed by the court in terms of the provisions of s 93ter of the Magistrates’ Courts Act 32 of 1944, and neither had the accused requested the court to proceed without the assistance of assessors. The magistrate altered the trial and sent the matter on review.
Held, that the Gauteng Division had adopted the stance that a failure to appoint assessors was a gross irregularity. Further, despite the fact that accused had not yet been convicted, the court was able to interfere as it would be folly and a waste of the court’s time and financial resources to proceed to conviction in the full knowledge that there was an irregularity in the proceedings.
The proceedings were set aside and declared void ab initio.