S v SIBEKO AND OTHERS 2017 (2) SACR 457 (FB)

Review — Inherent review powers of High Court — Part-heard trial —Accused’s legal representative not qualified to practise — Fair-trial rights at stake justifying review before conclusion of trial.


During a trial in a magistrates’ court on charges of stock theft, the accused’s legal representative was struck off the roll of advocates for not having the necessary academic qualifications, an apparently forged certificate having been provided for his admission. The hearing was adjourned and the matter sent on review before a conviction was entered.

Held, that the High Court had power in terms of s 173 of the Constitution to regulate its own process, taking into account the interests of justice, and the magistrate was therefore entitled to refer the matter for review before conviction, and the High Court had power to review the proceedings before the conclusion of the trial. (See [14] – [15].)

Held, further, that, where an accused was represented by a person who did not have the necessary qualifications to practise as a legal practitioner, the accused’s right to a fair trial as contained in s 35(3) of the Constitution was infringed. Such infringement was a gross irregularity, requiring the proceedings to be set aside. (See [20] – [22].) The court ordered accordingly and that the trial had to commence afresh before a different presiding officer.


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