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.

2.	The magistrate’s concern reads as follows:

“4.	When the accused pleaded on the 15th 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. 
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.

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.

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