The State v Luthando Tyali

The accused was arraigned in the Regional Court, Mthatha on two charges: (a) murder read with section 51(2) of the Criminal Law Amendment Act 105 of 1997, and (b) attempted murder in contravention of section 31 of Act 9 of 1983 read with section 51(2) of the CLAA. On 15 November 2023, when charges were put to the accused, the Regional Magistrate noted the accused needed assessors. The matter proceeded with two assessors forming part of the court constitution, and one state witness (Lufuzo Hlokohla) testified. However, on 24 January 2024, when the trial continued and Dr. Qaba testified, the court proceeded without any assessors present. Neither the accused, his legal representative, nor the state were consulted about proceeding without assessors. The Regional Magistrate recognized this irregularity and referred the matter for special review, requesting nullification of the proceedings of 24 January 2024. The state case had not been closed at the time of the review.

• Whether the Regional Court proceedings were vitiated by proceeding without assessors in contravention of section 93ter of the Magistrates' Court Act 32 of 1944
• Whether the failure to engage the accused and parties about proceeding without assessors constituted an irregularity
• Whether the proceedings of 24 January 2024 should be set aside

The court ordered that: (a) The proceedings are set aside; (b) The matter is remitted to the Regional Court for hearing before a different magistrate.

Where an accused stands trial in a regional court on a charge of murder, the requirement in section 93ter(1)(b) of the Magistrates' Court Act 32 of 1944 that the judicial officer shall be assisted by two assessors is peremptory. Failure to sit with assessors without consulting the accused, the legal representative, or the state about proceeding without assessors constitutes an irregularity that vitiates the proceedings. Such proceedings must be set aside and remitted for hearing before a different magistrate.

The court did not make any significant obiter dicta observations in this judgment. The judgment was focused narrowly on the application of section 93ter and the procedural irregularity. The court's decision was based entirely on the peremptory nature of the assessor requirement and the clear violation of that statutory mandate.

This case reaffirms the peremptory nature of the requirement in section 93ter of the Magistrates' Court Act that regional courts must sit with assessors when trying murder charges. It demonstrates the High Court's review jurisdiction to correct procedural irregularities in lower courts and emphasizes that compliance with statutory requirements for court composition is fundamental to the validity of criminal proceedings. The case illustrates that even when the state case has not closed, proceedings must be set aside and remitted where fundamental procedural requirements are violated, ensuring fair trial rights are protected.