A murder trial should start anew before a different magistrate after the magistrate who dealt with the case committed an irregularity, the high court in Pietermaritzburg ruled on Friday.

The high court said the irregularity was committed when the magistrate failed to give the accused an opportunity to either testify or close his case during a trial within a trial.

Nhlonipho Mabaso was charged with one count of murder at the Greytown regional Court.

When the trial commenced in 2019, the prosecutor advised the magistrate that the state intended leading evidence of a statement Mabaso had made to a magistrate. The defence objected to the presentation of such evidence on the basis that it was inadmissible as it was not made freely and voluntarily by the accused.

The state then applied, which application was granted, that the court hold a trial within a trial to determine the admissibility of the statement.

Even though the state closed its case after leading the evidence of various witnesses, the accused never testified during the trial within a trial, and the magistrate failed to give a ruling regarding the contested evidence.

When the case continued in October 2021, the prosecutor simply called the next witness without any reference to the trial within a trial.

It was only during argument on the merits that it was learnt that the accused did not testify and that the magistrate had failed to give a ruling.

The magistrate then stopped the proceedings as the defence argued that the failure to call the accused to testify during the trial within a trial was a gross irregularity necessitating the acquittal of the accused.  

In the special review by KwaZulu-Natal acting deputy judge president Thoba Poyo-Dlwati, the high court said the magistrate committed an irregularity when he failed to give the accused an opportunity to either testify or close his case.

“It was another irregularity when he failed to make a ruling on the trial within a trial, which is prejudicial to the accused as it affects his right to a fair trial,” Poyo-Dlwati said.

However, she said the irregularity was not of such a nature that would necessitate the acquittal of the accused. She said as the magistrate had not pronounced on the accused’s guilt or otherwise, she did not believe there was a failure of justice.

“Stopping the proceedings and having them commence afresh would cure any prejudice that the accused may have suffered.”

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