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[2016] ZASCA 65
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Gayiya v S (1018/2015) [2016] ZASCA 65; 2016 (2) SACR 165 (SCA) (19 May 2016)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1018/2015
In
the matter
between:
CHARLES
VUYO GAYIYA
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Gayiya
v S
(1018/15)
[2016] ZASCA 65
(19 May 2016)
Coram:
Mpati
P, Wallis, Pillay, Mathopo JJA & Tsoka AJA
Heard:
5
May 2016
Delivered:
19
May 2016
Summary:
Criminal
law – practice and procedure – trial – charge of
murder – appointment of assessors in terms of
proviso to s
93
ter
(1)
of
Magistrates’ Courts Act 32 of 1944
– such appointment
compulsory unless accused requests, prior to plea, that assessors not
be appointed – failure by
regional magistrate to invoke proviso
– court not properly constituted – purported waiver by
accused of assessors after
guilty verdict cannot cure defect.
ORDER
On
appeal from
Gauteng
Division of the High Court, Pretoria (Bertelsmann J, sitting as a
court of first instance):
The
appeal succeeds and the convictions and sentences are set aside.
JUDGMENT
Mpati
P (Wallis, Pillay and Mathopo JJA and Tsoka AJA concurring):
[1]
This appeal involves the interpretation of the proviso to
s 93
ter
(1)
of the Magistrates’ Courts Act 32 of 1944 (‘the
Magistrates’ Courts Act&rsquo
;). The appellant, to whom I
shall, purely for convenience, henceforth refer as ‘the
accused’, was arraigned before
the regional court, Bethal, on
20 February 2002 on five charges. The first (count 1) was a charge of
kidnapping, allegedly committed
on 29 September 1998.  The
second (count 2) was a charge of assault with intent to cause
grievous bodily harm, allegedly committed
on the same day. Counts 3,
4 and 5 were charges of murder, possession of a firearm without a
licence (in contravention of the provisions
of s 2 of the Arms and
Ammunition Act 75 of 1969) and possession of ammunition without a
licence (in contravention of the provisions
of s 36 of Act 75 of
1969), respectively, which were also allegedly committed on the same
day as counts 1 and 2. The accused pleaded
guilty to counts 1 and 3,
but not guilty to counts 2, 4 and 5. The regional magistrate
thereafter questioned him, in terms of s
112(1)
(b)
of the
Criminal Procedure Act 51 of 1977 (‘the Act’), in respect
of counts 1 and 3. Having satisfied himself that the
accused admitted
the allegations in the charges to which he had pleaded guilty and
that he was guilty of the offences in issue,
the regional magistrate
convicted him accordingly.
[2]
It appears that after the regional magistrate had returned a guilty
verdict in respect of counts 1 and 3 he explained the provisions
of s
115 of the Act to the accused and asked whether he was prepared to
make a statement indicating the basis of his defence in
respect of
the remaining three counts. The accused chose to exercise his right
to remain silent. The matter was then postponed.
On 7 March 2002 the
regional magistrate proceeded to question the accused in terms of s
115(2)
(b)
.
The accused, in the course of answering the questions posed, made
certain admissions that were subsequently recorded as such in
terms
of s 220. The State, being satisfied with the admissions made by the
accused and recorded by the regional magistrate in terms
of s 220,
closed its case without leading any evidence. Despite the regional
magistrate’s explanation that the exculpatory
part of the
accused’s plea explanation was not evidence in his favour and
that should he wish it to have evidential value
he should testify
under oath, the accused decided not to testify and closed his case.
After both the State and the accused had
addressed the court the
accused was convicted on counts 2, 4 and 5 on the strength of the
formal admissions that had been recorded
in terms of s 220 of the
Act. The matter was then once again postponed.
[3]
What emerges from the answers given and admissions made by the
accused during his questioning is the following. On the evening
of 29
September 1998 the accused and six others were enjoying a drink at a
certain house at Embalenhle in the district Hoëvelddrif.
They
later agreed to go to the house of one Themba to fetch a firearm that
belonged to one of the members of the group, namely
Doctor Nkambule
(Doctor), from a person named Castro. They also agreed that they
should take along a firearm so that they could
shoot Themba were he
to threaten to shoot them. When they arrived at Themba’s house
and enquired where Castro was, Themba
informed them that he was in
the room. They proceeded to the room where one of the accused’s
companions, Moyeni Mtsweni,
struck Castro on the head with a bottle,
which broke, probably as a result of the force of the blow. At that
stage the accused
was watching from where he was standing near the
door of the room in which they had found Castro and did nothing (‘Ek
het
naby die deur gestaan en kyk. Ek het niks gedoen nie’).
When Doctor asked where his firearm was Castro said it was with one

Johnny. Doctor then pointed a firearm at Castro and instructed him to
accompany them to Johnny’s home to fetch his firearm.
Castro
obliged, but before they had reached Johnny’s home Doctor said
he was going to shoot him. However, he changed his
mind and, instead,
handed the firearm to the accused, instructing him to shoot Castro
(‘skiet hom’). The accused took
the firearm, held it
against Castro’s head and fired two shots, after which he gave
the firearm back to Doctor. It is not
clear from the record whether
Castro died immediately upon being shot, but they left him at the
spot where he was shot. The accused
went home to sleep. He said that
before deciding to fetch Doctor’s firearm from Castro they
drank liquor and used drugs (‘Ons
het toe gedrink en dwelms
gebruik’). As to counts 1 and 2 the accused was convicted on
the basis of the doctrine of common
purpose.
[4]
I have serious doubts about the correctness of the accused’s
conviction on those two counts, but in the view I take of
the matter
it is not necessary to say more in that regard. At the accused’s
next court appearance on 15 March 2002 his sister,
Ms Miemie Gayiya,
testified in his favour in mitigation of sentence. After the accused
and the prosecutor had addressed the court
on sentence, the regional
magistrate stopped the proceedings and committed the accused for
sentence by the high court in terms
of s 52(
a
)(i)
of
Criminal Law Amendment Act 105 of 1997
. On 27 May 2002 the accused
made another appearance before the regional magistrate, who, for the
first time, told the accused that
he (the regional magistrate) had
omitted to inform him of his right to have assessors appointed to
assist the judicial officer
(‘reg tot assessore’) and of
the role of assessors in the proceedings. The regional magistrate
also informed the accused
that his convictions could be set aside,
presumably upon review. The accused’s response was that he did
not need assessors
at the trial, but that he would want them at the
sentencing stage.
[5]
On 30 July 2002 the accused was sentenced by Bertelsmann J in the
High Court, Eastern District Circuit Local Division, Middelburg,
as
follows:
Count
1: imprisonment for one (1) year;
Count
2:  imprisonment for one (1) year;
Count
3: imprisonment for life;
Counts
4 and 5 (taken together for purposes of sentence): six (6) months’
imprisonment.
The
court ordered that the sentences imposed in respect of counts 2, 4
and 5 be served concurrently (‘gesamentlik uitgedien
word’).
[6]
The accused’s application for leave to appeal against the
sentences imposed on him was heard only on 14 April 2014, while
his
notice of application for leave to appeal and for condonation for the
late filing thereof were lodged with the registrar of
the North
Gauteng High Court on 25 May 2010. When the application for leave to
appeal was argued before him, Bertelsmann J raised
with counsel what
he considered to be an irregularity, which he dealt with in the first
paragraph of his judgment granting leave
to appeal, where he said:
‘
There
is one fundamental problem arising in this matter. The applicant was
charged with murder in the regional court. An irregularity
occurred
as the presiding officer sat without assessors without having been
requested to do so by the defence
.’
And
further:
‘
There
are conflicting judgments on the question whether the resulting
irregularity is fatal to the proceedings, or can be condoned
if the
interests of justice are served thereby
.’
The
learned Judge consequently granted leave to appeal to this court
against both conviction and sentence. It is not clear from
the record
why there was a delay of almost four years from the date upon which
the accused’s application for leave to appeal
was lodged until
the application was argued before Bertelsmann J. The delay is in any
event unacceptable.
[7]
It is not necessary, in my view, to mention the conflicting judgments
referred to by the court below. They are collected and

comprehensively discussed in
Chala & others v Director of
Public Prosecutions, KwaZulu-Natal & another
2015 (2) SACR
283
(KZP).  Subsection (1) of
s 93
ter
of the
Magistrates’
Courts Act reads
:
‘
The
judicial officer presiding at any trial may, if he deems it expedient
for the administration of justice –
(a)
before
any evidence has been led; or
(b)
in
considering a community-based punishment in respect of any person who
has been convicted of any
offence,
summon
to his assistance any one or two persons who, in his opinion, may be
of assistance at the trial of the case or in the determination
of a
proper sentence, as the case may be, to sit with him as assessor or
assessors: Provided that if an accused is standing trial
in the court
of a regional division on a charge of murder, whether together with
other charges or accused or not, the judicial
officer shall at that
trial be assisted by two assessors unless such an accused requests
that the trial be proceeded with without
assessors, whereupon the
judicial officer may in his discretion summon one or two assessors to
assist him
.’
In
the present matter the proviso was undoubtedly of application as
count 3 was a charge of murder. It is common cause that the
accused
was never afforded an opportunity by the regional magistrate to
decide whether or not to request that the trial proceed
without
assessors before he was asked to plead to the charges he faced.
[8]
In my view, the issue in the appeal is the proper constitution of the
court before which the accused stood trial. The section
is
peremptory. It ordains that the judicial officer presiding in a
regional court before which an accused is charged with murder
(as in
this case)
shall
be assisted by two assessors at the trial, unless the accused
requests that the trial proceed without assessors. It is only where

the accused makes such a request that the judicial officer becomes
clothed with a discretion either to summon one or two assessors
to
assist him or to sit without an assessor. The starting point,
therefore, is for the regional magistrate to inform the accused

before the commencement of the trial, that it is a requirement of the
law that he or she must be assisted by two assessors, unless
he (the
accused) requests that the trial proceed without assessors.
[9]
In
R
v Price
1955 (1) SA 219
(A) the appellant had been charged on, among others,
a number of counts relating to breaches of regulations dealing with
the price
and control of hides. The Minister of Justice, acting in
terms of relevant legislation, ordered that he be tried by a Judge
and
two assessors. He was accordingly arraigned in the appropriate
superior court where he pleaded not guilty to the charges. After
the
State had closed its case the defence did likewise without leading
any evidence. At the conclusion of submissions from both
counsel in
respect of the verdict, judgment was reserved. But before a verdict
had been determined on any of the charges one of
the assessors
collapsed and died. At a later sitting of the court counsel for the
appellant made a request, in terms of another
section of the relevant
legislation, for an order that the case proceed before the Judge and
the remaining assessor. The Judge
made the order sought and a verdict
(of guilty) was delivered at a subsequent date.
[10]
Following the guilty verdict, a special entry was made on behalf of
the appellant for consideration by this court of the question:
‘
Whether
the presiding Judge, notwithstanding the application made to that end
on behalf of the accused and the concurrence therewith
of the Crown,
wrongly and irregularly ordered the proceedings to continue after the
death of the assessor, . . . inasmuch as there
was after his death,
no longer a properly constituted Court
.’
In
answering that question this court said:
‘
It
was rightly not contended on behalf of the Crown that the appellant
was precluded in any way, because of the request made on
his behalf
at the trial, from contending in this Court that the Court which had
convicted him was not a properly constituted Court.
If in fact the
Court was not properly constituted then its verdict, and consequently
also its sentence, are irregularities that
cannot be waived by an
accused person
.’
[1]
And
further:
‘
.
. . it is also clear from
Green
v Fitzgerald & others
1914 AD 652
, that where a certain number of Judges is necessary to
form a quorum, the Court is not properly constituted if its number
falls
short of that quorum, even though that number would be enough
to constitute a majority of the Court. In the present case, the
quorum
clearly was three members . . . and the fact that, in such a
quorum, the decision of two would be an effective majority does not

cure the deficiency in its quorum
.’
[2]
This
court accordingly allowed the appeal and set aside the appellant’s
convictions and sentences.
[11]
In the present matter, the quorum prescribed by the proviso to subsec
(1) of
s 93
ter
of the
Magistrates’ Courts Act was
three members, namely the
regional magistrate and two assessors, unless the accused had
requested that the trial proceed without
assessors, in which event in
his discretion the regional magistrate could, sitting alone, have
constituted a quorum. No such request
was made by the accused. The
fact that the accused, when informed of his right to assessors only
after the guilty verdicts, indicated
that he did not require
assessors and that he would only do so at the sentencing stage, did
not cure the deficiency. It follows
that the court that tried and
convicted the accused was not properly constituted. That defect could
not be waived by the accused
at the time that he purportedly did so,
or cured by the subsequent proceedings before the court below.
Counsel for the State did
not argue otherwise. The appeal must
accordingly be upheld.
[12]
In the result the following order is made:
The
appeal succeeds and the convictions and sentences are set aside.
________________________
L Mpati
President
APPEARANCES
For
the Appellant:
HL Alberts
Instructed by:
Pretoria Justice
Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent
FW van der Merwe
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
At 223C-D.
[2]
At 223F-G.