THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 706/2022
In the matter between:
DIRECTOR OF PUBLIC
PROSECUTIONS, KWAZULU-NATAL APPELLANT
and
BRIAN MUNSAMY PILLAY RESPONDENT
Neutral citation: Director of Public Prosecutions , KwaZulu-Natal v Pillay
(706/2022) [2023] ZASCA 105 (23 June 2023)
Coram: DAMBUZA ADP and SCHIPPERS, MO THLE, MATOJANE and
GOOSEN JJA
Heard: 5 May 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down is deemed to
be 11h00 on 23 June 2023.
Summary: Criminal procedure – appeal in terms of s 311 of Criminal Procedure
Act 51 of 1977 – constitution of trial court in terms of s 93ter(1) of Magistrates’
Courts Act 32 of 1944 –– whether peremptory requirements of s 93ter(1) satisfied
– duties of magistrate when accused represented– appeal upheld – conviction and
sentence reinstated.
2
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Mathenjwa AJ and Ploos van Amstel J, sitting as court of appeal):
1 The appeal is upheld.
2 The high court's order is set aside.
3 The respondent’s conviction and sentence imposed by the Regional Court
Durban, are reinstated.
4 The respondent’s appeal against his conviction is remitted to the high court.
________________________________________________________________
JUDGMENT
________________________________________________________________
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring):
[1] This is an appeal by the Director of Public Prosecutions, KwaZulu -Natal
(the DPP), in terms of s 311 of the Criminal Procedure Act 51 of 1977 (the CPA).
It lies against an order of the High Court, KwaZulu -Natal Division,
Pietermaritzburg (the high court), which set aside the conviction and sentence of
the respondent on a charge of murder.
[2] The appeal was prosecuted on the basis that it raises a question of law ,
namely the proper interpretation and application of s 93ter(1) of the Magistrates’
Courts Act 32 of 1944 (the MCA).1 The respondent rightly conceded that the
issue in this matter, raises a question of law.
1 Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi [2017] ZASCA 85; 2017 (2) SACR 384
(SCA) para 46.
3
[3] The facts are common cause. The respondent and a co-accused were
charged with murder. The trial proceeded before the Regional Court for the
Regional Division of KwaZulu -Natal at Durban (the trial court). It commenced
on 18 May 2018. The respondent was legally represented throughout the
proceedings before the trial cou rt. The record reflects several court appearances
before the commencement of the trial. The entries consist of handwritten notes
recorded by the presiding officer. On 26 February 2018, the accused appeared in
court. They were represented by Mr Luck ychand. The case was remanded to 7
March 2018 ‘for PTC’, which was accepted to be shorthand for ‘pre -trial
conference’.
[4] On 7 March 2018, the pre-trial conference occurred in open court. Both the
respondent and his co -accused were present and were represented by Mr
Luckychand. The re-typed entry on the record reads as follows:
‘Both accused before Court.
Both accused are advised of the use of lay assessors – duly understood.
Mr Luckychand confirm that no assessors will be required.
Both accd confirm the same
PTC held – See annexure.
1 day available for trial [illegible] evidence admitted.’
[5] The trial commenced on 18 May 2018. The record reads as follows:
‘COURT: Okay, just before we proceed, Mr Luckychand, you confirm for the record that
no assessors are required in this matter?
MR LUCKYCHAND: That’s correct, Your Worship.’
[6] On 18 August 2018, the respondent was convicted of murder. His co -
accused was acquitted. He was sentenced to 10 years’ imprisonment on 21 August
2018. The respondent was granted leave to appeal against his conviction. On 25
May 2022, shortly before the hearing of the appeal, the high court issued a
4
directive requiring the parties to file supplementary heads of argument dealing
with whether there had been compliance with s 93ter(1) of the MCA. That issue
had not been raised as a ground of appeal. The appeal was heard on 2 June 2022.
On 10 June 2022, the high court delivered judgment, which dealt only with the
constitution of the trial court. It held that the peremptory requirements of s
93ter(1) had not been satisfied and it set aside the respondent’s conviction.
[7] The appeal squarely raises the proper interpretation of s 93 ter(1) of the
MCA and its application. The section provides that:
‘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 the 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.’
[8] In S v Gayiya 2 this Court held that s 93 ter(1) prescribes the proper
constitution of the court before which an accused stands trial.3 It was held that in
the event that the court is not properly constituted, the proceedings are a nullity.
[9] In relation to the effect of the section, this Court held:
‘The section is peremptory. It ordains that the judicial officer presi ding in a regional court
before which an accused is charged with murder (as in this case) shall be assisted by two
2 S v Gayiya [2016] ZASCA 65; 2016 (2) SACR 165 (SCA).
3 Gayiya fn 2 above para 8 read with para 11.
5
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.’
[10] The passage is clear and unequivocal. This statement of law has been
reiterated by this Court in Shange v S 4 and in Mtambo v The State.5 Since the
Gayiya judgment in numerous high court judgments have addressed s 93ter(1) of
the MCA and sought to apply Gayiya. Some conflict in the interpretation and
application of Gayiya has emerged. In the light of this, it is necessary to resolve
the conflict.
[11] In S v Langalitshoni,6 a full bench of the Eastern Cape Division set aside
the conviction of the accused by a regional court on the basis that s 93ter(1) was
not complied with. In that matter, the accused was legally represented. After
referring to the quoted passage from Gayiya, the court said:
‘The statement of the legal principle quoted in the preceding paragraph has the effect of
creating an obligat ion on the part of a regional magistrate presiding over a trial involving a
charge of murder. There are two essential elements to the obligation. The first is to inform the
accused person before the commencement of the proceedings what the peremptory provisions
of the law require to ensure the proper constitution of the regional court. The second is to
inform the accused person that he or she may elect to proceed with the trial without assessors.’7
[12] The court then set out what a trial magistrate is required to do to discharge
the obligation, both when the accused is unrepresented and represented. In
relation to the latter scenario, the court said,
4 Shange v S [2017] ZASCA 51 para 5.
5 Mtambo v State [2021] ZASCA 17 para 9.
6 S v Langalitshoni [2018] ZAECMHC 75; 2020 (2) SACR 65 (ECM).
7 Langalitshoni para 8.
6
‘What is required is a repetition of the legal principle quoted elsewhere in this judgment.
Ideally, communication of the legal principle should be made in a direct manner by the
magistrate addressing the accused person, who should be asked at that stage to indicate whether
he or she has been made aware of the peremptory provisions. The legal representative of the
accused person may then be asked by the magistrate to confirm the correctness of the answer
given by the accused person. It is then necessary for the magistrate to ask specifically whether
the accused person wishes to permit the trial to proceed without assessors. At this point a
magistrate would not be criticised for giving a brief outline of the role played by assessors in a
criminal trial. The magistrate ought to be satisfied that the answer given by the accused person
demonstrates an appreciation of the nature of the question and reflects a reliable response in
the circumstances. The accused person has the right to be tried in a fully constituted court. An
election to proceed without assessors amounts to a waiver of such right . A waiver of a right
cannot be achieved without knowledge thereof . That this is so should be checked with the
accused person and the legal representative.’8
[13] The court concluded that in asking the legal representative ‘are you going
to use the services of the assessors ?’, the magistrate did not convey that the
‘proper constitution of the court requires that the magistrate ordinarily sit with
two assessors.9 It concluded that the question was misleading since it suggested
that the use of assessors involved an ‘additional right’. The questions and answers
did not, it found, indicate that the accused with full knowledge, waived hi s right
to a trial before ‘a properly constituted court’.
[14] In S v Ngomane and Another ,10 the accused was also legally represented
and, on two separate occasions before the commencement of the trial, the
question of the composition of the court in terms of s 93ter(1) was addressed. The
record of these exchanges was cryptic. The court took the view that the fact that
8 Langalitshoni fn 6 above para 9.
9 Langalitshoni fn 6 above para 11.
10 S v Ngomane and Another [2021] ZAGPPHC 172; 2021 (2) SACR 654 (GP).
7
the notes were cryptic, was of no consequenc e. The magistrate was, it held,
clearly alert to the issue of assessors by addressing it on two occasions.11
[15] Dealing with Langalitshoni, the court in Ngomane, reasoned that:
‘Accordingly, when the accused is legally represe nted, there is no overriding dut y on the
presiding magistrate to explain to the accused in any detail each and every single one of his
numerous constitutional rights.’12
…
‘It is obvious in this case that the legal repres entative of the appellants was also fully alert to
the issue of assessors, which was attended to and dispose d of when the appointment of
assessors was addressed by the magistrate and waived on behalf of the appellants. The section
provides that only the ac cused, obviously as advised by his legal representative and through
his legal representative, may waive the appointment of assessors.’13
[16] These passages indicate a sharp difference in judicial opinion. It is two -
fold. On the one hand, it relates to the ambit of a magistrate’s duties in relation to
s 93ter(1) of the MCA where the accused is represented. On the other, it concerns
the sufficiency of ‘evidence’ required to establish that an accused person has
elected to proceed with a trial in the absence o f assessors. There are several
judgments in the KwaZulu-Natal Division, of which the judgment under appeal
is one, where the issue has arisen.
[17] Before dealing with these judgments , reference should be made to Chala
and Others v Director of Public Pro secutions, KwaZulu-Natal, and Another,14
which predates Gayiya. In that matter, Vahed J concluded that a failure to
properly invoke the provisions of the section would always constitute a fatal
11 Ngomane para 17.
12 Ngomane para 19.
13 Ngomane para 20.
14 Chala and Others v Director of Public Prosecutions, KwaZulu-Natal, and Another [2014] ZAKZPHC 62; 2015
(2) SACR 283 (KZP).
8
irregularity resulting in the proceedings being set aside.15 The learned judge then
went on to state:
‘I am of the view also that to overcome the problems as highlighted by these cases it should
always appear from the record of proceedings in cases where s 93ter is required to be invoked,
that a proper explanation is given by the magistrate to the accused persons of the choice they
have in the appointment of assessors, together with a brief exposition of the import of that
choice and as to what is required of the m. The record should also reflect, after having given
such explanation and requesting such response from accused persons, in cases where they elect
not to have assessors, that the magistrate nevertheless still considered whether such course was
advisable in the particular case before him or her. All of this should appear on the record.’16
[18] In Nxumalo v S,17 the court raised the issue of the constitution of the court
in terms of s 93ter(1), in an appeal against the sentence. The accused were legally
represented at the trial. The record indicated that, on 26 September 2013, their
legal representative informed the court that ‘the defence does not require
assessors’. At a pre-trial conference held on 9 December 2013, this was reiterated.
When the trial c ommenced on 31 March 2014, the magistrate asked the legal
representative whether what was recorded at the pre-trial conference was still the
case, and it was confirmed.
[19] The court held that Gayiya had endorsed the approach set out in Chala.18
It held that Langalitshoni had expanded on the approach previously adopted. It
found that the proviso to s 93 ter(1) was never explained to the accused and that
he had not made a request not to sit with assessors. It set aside the conviction and
sentence.
15 Chala para 27.
16 Chala para 28.
17 Nxumalo v S [2022] ZAKZDHC 23 (10 February 2022) (Lopes and Ploos Van Amstel JJ).
18 Nxumalo para 7.
9
[20] On 28 March 2022, judgment was delivered in Hlatshwayo and Another v
S.19 It followed Nxumalo. It held that the record did not disclose that the proviso
was explained and found that the trial court was not properly constituted. It set
aside convictions and sentences. Zulu v State20 was delivered on 13 May 2022. In
that case, the question relating to the constitution of the trial court in terms of s
93ter(1) was not dealt with in pre-trial proceedings. Zulu also followed Nxumalo.
The court set aside the convictions and remitted the matter to the regional court
for the trial to commence de novo.
[21] On 29 July 2022, the judgment in Green v State21 (Green) was delivered.22
Green marked a departure from the approach adopted in the earlier judgments. In
that matter, the minute of a pre -trial conference recorded that ‘no lay assessors
[are] required .’ Dumisa AJ, who wrote the main judgment, accepted that the
requirements of s 93 ter(1) were met. He held that there was no reason to doubt
the competenc e of the legal representative and that the court was entitled to
assume that the accused had made his election with the benefit of advice.
[22] In a concurring judgment, Olsen J addressed the conflict between Ngomane
and Langalitshoni. In relation to the j udgments of Nxumalo, Hlatshwayo and
Zulu, Olsen J stated:23
‘I have not found a report of any case in this division in which it was held, before the judgment
in Langalitshoni was handed down, that a simple record of a request by an accused (conveyed
by his legal representative) that the magistrate sits alone is inadequate to establish the proper
constitution of a court presided over by a magistrate alone. That accords with my understanding
of the attitude of this Court at the time, that a record of the choice alone is sufficient. I have
19 Hlatshwayo and Another v State [2022] ZAKPHC 8 (28 March 2022) (Bezuidenhout AJ and Ploos van Amstel
J).
20 Zulu v State [2022] ZAKPHC 20 (13 May 2022) (Khallil AJ and Chili J).
21 Green v State [2022] ZAKPHC (29 July 2022) (Dumisa AJ and Olsen J).
22 Judgment in the matter presently under appeal was delivered on 10 June 2022, after Green was argued, but
before judgment was delivered.
23 Green fn 21 above para 21.
10
found three judgments which post-date Langalitshoni in which that case was followed in this
division without comment. [References to Nxumalo, Hlatshwayo and Zulu omitted.]
Despite the fact that Ngomane was published in 2021, the judgment was not drawn to the
attention of the judges who presided in the three cases, just mentioned. Being unaware of this
conflict, they did not deal with it. In the circumstances, I do not believe that in this appeal we
are bound to follow the three decisions.’
[23] The court was critical of the use of phrases like ‘properly constituted court’,
or ‘fully constituted court ’ as used in Langalitshoni. It was critical of its
characterisation of the accused’s election as being an incidence of waiver. It
declined to follow the Langalitshoni reasoning.
[24] This brings me to the judgment in the matter under appeal. In this instance
the high court was aware of the judgment in Ngomane. It did not, however,
engage with the conflict in approach between Ngomane and Langalitshoni.
Instead, it asserted that:
‘In Ngomane the court appears to have entirely overlooked that in Gayiya the accused was also
legally represented, and Mpa ti P clearly stated that the accused must be informed by the
presiding officer at the trial that by law he or she is required to be tried in the presence of
assessors. Accordingly, the issue of assessors is canvassed with the accused and that
communication should appear in the record.’
[25] The high court then considered Nxumalo, accepting that it endorsed
Langalitshoni. It found on the facts that the respondents were not informed of the
right to be tried in the presence of assessors. It concluded that, on the facts, the
case was on all fours with Nxumalo and that it was bound by that judgment.
[26] The high court’s perfunctory treatment of Ngomane on the basis that the
court had overlooked the fact that, in Gayiya, the accused was represented, is
unfortunate. It is also wrong. In Gayiya, the accused was not represented at the
11
stage that the trial court dealt with s 93 ter. There are several p assages in the
judgment of Mpati P which indicate this fact. For instance, the judgment indicates
that the court questioned the accused on his plea of guilty to satisfy itself that he
admitted all of the elements of the offences. The judgment records that the
accused addressed the court after he had closed his case. He also addressed the
court in relation to the sentence. This would not have occurred had the accused
been represented.
[27] The high court’s error caused it to construe Gayiya as laying down a
principle that the presiding officer is obliged to address an accused person
directly, and to explain the ambit and effect of s 93 ter(1) to an accused person
without reference to their legal representative. Gayiya did not lay down such
principle. The judgment, it must also be stated, did not endorse the approach
advocated in Chala.24 It merely referred to the exposition of the case law set out
in Chala.25 The judgment in Gayiya requires only that the magistrate presiding at
the trial brings to the attention of an accused person the provisions of s 93 ter(1)
and establish es whether the accused has made a request to proceed without
assessors. In the event that the accused makes such request, the magistrate may
exercise a discretion regarding the appointment of assessors.
[28] It is necessary to say something about the request which may be made by
an accused. The court in Langalitshoni construed s 93ter(1) as conferring upon
an accused person a right to be tried by a ‘fully’ or ‘properly’ constituted cour t,
namely a court including assessors. It held that the election not to do so amounts
to a waiver of the right, which can only occur if the accused is fully cognisant of
their rights. Other courts, as indicated, have also used the words ‘election’ and
waiver’ to characterise the request.
24 As erroneously stated in Nxumalo and Hlatshwayo. See para 19 above.
25 Gayiya fn 2 above para 7.
12
[29] Section 93ter(1) deals, as this Court has held, with the constitution of the
court. It regulates the criminal jurisdiction of a regional court. 26 The section
permits the involvement of persons, in addition to appointed judicial officers, in
the adjudication of criminal matters within the jurisdiction of a magistrate’s court.
It does so on a discretionary basis by way of an election made by the presiding
judicial officer, except in the case of a murder charge. In the latter case, the
section provides for the peremptory involvement of assessors to assist the
presiding judicial officer. In both instances, the participation of the assessors is
delineated, and provision is made for disqualification, recusal, and the
continuation of the trial without an assessor.27
[30] Section 93ter (1) does not confer upon an accused person a right to be tried
by a ‘properly constituted’ court. The language employed in s 93 ter(1) confers
only a right to request that the trial proceed without assessors. The request is not
dispositive. Once the request is made, the magistrate has a discretion to summon
one or two assessors to assist them, notwithstanding the request. The fact that the
court has a discretion to summon assessors despite the request, effectively negates
the notion of any kind of ‘election’ by the accused.
26 The section appears in Chapter XII of the MC Act, which relates to the criminal jurisdiction of the magistrate’s
court.
27 MC Act s 93ter(11) provides:
‘(a) If an assessor—
(i) dies;
(ii) in the opinion of the presiding officer becomes unable to act as an assessor;
(iii) is for any reason absent; or
(iv) has been ordered to recuse himself or herself or has recused himself or herself in terms of subsection (10),
at any stage before the completion of the proceedings concerned, the presiding judicial officer may, in the interests
of justice and after due consideration of the arguments put forward by the accused person and the prosecutor—
(aa) direct that the proceedings continue before the remaining member or members of the court;
(bb) direct that the proceedings start afresh; or
(cc) in the circumstances contemplated in subparagraph (iii), postpone the proceedings in order to obtain the
assessor’s presence:
Provided that if the accused person has legal representation and the prosecutor and the accused person consent
thereto, the proceedings shall, in the circumstances contemplated in subparagraphs (i), (ii) or (iv), continue before
the remaining member or members of the court.’
13
[31] What s 93ter(1) requires is that an accused person must be informed of the
section’s mandatory provisions and that he may request that the trial proceed
without assessors. Gayiya does not hold that the magistrate is obliged to only
address the accused directly, or to explain the nature of the rights conferred by
the section. It is not nece ssary, for present purposes, to traverse the obligations
imposed upon a judicial officer in circumstances where an accused person is
unrepresented. They are well understood.
[32] Where an accused person is legally represented, the obligation which rests
upon a presiding officer is of a different character. The presiding officer remains
under an obligation to ensure that the trial is fair and that an accused person’s
constitutional rights are protected. But that general obligation is to be carried out
in the light of the accused having exercised the right to legal representation.
Section 25(3)(f) of the Constitution confers upon an accused person the right to
choose and be represented by a legal practitioner. In S v Mpongoshe 28 this Court
held that section 73(2) of the CPA confers upon an accused the wider right to be
represented. In that case it was held that the right to legal representation
encompassed the right to have a plea tendered vicariously by the legal
representative.
[33] In Beyers v Director of Public Prosecutions, Western Cape,29 it was held
that:
‘The idea of being represented by a legal adviser cannot simply mean having somebody next
to you to speak on your behalf. Representation entails that the legal adviser will act in your
best interests, will represent you, will say everything that need be said in your favour, and will
28 S v Mpongoshe 1980 (4) SA 593 (A) at 603B-C.
29 Beyers v Director of Public Prosecutions, Western Cape 2003 (1) SACR 164 (C) at 166j-167a.
14
call such evidence as is justified by the circumstances in order to put the best case possible
before the court in your defence.’
[34] ‘Representation’ in this sense is not confined to the conduct of the trial. A
legal representative, who is engaged to represent an accused, is obliged to act in
the best interests of their client. That means, inter alia, to act according to the
highest standards of professional et hics; to advise the client of their rights fully
and properly; and to guide and advise the client in exercising of those rights. The
legal representative must prepare thoroughly and properly on all aspects of the
case. This includes advising the client about s 93 ter(1), where it applies,
informing the magistrate of the process and whether a request is made to proceed
without assessors.
[35] A presiding officer must, in the first instance, respect an accused person's
choice of legal representative and must defer to the legal representative’s conduct
of the matter. These are general principles which are well established. They
inform our adversarial system of trial adjudication. 30 It is against th is backdrop
that the duties of a trial magistrate must be vi ewed. Where an accused is
represented, it must be established that the representative and the accused were
aware of the provisions of the section, and whether the accused, as represented,
has made a request as envisaged. It is incumbent upon the presiding officer to
ensure that the court is constituted in accordance with s 93ter(1). As indicated in
Gayiya, the presiding officer must take the lead in doing so at a stage before any
evidence is led.
30 See R v Matonsi 1958 (2) SA 450 (A) at 456; R v Baartman and Others 1960 (3) SA 535 at 538; S v Mkhise; S
v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A) at 874E; S v Louw 1990 (3) SA 116 (A) at 124B-125E.
15
[36] The approach regarding the intended reliance upon prescribed minimum
sentences as provided by s 51 of Act 105 of 1997, is instructive. In S v Legoa,31
it was held that the concept of substantive fairness under the Constitution requires
that an accused be informed of facts , which the State intends to prove to bring
him within the increased sentencing jurisdiction provided by that Act. The court
declined to lay down a general rule regarding the form of notice. It held that:
‘Whether the accused’s substantive fair trial right, including his ability to answer the charge,
has been impaired will therefore depend upon a vigilant examination of the relevant
circumstances.32
[37] In S v Kolea,33 this Court reaffirmed the principle in Legoa. It also endorsed
the approach set out by Ponnan JA in a minority judgment in S v Mashinini and
Another,34 where the learned judge stated that the fair trial enquiry is first and
foremost a fact -based enquiry. The court in Kolea held that the conclusion to
which the majority had come was wrong.35
[38] Although we are not here dealing with a fair trial enquiry, compliance with
s 93ter(1) of the MCA is no less a fact-based enquiry. In light of this, it is equally
undesirable to lay down a general rule regarding what must be done to establish
compliance with the section. The set of guidelines proffered in Langalitshoni,
strays into this terrain. The requirements are at odds with the notion of a right to
legal representation. They are also premised upon a misconception of the nature
of the right conferred by s 93ter(1) and the application of principles of waiver.
[39] The high court concluded that the respondent’s right was not explained to
him. Before this Court, c ounsel for the respondent contended that whatever had
31 S v Legoa [2002] ZASCA 122; 2003 (1) SACR 13 (SCA).
32 Legoa para 21.
33 S v Kolea [2012] ZASCA 199; 2013 (1) SACR 409 (SCA) para 8.
34 S v Mashinini and Another [2012] ZASCA 1; 2012 (1) SACR 604 (SCA) para 51.
35 Kolea fn 33 above para 37.
16
occurred at the pre-trial remand proceedings was irrelevant since it was the trial
magistrate who was obliged to explain and act in accordance with the section.
The argument is without substance. The purpose of the pre-trial conference is to
ensure that the enrolled case is ready to proceed to trial. Such pre -trial
proceedings are not to be ignored.
[40] The notes made by the magistrate presiding at the pre-trial remand hearing,
state that the provisions of the section were explained to the accused. They were
understood. The legal representative said that the two accused did not require
assessors. This was plainly a request that the trial proceeds without assessors. The
accused confirmed this to be so. Thus, when the trial magistrate asked the legal
representative whether that was still the case, he sought to confirm the request.
[41] On the facts, s 93ter(1) was complied with. The high court ignored the facts
as disclosed on the record . In the circumstances, the high court erred both in
respect of the law relating to the section a nd in its application to the facts. It
follows that the appeal must succeed.
[42] The respondent was granted leave to appeal aga inst his conviction . The
high court did not deal with the merits of the appeal against conviction . The
consequence of this Court’s finding on appeal , must be that the respondent ’s
conviction and sentence are reinstated. Once that is so he is entitled to prosecute
his appeal in the high court.
[43] In the result, the following order will issue.
1 The appeal is upheld.
2 The high court's order is set aside.
17
3 The respondent’s conviction and sentence imposed by the Regional Court
Durban, are reinstated.
4 The respondent’s appeal against his conviction is remitted to the high court.
_________________
G G GOOSEN
JUDGE OF APPEAL
Schippers JA
[44] I have had the benefit of reading the first judgment by my colleague
Goosen JA. I agree that the appeal should be upheld, but I come to that conclusion
by a shorter route. In what follows, I utilise the same abbreviations used in the
first judgment.
[45] The issue raised in this appeal is one of statutory interpretation: whether
there has been compliance with s 93ter(1) of the MCA. It provides:
‘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,
18
the judicial officer shall at the 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.’
[46] The issue arose in the following circumstances. The respondent and his co-
accused were charged with murder in the Regional Court, Durban, KwaZulu -
Natal. They were legally represented. The record shows that that at a pre -trial
conference they were advised of the use of lay assessors, which they understood;
that their attorney confirmed that no assessors would be required; and that the
same was confirmed by the accused.
[47] A different magistrate presided over the trial. The accused were
represented by the same attorney. Before the trial commenced, the magistrate
asked the attorney to confirm that no assessors were required, which he did. The
trial proceeded without assessors. The respondent was convicted of murder and
sentenced to ten years’ imprisonment. His co-accused was acquitted.
[48] The respondent was granted leave to appeal to the KwaZulu-Natal Division
of the High Court, Pietermaritzburg (the high court). Prior to the hearing of the
appeal, the high court (Mathenjwa AJ and Ploos van Amstel J) issued a directive
that the parties file supplementary heads of argument on the question whether
there had been compliance with the proviso to s 93 ter(1) of the MCA (the
proviso).
[49] The high court did not deal with the merits of the appeal. It held that there
was no compliance with the proviso and set aside the respondent’s conviction and
sentence. The court referred to Langalitshoni,36 in which the magistrate enquired
of the accused’s legal representative whether he was going to use the services of
36 S v Langalitshoni [2018] ZAECMHC 75; 2020 (2) SACR 65 (ECM).
19
assessors. The representative replied that assessors were not required. The court
in Langalitshoni held that ideally, the magistrate should ask the accused directly
whether he or she has been made aware of the proviso; the legal representative
‘may then be asked by the magistrate to confirm the correctness of the answer
given by the accused person’; and it is then necessary for the magistrate to
specifically ask whether the accused wishes that trial proceed without assessors.37
It set aside the accused’s conviction and sentence for want of compliance with
the proviso.
[50] The high court also referred to the contrary approach in Ngomane.38 There,
the court (Bam J and Munzhelele AJ) declined to follow Langalitshoni and held
that the legal representative of the appellants was alert to the issue of assessors;
that it had been addressed by the magistrate on two separate occasions; and that
the appointment of assessors had been waived on behalf of the appellants. It
concluded that when the accused is legally represented, there is no need for the
magistrate to explain to the accused in minute detail what the MCA provides, and
what their rights are in relation to assessors.
[51] In this case, the high court reasoned that the trial court was not properly
constituted at the pre-trial conference; and that before commencement of the trial,
the respondent had not been informed that ‘as a matter of law he had a right to be
tried in the presence of assessors and with full knowledge thereof he elected not
to be tried in the presence of assessors’. The court said that the appeal ‘is on all
fours with the facts in Nxumalo’,39 and that it was bound by that decision . In
Nxumalo the record reflected that the accused’s legal representative had informed
37 Ibid para 9.
38 S v Ngomane and Another [2021] ZAGPPHC 172; 2021 (1) SACR 654 (GP) (Ngomane).
39 S v Nxumalo [2022] ZAKZDHC 23.
20
the court that ‘the defence does not require assessors’, which the representative
confirmed at a pre-trial conference and prior to the commencement of the trial.
[52] The high court relied on the following paragraphs in Nxumalo:
‘. . . Mr Nxumalo himself [the accused], was not involved in these discussions, save for being
present when the learned magistrate spoke to Mr Zulu [the legal representative].
The proviso was never explained to Mr Nxumalo, and he never made a request not to sit with
assessors. Whether his legal representative explained the proviso to him, is also not reflected
on the record. Had that been the case, the learned magistrate could have engaged Mr Nxumalo
so that he could have confirmed his understanding of the section, and his request not to have
assessors’.40
[53] It is trite that statutory interpretation is a unitary exercise which requires a
court to determine the meaning of a provision, having regard to the language used,
the context in which it is used and the purpose of the provision.41 As was held in
Endumeni,42 ‘[t]he inevitable point of departure is the language of the provision
itself’.43 These are the words which the lawgiver has chosen to enact to expr ess
the purpose of the legislation and are thus the primary source by which meaning
is ascertained.
[54] The proviso, on its plain language, states that a regional court magistrate
must be assisted by two assessors where an accused is charged with murder,
unless the accused requests that the trial proceed without assessors. These
requirements are peremptory. 44 Prior to the commencement of the trial, the
40 Ibid paras 9 and 10.
41 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA
99; 2022 (1) SA 100 (SCA) para 25.
42 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
(Endumeni).
43 Ibid para 18.
44 S v Gayiya [2016] ZASCA 65; 2016 (2) SACR 165 (SCA) paras 8 and 11.
21
regional magistrate must inform the accused of the proviso – an uncomplicated
obligation as appears from Gayiya.45
[55] The proviso says nothing about the ‘waiver’ of a right that the judicial
officer be assisted by two assessors. Instead, it refers to a ‘request’ by an accused
that the trial proceed with or without assessors. A ‘request’ is defined in the
Oxford English Dictionary46 as ‘[t]he action or an instance of asking . . . for
something’. Similarly, it is defined as ‘the act of politely or officially asking for
something’,47 or asking for something formally.48
[56] Thus, on its plain wording, the proviso prescrib es the constitution of a
regional court in which an accused is charged with murder, unless the accused
formally asks that the trial proceed without assessors. Put differently, the request
is a statement of the accused’s desire that no assessors are required. And it makes
no difference whether that request is conveyed to the magistrate by the accused
himself, or by his legal representative. This construction is consistent with the
purpose of the proviso: to promote lay participation in the adjudication of
criminal cases in order to achieve a measure of community involvement in the
criminal justice system,49 unless the accused requests otherwise.
[57] The proviso is silent on the manner in which an accused must be informed
of the court’s composition; or whether a s tatement or confirmation by an
accused’s legal representative that the trial may proceed without assessors,
constitutes compliance with the proviso. Sensibly interpreted however, 50 as long
as it appears from the record of the proceedings that an accused has been informed
45 Ibid para 8.
46 L Brown The New Shorter Oxford English Dictionary on Historical Principles 3 ed (1993) Vol 2 p 2556.
47 https://dictionary.cambridge.org/dictionary/english/request.
48 https://www.collinsdictionary.com/dictionary/english/request.
49 A Kruger Hiemstra’s Criminal Procedure 21-9 Issue 12 (May 2019).
50 Endumeni para 18.
22
of the proviso – by the magistrate or the accused’s legal representative – and that
there is a formal request that the trial proceed without assessors, there will be
compliance with the proviso. Whether there has been such compliance is a
question of fact to be determined in light of the circumstances of the particular
case.
[58] In the case of an accused who is legally represented, it is implicit in a
statement or request to the magistrate that no assessors are required, that the
accused has been informed of the proviso. This is because judicial officers ‘act
on the assumption tha t a duly admitted lawyer is competent’, as stated by this
Court in Halgryn.51 Legal competence necessarily entails knowledge of the law
and in this case, the proviso. It can therefore be accepted that a legal
representative would inform the accused of the proviso, explain its requirements,
and that when the representative informs the court that assessors are or are not
required, that the accused has understood what has been explained to him or her,
unless, in the exceptional case, something emerges which suggests otherwise.52
[59] It is self -evident that an attorney or advocate must demonstrate legal
expertise, honesty and faithfulness in the conduct of his or her client’s case. 53 It
is the duty of the legal representative ‘to ensure that the accused’s constitutional
rights are not violated and that the accused has a fair trial in accordance with all
procedural aspects and relevant legislation’. 54 For these reasons, the manner in
which the client’s case is to be conducted, vests in the legal representative. In the
words of Schreiner JA:
‘. . . Once the client has placed his case in the hands of counsel the latter has complete control
and it is he who must decide whether a particular witness, including the client is to be called or
51 S v Halgryn [2002] ZASCA 59; 2002 (2) SACR 211 (SCA); [2002] 4 All SA 157 (SCA) para 12.
52 S v Green [2022] ZAKZPHC 31 para 23.
53 R v Matonsi 1958 (2) SA 450 (A) at 458A per Van Blerk AJA.
54 Ngomane para 22; Ibid para 21.
23
not. So in Swinfen v Lord Chelmsford, 157 E.R. 1436 at p. 1449, POLLOCK, C.B., states the
Court’s view that,
“a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it
– such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as, in his
discretion, the things ought to be called, and other matters which properly belong to the suit and the
management and conduct of the trial”.’55
[60] Counsel’s authority over the suit however, does not detract from the
mandatory requirements of the proviso. But the proviso does not preclude a
situation, for example, where the legal representative advises the accused that in
his or her view, and in the interests of the accused, the trial should proceed
without assessors. A court sh ould not look behind a decision in a trial made by
counsel in good faith and in the best interests of the client, save only to prevent a
miscarriage of justice.56 If the accused accepts that advice, the legal representative
would advise the court that asses sors are not required, and there would be
compliance with the proviso. And in such a case, it cannot be suggested that ‘the
accused never made a request [that the court] not sit with assessors’. Neither is it
necessary for the record to reflect that the ‘l egal representative explained the
proviso to him’57 – that is a given.
[61] The wording of the proviso is clear and unambiguous concerning the
composition of the court, and the accused’s entitlement to formally ask that the
trial proceed with or without assessors. However, the interpretation of the proviso
in Langalitshoni and Nxumalo produces a manifest absurdity. It is a settled
principle that statutes should be construed to avoid absurdities or anomalous
results.58 Had the legal representative in both those cases informed the court that
55 Matonsi fn 19 at 456C-D.
56 GDB v Her Majesty The Queen 2000 SCC 2002; [2000] 1 SCR 520 para 34.
57 Nxumalo paras 9 and 10.
58 Venter v R 1907 TS 910 at 915, affirmed in Smit v Minister of Justice and Correctional Services and Others
[2020] ZACC 29; 2021 (3) BCLR 219 ( CC) para 121, where Madlanga J, citing Innes CJ, said: ‘[W]hen to give
the plain words of the statute their ordinary meaning would lead to absurdity so glaring that it could never have
24
assessors were required, it would have been accepted that the proviso had been
explained to the accused and that there was compliance with the requirements of
the proviso. And in that scenario, it cannot be suggested, as the co urt in
Langalitshoni found, that the question, ‘Are you going to use the services of
assessors’, was ‘misleading’, because it did not convey to the accused the proper
constitution of the court.59 As stated, the legal representative would be aware of
the proviso, would have advised the accused of its requirements, and neither the
representative nor the accused could conceivably be ‘misled’. Why should the
position be any different in the case where the legal representative informs the
court that assessors are not required? In both scenarios the proviso requires no
more than a formal request by the defence lawyer that the trial proceed with or
without assessors.
[62] The decision in Hlatshwayo illustrates the point.60 It does not appear from
the judgment whether t he accused were legally represented; it is assumed that
they were. On 27 March 2018, during the pre-trial stage, the magistrate completed
a pro -forma document forming part of the record and next to paragraph 1.14
thereof, it was indicated that both accused required assessors. That is the clearest
indication that they understood the proviso; and there was no question about
compliance with it. On 22 May 2018 the accused appeared before a different
magistrate (who ultimately presided over the trial) and the case was remanded for
trial. The following note was made on the record: ‘Both accused now indicate
that they do not require assessors in this case’.61 At the commencement of the trial
the magistrate did not deal with the proviso at all. The accused were convicted of
been contemplated by the Legislature, or where it would lead to a result contrary to the intention of the Legislature,
as shown by the context or by such other considerations as the Court is justified in taking into account, the Court
may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect
to the true intention of the Legislature.’
59 Langalitshoni para 11.
60 S v Hlatshwayo and Another [2022] ZAKPHC 8 (28 March 2022).
61 Ibid para 4.
25
murder and sentenced to 15 years’ imprisonment. On appeal, the convictions and
sentences were set aside because there was no compliance with the proviso.62
[63] It appears from Hlatshwayo that the request by the legal representative, on
behalf of the ac cused, that the trial proceed with assessors was accepted by the
trial court. So too, a similar request was subsequently made that assessors were
no longer required. That explains why it was unnecessary for the magistrate to
again deal with the proviso pri or to the commencement of the trial. The appeal
court however followed Langalitshoni and Nxumalo in setting aside the
convictions and sentences.
[64] I return to the facts of this case. The record shows that at the pre -trial
conference, the respondent and his co-accused were legally represented. They
were advised of the use of lay assessors, obviously sourced in the proviso, which
requires the magistrate to be assisted by two assessors. The magistrate could not,
and would not, have recorded that they understood that advice, unless it was
explained to them. So, contrary to the high court’s finding, the accused were
directly involved in the explanation concerning the proviso. The magistrate went
further. He asked the respondent’s attorney to confirm that no assess ors were
required – essentially a confirmation of the accused’s request – which the attorney
provided. Thereafter, the record states, ‘both accd confirm the same’, meaning
that they, in turn, confirmed the request to their attorney that the trial proceed
without assessors.
[65] Subsequently, and prior to the commencement of the trial, the presiding
magistrate’s request to the respondent’s attorney to again confirm that no
assessors were required, was a belt -and-braces approach to the proviso. The
62 Ibid paras 14-16.
26
attorney prov ided the requisite confirmation. On these facts, nothing can be
clearer than that the magistrate (and it may be accepted, the attorney) explained
the proviso to the respondent; that he understood it; and that he requested that the
trial proceed without assessors.
[66] It follows that the high court erred in holding that the trial court was not
properly constituted. And its attempt to distinguish Ngomane on the basis that
Bam J ‘appears to have entirely overlooked that in Gayiya the accused was also
legally represented’, and that regardless of legal representation, the accused
should still be informed of the proviso, must fail. The accused in Gayiya was
unrepresented, and that is not what Gayiya holds.
[67] For the above reasons, the decisions in Langalitshoni, Nxumalo and
Hlatshwayo are incorrect and should not be followed. The decision in Zulu63
however, stands on a different footing. There, the trial court informed the accused
of the proviso, after he had already pleaded. The appeal court correctly held that
the magistrate was required to inform the accused of the proviso before the trial
commenced. That was sufficient to set aside the conviction and sentence.
However, the court’s endorsement of the approach in Langalitshoni, Nxumalo
and Hlatshwayo, was incorrect.
[68] The appeal must therefore be upheld. I agree with the order issued.
__________________
A SCHIPPERS
JUDGE OF APPEAL
63 Busani Richard Zulu v The State [2022] ZAKPHC 20 (13 May 2022).
27
Appearances
For the appellant: K L Singh and B Mbokazi
Instructed by: Director of Public Prosecutions, Durban
Director of Public Prosecutions, Bloemfontein
For the respondent: L Barnard
Instructed by: Jay Pundit & Co, KwaDukuza
Blair Attorneys, Bloemfontein.