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Mntambo v S (478/2020) [2021] ZASCA 17 (11 March 2021)

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Criminal Law
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Brief Summary

Criminal Law — Murder — Appointment of assessors — Non-compliance with s 93 ter(1) of the Magistrates’ Courts Act 32 of 1944 — Appellant not afforded opportunity to elect whether trial should proceed with or without assessors — Court not properly constituted — Fatal misdirection vitiating proceedings. The appellant was convicted of murder and sentenced to fifteen years’ imprisonment by the Regional Court. He appealed against the conviction and sentence, arguing that the trial court failed to appoint assessors as required by law. The Supreme Court of Appeal upheld the appeal, finding that the failure to comply with the statutory requirement rendered the court improperly constituted, leading to the conviction and sentence being set aside, and the appellant being released from custody.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned an appeal to the Supreme Court of Appeal of South Africa (SCA) arising from a criminal conviction and sentence imposed by a Regional Court. The proceedings before the SCA included an application for condonation and reinstatement of an appeal that had not complied with the SCA’s procedural time periods.


The appellant was Edward Mntambo, who had been convicted of murder. The respondent was the State.


In the court of first instance, the Regional Court sitting at Verulam, KwaZulu-Natal convicted the appellant on 27 September 2012 and sentenced him to 15 years’ imprisonment. The Regional Court refused leave to appeal on the same date, and the KwaZulu-Natal Division of the High Court, Pietermaritzburg refused leave to appeal on 14 May 2013. The appellant then petitioned the SCA on 25 October 2016, and the SCA granted special leave to appeal against both conviction and sentence on 19 December 2016. By the time the SCA determined the matter, the appellant had been incarcerated for over eight years.


The appeal was disposed of without oral hearing by agreement between the parties, in terms of section 19(a) of the Superior Courts Act 10 of 2013. The general subject-matter of the dispute before the SCA was criminal procedure, in particular whether the Regional Court was properly constituted given non-compliance with the statutory regime governing the appointment of assessors in murder trials in the regional court.


Material Facts


The following facts were material to the SCA’s determination of condonation and, substantively, to whether the trial proceedings were rendered invalid.


Chronologically, the appellant was tried in the Regional Court on a charge of murder. The trial proceeded before a regional magistrate sitting alone, without assessors. The record reflected that before the appellant was asked to plead, he was not afforded an opportunity to choose whether the matter should proceed with assessors or without assessors.


It was common cause on appeal that the statutory requirement in the proviso to section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 had not been complied with, in that no assessors were appointed, and the appellant did not waive the statutory entitlement that the presiding officer be assisted by assessors in a murder trial in the regional court.


In relation to the procedural posture in the SCA, the appellant failed to comply with the SCA rules governing the timeous filing of a notice of appeal, the record, and heads of argument. The delay was inordinate, being over five years. The appellant’s explanation (accepted for purposes of good cause) was that the delay resulted from inadequate service by his former attorney and his inability to raise funds to pursue the appeal after Legal Aid refused assistance, until his current attorney took steps to ensure that the appeal could be reinstated.


Although the judgment also referred to features of the identification evidence led at trial (in the context of prospects of success relevant to condonation), the decisive factual basis for the ultimate outcome was the undisputed non-compliance with the assessors requirement and the absence of a valid request by the appellant that the trial proceed without assessors.


Legal Issues


The SCA was required to determine two main questions.


The first was whether the appellant had shown good cause for condonation for non-compliance with the SCA’s procedural rules and for the reinstatement of the appeal. This entailed a value-laden assessment involving the application of established condonation factors to the particular circumstances of delay and explanation, with prospects of success being an important consideration.


The second, and dispositive, issue on the merits was whether there was non-compliance with the proviso to section 93ter(1) of the Magistrates’ Courts Act 32 of 1944, and if so, whether that non-compliance meant that the trial court was not properly constituted, thereby amounting to a fatal misdirection that vitiated the proceedings and required that the conviction and sentence be set aside. This was primarily a question of law (statutory interpretation and procedural validity), applied to largely undisputed facts reflected in the record.


Court’s Reasoning


On condonation, the SCA applied the approach stated in Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA). It treated relevant considerations as including the extent of non-compliance, the explanation for it, the importance of the case, the respondent’s interest in finality, convenience to the court, avoidance of delay, and the applicant’s prospects of success.


Although the delay exceeded five years and was described as inordinate, the SCA accepted the explanation as reasonable for purposes of determining whether good cause had been established, particularly given the role of the appellant’s former attorney, the funding difficulty following refusal of legal aid, and the confirmatory affidavit from the current attorney. The State did not oppose condonation. The SCA considered that the appellant had shown sufficient grounds for condonation and reinstatement, and it granted condonation accordingly.


On the merits, the SCA considered the proper interpretation and effect of the proviso to section 93ter(1) of the Magistrates’ Courts Act, which requires that where an accused is tried in a regional court on a charge of murder, the presiding judicial officer shall be assisted by two assessors, unless the accused requests that the trial proceed without assessors. The SCA relied on S v Gayiya [2016] ZASCA 65; 2016 (2) SACR 165 (SCA), which resolved conflicting authority by holding that the provision is peremptory and that the “starting point” is that the magistrate must inform the accused before the commencement of the trial of the requirement of assessors, unless the accused requests otherwise. Only once such a request is made does a discretion arise for the magistrate to proceed without assessors (or to summon one or two assessors).


The SCA further referred to Shange v S [2017] ZASCA 51, where the court endorsed the position that if the regional magistrate does not sit with assessors and the accused has not requested that the trial proceed without them, the court is not properly constituted, and the convictions and sentences must be set aside.


Applying these principles to the record, the SCA found it clear that the appellant was not given an opportunity to decide whether to request a trial without assessors before he was asked to plead, and that the statutory requirement had not been met. Because the failure concerned the proper constitution of the court, the SCA treated the defect as a fatal misdirection that vitiated the proceedings. The State properly conceded that the conviction and sentence should be set aside and that the appellant should be released.


Outcome and Relief


The SCA upheld the appeal and set aside the appellant’s conviction and sentence.


The SCA ordered that the appellant be released from custody with immediate effect.


The judgment did not record any costs order.


Cases Cited


Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA).


S v Gayiya [2016] ZASCA 65; 2016 (2) SACR 165 (SCA).


Chala and Others v Director of Public Prosecutions, Kwazulu-Natal and Another 2015 (2) SACR 283 (KZP).


Shange v S [2017] ZASCA 51.


Legislation Cited


Superior Courts Act 10 of 2013, section 19(a).


Magistrates’ Courts Act 32 of 1944, section 93ter(1).


Criminal Procedure Act 51 of 1977, section 174.


Rules of Court Cited


Rules of the Supreme Court of Appeal, rule 7(1).


Rules of the Supreme Court of Appeal, rule 8(1).


Rules of the Supreme Court of Appeal, rule 10(1).


Held


Condonation for the late filing of the notice of appeal, the record, and heads of argument was granted, and the appeal was reinstated, having regard to the explanation advanced and the importance of prospects of success as articulated in the applicable condonation jurisprudence.


The proviso to section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 was treated as peremptory in murder trials in the regional court. Because the appellant was not afforded the opportunity to request that the trial proceed without assessors, and because assessors were not appointed, the Regional Court was not properly constituted, constituting a fatal misdirection that vitiated the proceedings.


The appeal was upheld, the conviction and sentence were set aside, and the appellant was ordered to be released immediately.


LEGAL PRINCIPLES


The statutory framework in section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 (as interpreted in the cited SCA authority) requires that an accused standing trial in a regional court on a charge of murder must be tried by a court constituted by a regional magistrate assisted by two assessors, unless the accused requests, before pleading, that the matter proceed without assessors. The magistrate’s discretion to proceed without assessors arises only after such a request has been made.


A failure to comply with the proviso to section 93ter(1), where the accused has not requested a trial without assessors, renders the court not properly constituted. This constitutes a fatal procedural irregularity (a misdirection going to the validity of the proceedings) that vitiates the trial and requires that the conviction and sentence be set aside.


In applications for condonation in the SCA, relevant factors include the degree of non-compliance, the explanation for it, the importance of the case, finality, convenience, avoidance of delay, and generally the applicant’s prospects of success, which are important though not necessarily decisive, as articulated in the cited authority.

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Mntambo v S (478/2020) [2021] ZASCA 17 (11 March 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 478/2020
In
the matter between:
EDWARD
MNTAMBO

APPELLANT
and
THE
STATE

RESPONDENT
Neutral
citation:
Edward Mntambo v The State
(Case no
478/2020)
[2021] ZASCA 17
(11 March 2021)
Coram:
MOCUMIE, DLODLO and MBATHA JJA and WEINER
and POYO-DLWATI AJJA
Heard
:
By agreement, matter disposed of
without oral hearing in terms of
s
19
(a)
of the
Superior Courts
Act 10 of 2013
.
Delivered:
The order was handed down on 22 February 2021. This judgment was
handed down electronically by circulation to the parties’
legal
representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for
hand-down is
deemed to have been at 10h00 on 11 March 2021.
Summary:
Criminal law – practice and procedure – charge of
murder –appointment of assessors in terms of   the

proviso to
s 93
ter
(1) of the
Magistrates’ Courts Act 32
of 1944
not complied with – appellant not afforded opportunity
to elect whether the magistrate should sit with or without assessors

– court not properly constituted – fatal misdirection
which vitiates the proceedings.
ORDER
On
appeal from:
Regional Court sitting at Verulam, KwaZulu-Natal
(Magistrate Mr Jacobs):
1
The appeal is upheld and the conviction and sentence are set aside.
2
The appellant is to be released from custody with immediate effect.
JUDGMENT
Weiner
AJA: (Mocumie, Dlodlo and Mbatha JJA and Poyo-Dlwati AJJA concurring)
[1]
The appellant was convicted of murder by the Regional
Court, sitting
at Verulam, KwaZulu-Natal on 27 September 2012. He was sentenced to
fifteen (15) years’ imprisonment. The
Regional Court and the
KwaZulu-Natal Division of the High Court, Pietermaritzburg refused
leave to appeal on 27 September 2012
and 14 May 2013 respectively. He
petitioned this Court on 25 October 2016 and was granted special
leave to appeal against both
the conviction and sentence on 19
December 2016. The appellant has been incarcerated for over eight
years.
Condonation
[2]
The appellant failed to comply with
rules 7(1)
,
8
(1) and
10
(1) of
this Court’s rules in that he filed his notice of appeal,
copies of the record and his heads of argument out of time.
He has
filed an application for condonation and for the appeal to be
re-instated.
[3]
In dealing with this issue, it is useful to refer
to the judgment in this Court in
Mulaudzi v
Old Mutual Life Assurance company (SA) Limited
,
[1]
where Ponnan JA stated that:
‘
Factors
which usually weigh with this court in considering an application for
condonation include the degree of non-compliance,
the explanation
therefor, the importance of the case, a respondent’s interest
in the finality of the judgment of the court
below, the convenience
of this court and the avoidance of unnecessary delay in the
administration of justice.
[2]
In
applications of this sort the prospects of success are in general an
important, although not decisive, consideration. As was
stated in
Rennie v Kamby Farms (Pty) Ltd
,
it is advisable, where application for condonation is made, that the
application should set forth briefly and succinctly
such
essential information as may enable the court to assess an
applicant's prospects of success.’
[3]
[4]
The reasons for the appellant’s non-compliance with the
abovementioned rules are set out in detail
by the appellant. For
purposes of this enquiry, it is unnecessary to give a detailed
account. Suffice it to state that the inordinate
delay of over five
years was apparently caused by his erstwhile attorney providing
inadequate service and his inability to raise
funds to pursue the
appeal after the Legal Aid Board refused his application for legal
assistance, which resulted in the notice
of appeal, copies of the
record and his heads of argument being filed out of time. He was
saved by his current attorney in ensuring
that the appeal be
reinstated. The attorney filed an affidavit confirming this
explanation. For that reason, although the delay
of over five years
is inordinate and would ordinarily not be countenanced, his
explanation is accepted as reasonable for the purposes
of assessing
whether good cause has been made out for condonation. On the
prospects of success, a necessary requirement for condonation
to be
granted, I will deal briefly with the facts leading to the
appellant’s conviction.
[5]
The appellant contended that he was convicted on the basis of the
evidence of the deceased’s mother
and her grandson. Both
alleged that on the fateful night two men entered their home while
they were sleeping and shot the deceased.
The deceased died later in
hospital. The deceased’s mother said that she identified the
appellant as the assailant that pulled
the trigger. She insisted that
she identified him through a light from the screen of a cell phone.
However, in her statement to
the police she stated that she could not
identify him. She saw him again the following day and told her
grandson that the appellant
was the perpetrator. The magistrate dealt
with the grandson’s evidence as that of a single witness.
[6]
The State’s evidence suffered from the typical shortcomings of
evidence of a single identifying
witness. In the absence of any
aliunde
evidence which could pin the appellant to the
commission of the murder, he ought to have been discharged upon an
application brought
under
s 174
of the
Criminal Procedure Act 51 of
1977
. The evidence of the State was simply not satisfactory. For
these reasons, I have serious doubts about the correctness of the
accused’s
conviction on the count of murder, but in the view I
take of the matter, it is not necessary to say more in that regard.
[7]
Having regard to the explanation the appellant has provided and the
applicable legal principles, the
appellant has established good
grounds for condonation and the re-instatement of the appeal. The
State does not oppose the application
for condonation for
non-compliance with the rules of this Court and the re-instatement of
the appeal. Condonation is accordingly
granted and the appeal is
re-instated.
Section
93
ter
(1) of the Magistrates’ Courts Act No 32 of 1944
(the Act)
[8]
The appellant has raised the challenge that there was non-compliance
with the provisions of the proviso
to s 93
ter
(1) of the Act,
which provides that, when facing a murder charge, assessors must be
appointed by the magistrate unless the accused
waives such right. The
section reads:
‘
93
ter
Magistrate may be assisted by assessors
1)
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
.’ [Emphasis added]
[9]
Until the judgment in
S v Gayiya
[4]
there were conflicting
judgments in relation to the interpretation of s 93
ter
(1).
This Court in
Gayiya
referred to
Chala
and Others v Director Of Public Prosecutions, KwaZulu-Natal and
Another,
[5]
stating that the conflicting authorities
had been succinctly dealt with in that case.
In
Gayiya
,
it was held that the appointment of assessors was peremptory, unless
the accused requests, prior to him pleading to a charge of
murder,
that the trial should proceed without assessors. Mpati P stated:
‘
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.
.
. .
In
the present matter, the quorum prescribed by the proviso to ss (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
.
’
[6]
[10]
The
court held that the
failure to comply with the proviso resulted in the court not being
properly constituted and it set aside the
conviction and sentence. In
Shange v S,
[7]
Lewis JA referred to and endorsed
Gayiya.
She
stated:
‘
In
S v Gayiya
2016 (2) SACR 165
(SCA) this
court, referring to
Chala v DPP, KwaZulu-Natal
2015 (2) SACR
283
(KZP) and the authorities discussed there, considered that where
the regional magistrate had not sat with assessors, and the accused

had not requested that the trial not proceed with assessors, the
court was not properly constituted and that the convictions and

sentences had to be set aside.’
[11]
In the present matter,
it is clear from the
record of the proceedings that the appellant was not afforded an
opportunity by the magistrate to decide whether
to request that the
trial proceed with or without assessors before he was asked to plead.
I
t is common cause that there was
non-compliance with the proviso to s 93
ter
(1) of the Act
in that no assessors were appointed in terms of the proviso to the
section and the appellant did not waive his right
to such
appointment. This is a fatal misdirection which vitiates the
proceedings.
The State properly conceded the point
and accepted that the conviction and sentence should be set aside and
the appellant immediately
released from prison.
The
appeal must therefore succeed.
[12]   Accordingly:
1
The appeal is upheld and the conviction and sentence are set aside.
2
The appellant is to be released from custody with immediate effect.
__________________________
SHARISE WEINER
ACTING
JUDGE OF APPEAL
Represented
by:
For
appellant:
S Matthews
Instructed
by:
Johan Jooste & CO
Attorneys, Durban
Spangenberg
Zietsman Attorneys, Bloemfontein
For
respondent:
DA Paver
Instructed
by:
The Director of Public Prosecutions,
Pietermaritzburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and
Others, National Director of Public Prosecutions and Another
v
Mulaudzi
[2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA).
[2]
Ibid para 26.
[3]
Ibid para 34.
[4]
S
v Gayiya
[2016]
ZASCA 65; 2016 (2) SACR 165 (SCA).
[5]
Chala
and Others v Director of Public Prosecutions, Kwazulu-Natal and
Another
2015 (2) SACR 283 (KZP).
[6]
Gayiya
fn
4 paras 8 and 11.
[7]
Shange
v S
[2017]
ZASCA 51.

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