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[2023] ZAKZPHC 14
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Mabaso v S (AR77/2022) [2023] ZAKZPHC 14; 2023 (2) SACR 217 (KZP) (3 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR77/2022
In
the matter between:
MFANAFUTHI
MABASO
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Mlaba
J et Nkosi J concurring:
[1]
On 14 December 2012, the appellant, together with his co-accused, was
convicted on a charge of
murder (read with the provisions of
section
51(1)
and (2) of the
Criminal Law Amendment Act 105 of 1997
), read
with the provisions of
section 257
,
258
of the
Criminal Procedure Act
No 51 of 1977
. They were sentenced to 21 years’ imprisonment.
They applied for leave to appeal which was refused. The appellant
petitioned
this Honourable Court and the court granted leave to
appeal against his conviction.
[2]
The appellant raised a point
in limine
and submitted that the
court
a quo
failed to comply with the
section 93ter
(1). On 25
January 2010, when the appellant appeared before the court
a quo
for an adjournment, the defence indicated that… “the
accused are dispensing with assessors”.
[3]
The matter was adjourned on several occasions prior to the trial
proceeding on 14 October 2011.
[4]
The record reflects that the accused was present in court on the 25
th
January 2010. It does not reflect however that the presiding officer
explained to the accused the provisions of
section 93ter
nor that she
did confirm with the accused that the accused understood the proviso
and that he indeed had elected to dispense with
the use of assessors.
[5]
The record reflects that when the trial started on the14th of October
2011, before a different
presiding officer, no explanation of the
proviso was made by the presiding officer. In fact, nothing was
mentioned about the use
of assessors and the appellant’s rights
in terms of
section 93ter.
The appellant was legally represented
throughout the trial by the same legal representative who had
indicated to the court that
the use of assessors would be dispensed
with.
[6]
The issue to be determined in this appeal is whether the court was
properly constituted and whether
an indication to a different
presiding officer by the legal representative during an adjournment
was so sufficient that it amounted
to a waiver by the appellant of
the use of assessors.
[7]
Section93ter of the Magistrates’ Court Act provides that if an
accused is standing trial on a
charge of murder:
“
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.”
[8]
In
Chala
v DPP
[1]
where the conviction and sentence were set aside, Vahed J stated
that… “the record of the proceedings in cases where
section 93ter is required to be invoked, must reflect that a proper
explanation is given by the magistrate to accused persons of
the
choice they have in the appointment of assessors, together with the
brief exposition of the import of that choice and as to
what is
required of them. 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”.
[9]
In
S
v Langalitshoni
[2]
the magistrate in the court a quo enquired from the accused’s
legal representative as to whether he or she “are going
to use
the services of the assessors”. The response was “no”.
Brooks J stated as follows:
“
[8]
The statement of the legal principle quoted in the preceding
paragraph has the effect of creating an obligation on the part
of a
regional magistrate presiding over a trial involving 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
element is to inform the accused person that he or
she may elect to
proceed with the trial without assessors.
[9]
In my view, it is a relatively simple matter for a regional
magistrate to discharge both elements
of the obligation. What is
required is a repetition of the legal principle quoted elsewhere in
this judgement. Ideally, communication
of the legal principle should
be made in 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 of 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 a 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”. In this mater the
conviction
and sentence were set aside.
[10]
In this matter, the record reflects that the proviso was never
explained to the accused and that
the accused never made a request
for the presiding officer to dispense with the use of assessors. The
accused was present in court
on the 25
th
of January 2010
when his legal representative indicated that the use of assessors
would be dispensed with, the magistrate could
have ascertained from
the accused that he understood the proviso and that the indication by
the legal representative was in line
with his instructions. None of
that was done by the presiding officer who adjourned the matter.
[11]
The record reflects that the presiding officer who conducted the
trial did not even engage the
accused on the matter at all. There is
no valid reason for him not to have at least enquired from the legal
representative and
confirmed with the accused as to whether what had
been indicated by the legal representative on 25 January 2020 was
still the case
on 14 October 2011 when the trial proceeded.
[12]
The proviso is peremptory and judicial officers are required to
comply with the proviso. This
honourable court is experiencing an
increased number of appeals that have to succeed purely on this
technical ground and, this
is a serious concern as unfortunately such
an irregularity has an effect of vitiating the whole proceedings,
something that could
easily be avoided with the application of due
diligence in the performance of functions by the judicial officers.
[13]
In this matter the accused’s legal representative simply
indicated that they did not require
assessors. The wording of section
93ter however suggests a positive action from the accused in the form
of a request which must
be apparent from the record. It is clear from
the record that of the proceedings that the accused 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. The
appellant did not waive his right to such an appointment
and there was therefore no compliance with the proviso.
[14]
The respondent correctly conceded that this is a fatal misdirection
which vitiates the proceedings.
[15]
It is our view therefore that the trial court was not properly
constituted and the conviction
cannot stand.
Order
[16]
Accordingly, I propose the following order:
a)
The appeal against conviction is upheld.
b)
The conviction and sentence is set aside.
MLABA
J
I
agree, and it so ordered.
NKOSI
J
Appearances
Date
of Hearing:
03 February 2023
Date
of Judgment:
03 February 2023
Counsel
for the appellant:
P. Andrews
Instructed
by:
Legal Aid South Africa
Pietermaritzburg
Counsel
for the respondent:
G. Mkhize
Instructed
by:
The Director of Public Prosecution
Pietermaritzburg
[1]
2015
(2) SACR 283(KZP)
[2]
2020
(2) SACR65 (ECM)