About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 31
|
|
S v Nkumanda (CA&R45/2023) [2024] ZAECMKHC 31 (19 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA&R45/2023
In
the matter
between:
Delivered:
19 March 2024
THE
STATE
And
SINETHEMBA
NKUMANDA
SPECIAL
REVIEW JUDGMENT
Beshe
J
[1] This
is an application for the review and setting aside of applicant’s
conviction and sentence
by the Regional Court, sitting in Addo. The
applicant together with another were arraigned for
inter alia
,
murder.
[2] The
basis for the application is that the trial was vitiated by an
irregularity in that contrary to the
provisions of Section 93
ter
(1) of the Magistrates’ Court Act
[1]
,
the trial was conducted without assessors. And that the applicant had
not indicated that he elected that the trial proceeds in
the absence
of assessors. It appears to be common cause or at least not in
dispute that the applicant’s trial proceeded in
the absence of
assessors and that the applicant did not request that the trial
should be conducted without assessors.
[3] Section
93ter
(1) 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,
summons
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 any regional court 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.’
This
provision is peremptory in the case of a trial on a charge of murder
before the Regional Court. Failure to give effect to Section
93
ter
(1) taints the proceedings with an irregularity. In Gayiya v State
[2]
the appeal against convictions and sentences was upheld on the basis
that the Regional Court that tried the accused in that matter
was not
properly constituted. The Gayiya matter was recently quoted with
approval in Khaka & Another v State
[3]
delivered on the 8 March 2024 by the North-West High Court.
[4] In
the circumstances, the review falls to be upheld on the basis that
the proceedings were not in accordance
with justice for the reason
stated earlier i.e. failure by the trial court to act in terms of
Section 93
ter
(1).
[5] The
applicant and his co-accused were convicted and sentenced during
2013. The review application was
instituted in 2023. The applicant
has sought condonation for the delay in launching the application.
Based on the reason mainly
that, as soon as he became aware of the
irregularity, the application was instituted without delay. In my
view, the applicant has
succeeded in showing good cause for the
granting of the condonation sought in this regard.
[6] The
office of the Eastern Cape Director of Public Prosecutions is to be
commended for taking it upon
itself to bring the matter to the
attention of this court by seeking a review of the matter in terms of
Section 304 (4) of the
Criminal Procedure Act
[4]
(Special Review). This, upon establishing that the application for
review has not been filed with the Registrar’s Office.
[7] The
convictions and sentences in respect of applicant’s co-accused
were set aside as a result of
the irregularity averted to earlier in
this judgment, on 26 October 2021.
[8] In
the result, the following order will issue:
1.
The late institution of these proceedings is hereby condoned.
2.
It is ordered that the applicant’s convictions and sentences
handed down in the Regional Court sitting in Addo on 23 August
2013
in respect of case number RC31/2012 be and are hereby reviewed and
set aside.
N
G BESHE
JUDGE
OF THE HIGH COURT
RUGUNANAN
J
I
agree.
M
S RUGUNANAN
JUDGE
OF THE HIGH COURT
[1]
Act
32 of 1944.
[2]
2016
(2) SACR 165
SCA at 171.
[3]
(Cas
27/2023) [2024] ZANWHC.
[4]
Act
51 of 1977.