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Mabe v S (A45/2022) [2022] ZAFSHC 175 (20 July 2022)

80 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Right to assessors — Non-compliance with section 93 ter(1) of the Magistrates’ Court Act — Appellant convicted of murder and sentenced to 15 years’ imprisonment — Appellant challenged the trial's constitutionality, asserting he was not given the opportunity to waive his right to assessors — Respondent contended compliance with the Act — Court found that the presiding officer failed to ensure the appellant was informed of his right to request assessors before pleading — This misdirection vitiated the proceedings — Appeal upheld, conviction and sentence set aside, and appellant released from custody.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal to the High Court of South Africa, Free State Division, Bloemfontein, against both conviction and sentence imposed in the Regional Court, Sasolburg. The appeal concerned whether the appellant’s murder trial was properly constituted in light of the statutory requirements governing the appointment of assessors in regional court murder trials.


The parties were Master Letsietsa Mabe as the appellant and the State as the respondent. The matter was heard by Naidoo J and Mhlambi J, with Mhlambi J delivering the judgment.


The procedural history was central to the appeal. The appellant was convicted of murder on 19 July 2019 and sentenced to 15 years’ imprisonment on 22 July 2019. An application for leave to appeal in the regional court was refused on 30 June 2020. The appellant then petitioned the High Court, and leave to appeal against both conviction and sentence was granted on 10 November 2021.


The general subject-matter of the dispute was non-compliance with section 93ter(1) of the Magistrates’ Courts Act 32 of 1944, specifically the requirement that a regional court trying a murder charge must be assisted by two assessors unless the accused requests that the trial proceed without assessors. The appellant contended that the failure to comply with this requirement rendered the proceedings invalid, requiring that the conviction and sentence be set aside.


2. Material Facts


It was common cause that the appellant was tried in the Regional Court on a charge of murder, convicted, and sentenced to a term of imprisonment. The appeal did not turn on the factual merits of the murder conviction, but on whether the trial was conducted in compliance with the statutory framework governing assessors.


The appellant’s complaint was based on what the typed and handwritten record did and did not reflect. The appellant contended that the record did not show that the presiding magistrate explained the provisions of section 93ter(1) to the appellant, nor that the magistrate asked the appellant (or his legal representative) to elect whether the trial should proceed with or without assessors. On this version, the appellant maintained that there was no recorded waiver of the right to assessors.


The State disputed this, relying on an extract from the record (page 387) reflecting that, during later proceedings, the prosecutor asserted that the court had explained the issue and that the defence had indicated the matter could proceed without assessors, although the prosecutor accepted that this might not have been captured on the record. The State’s position was that the absence of a recorded explanation did not necessarily mean the explanation and election did not occur; it argued that the issue had been “canvassed” with the accused and/or his legal representative.


The High Court treated as decisive the fact that the record did not show (i) that the appellant requested that the trial proceed without assessors, or (ii) that assessors were summoned to sit with the magistrate. The Court further noted that, on the record, the presiding officer did not investigate the prosecutor’s contentions by checking the record to verify compliance.


3. Legal Issues


The central legal question was whether there had been compliance with section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 in a regional court murder trial, particularly whether the appellant had been afforded an opportunity to request that the trial proceed without assessors (thereby waiving the default position that two assessors must assist the magistrate).


A closely connected issue was the legal consequence of non-compliance: whether the failure to comply with the proviso to section 93ter(1) amounted to a fatal misdirection that vitiated the proceedings, requiring that both conviction and sentence be set aside.


The dispute was primarily one of application of law to recorded procedural facts. The Court was required to determine the legal sufficiency of the proceedings as reflected in the record, rather than to resolve contested evidence about the commission of the offence.


4. Court’s Reasoning


The Court approached the matter as one concerning the proper constitution of the trial court. It treated section 93ter(1), in the context of a regional court murder trial, as imposing a peremptory requirement: the judicial officer shall be assisted by two assessors unless the accused requests that the trial proceed without assessors. The Court endorsed the principle that the starting point is that the magistrate must inform the accused, before the commencement of the trial, of this legal requirement and must allow the accused to make an informed election.


In applying these principles, the Court relied on authority emphasising that the magistrate must afford the accused an opportunity to decide whether to proceed with or without assessors before pleading. The Court considered the failure to do so to be a misdirection that affects the validity of the proceedings themselves. In this regard, the Court referred to precedent where non-compliance with the proviso to section 93ter(1), in circumstances where no assessors were appointed and no waiver was made, was described as a fatal misdirection.


On the facts before it, the Court concluded that the regional court failed to afford the appellant the required opportunity to elect whether the trial should proceed with or without assessors before he was asked to plead. The Court rejected the suggestion that the matter being “canvassed” with the accused and/or his legal representative could substitute for compliance with the statutory duty, holding that such canvassing did not absolve the presiding officer of the responsibility to comply with the section and its purpose.


The Court also treated the absence of a recorded waiver as significant. It found that the record did not reflect that the appellant requested that the trial proceed without assessors and did not show that assessors were summoned. The Court further noted that, despite the prosecutor’s assertions, the presiding officer did not investigate those contentions by verifying compliance from the record. The Court therefore treated the non-compliance as established on the record and held that it vitiated the proceedings.


5. Outcome and Relief


The appeal was upheld.


The High Court set aside the conviction and sentence.


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


The judgment, as provided, did not reflect a separate or additional order as to costs.


Cases Cited


Gayiya v S 2016 (2) SACR 165 (SCA).


Edward Mntambo vs. The State (Case no 478/2020) [2021] ZASCA (11 March 2021).


Legislation Cited


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


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that, in a regional court murder trial, section 93ter(1) requires that the magistrate be assisted by two assessors unless the accused requests that the trial proceed without assessors, and that the accused must be afforded an opportunity to make that election before pleading.


On the record, there was no indication that the appellant requested that the trial proceed without assessors, nor that assessors were appointed. The Court held that the failure to comply with section 93ter(1) constituted a fatal misdirection that vitiated the proceedings, necessitating that both conviction and sentence be set aside and that the appellant be released immediately.


LEGAL PRINCIPLES


Section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 is peremptory in relation to a regional court trial on a charge of murder: the presiding judicial officer must be assisted by two assessors unless the accused requests that the matter proceed without assessors.


The proper application of section 93ter(1) requires that the presiding officer, before evidence is led and before the accused pleads, informs the accused of the default requirement of assessors and affords the accused an opportunity to elect whether to proceed with or without assessors.


Where no assessors are appointed in a murder trial and the record does not show a valid request by the accused to proceed without assessors, the non-compliance constitutes a fatal misdirection affecting the proper constitution of the court, which vitiates the proceedings and requires that the conviction and sentence be set aside.

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[2022] ZAFSHC 175
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Mabe v S (A45/2022) [2022] ZAFSHC 175 (20 July 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: A45/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
MASTER
LETSIETSA MABE

APPELLANT
and
THE
STATE

RESPONDENT
HEARD
ON:
18
JULY
CORAM
:                             NAIDOO,

J et MHLAMBI, J
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
20
JULY
2022
[1]
The appellant was convicted of murder in the Regional Court at
Sasolburg on 19 July
2019 and sentenced to 15 years’
imprisonment on 22 July 2019. Leave to appeal the conviction and
sentence was refused on
30 June 2020. He petitioned the High Court
and leave to appeal against both the conviction and sentence was
granted on 10 November
2021.
[2]
The appellant has, in the heads of argument and in this court, raised
a challenge
that there was non-compliance with the provisions of
section 93
ter
(1) of the Magistrates’ Court Act No 32 of
1944, (the Act), in that the magistrate failed to ask the appellant
or his lawyer
whether the appellant waived his right that assessors
be appointed to sit with the magistrate during the trial. It was
contended
that neither the typed nor the handwritten record reflected
whether the court
a quo
explained the relevant provisions to
the appellant and required him to elect whether the trial should
proceed with or without the
assessors. This, it was argued, was
tantamount to a misdirection by the magistrate which vitiated the
proceedings. Consequently,
both the conviction and sentence should
automatically be set aside.
[3]
The respondent opposed the application and contended that the record
reflected that
the court a quo complied with the provisions of
section 93
ter
(1) of the Act.
[1]
The
respondent, relying on the written record,
[2]
contended that the prosecutor, prior to the commencement of the
trial, mentioned during the application for leave to appeal that
the
issue of the appointment of the assessors was raised. It was crucial
to note, therefore, that this issue was raised neither
at the
commencement of the trial nor during the application for leave to
appeal.
[3]
It was contended that
the main reason why the issue was not raised by the appellant’s
legal representatives, was “
that
the matter was canvassed to the defence (accused and his legal
representative).”
[4]
[4]
The respondent submitted that, as there was no entry of the
explanation of the relevant
provision and no dispute raised by the
appellant’s legal representative when the issue was raised by
the prosecutor, it was
evident that the court a quo dealt with this
issue at some stage before the commencement of the trial.
[5]
[5]
For the sake of completeness, it is appropriate to quote page 387 of
the record which
reads as follows:
“
…
in
fact the court explained first and then asked whether do, asked
whether do we need the assistance of assessors, Your worship?
Court:
Mm
Prosecutor
:
And the advocate Sonchi said no, we can proceed, he does not, the
accused was warned before we started, even if it is not on record,

Your Worship. The accused was warned by court, and even it was asked
whether do we need assessors proceed with this matter. It
was said
that, advocate Sonchi said, yes, it was explained and court went
further to explain again to the accused before court,
Your Worship.
Court
:
Mm
Prosecutor
:
And then that is, thereafter we started with the case. Your Worship.
So, I do not know whether that part was captured on record.
Court
:
Or not?
Prosecutor
:
Or does not form part of record, Your Worship.
Court:
No, I have not
seen the record, … [indistinct] [intervenes]
Prosecutor:
Because the, the
thing that makes me to remember, so vividly with this case, this is,
this was my first case with advocate Sonchi,
in regional court, Your
Worship, and thereafter we spoke about it a lot.”
[6]
Section 93
ter
(1) of the Act provides as follows
:
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 community­based 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.”
[7]
In
Gayiya v S
it was stated:
“
[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.”
[6]
[8]
In
Mntambo v S,
[7]
Weiner
AJA stated that :
“
[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 93ter (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.”
[9]
It is clear in the present matter that the court a
quo
failed to afford the appellant the opportunity to decide whether to
request that the trial proceed with or without assessors before
he
was asked to plead. That the matter was canvassed with the accused
and/or his legal representative does not exonerate the presiding

officer from complying with the section and its underlying purpose.
Despite the prosecutor’s contention that the court a
quo
complied with the provisions of section 93
ter
of the Act, the presiding officer failed to investigate the
prosecutor’s contentions and to ascertain from the court record

whether she had done so or not.
[8]
The record does not show that the appellant requested that the trial
proceed without assessors or that the assessors were summoned
to be
of assistance at the trial of the case in compliance with the
section. Thus there is no record that the appellant waived
his right
to the appointment of the assessors. This misdirection is fatal and
vitiates the proceedings.
[10]
In the circumstances, the appeal must succeed. I therefore make the
following order:
Order:
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.
MHLAMBI
J
I
concur
.
NAIDOO
J
On
behalf of appellant:
Adv
R Van Wyk
Instructed
by:

Vermaak & Siecker Attorneys
C/O
Adriaan Janse Van Rensburg Attorneys
07
Collinsweg. 2
nd
Floor Linde Street
Bloemfontein
On
behalf of respondent:
Adv. T Sekhonyana
Instructed
by:

The
Office of the DPP
BLOEMFONTEIN
[1]
Para
2.2 of the respondent’s heads of argument.
[2]
Lines
3-8 on page 387.
[3]
Para
2.4 of the respondent’s heads of argument
[4]
Para
2.5 of the respondent’s heads of argument.
[5]
Para
2.6 of the respondent’s heads of argument.
[6]
2016(2) SACR 165 (SCA).
[7]
Edward
Mntambo vs. The State (Case no 478/2020) [2021] ZASCA (11 March
2021).
[8]
Line 22 of the court record shows that the presiding officer never
saw the record as she stated that: “No, I have not seen
the
record,…”.

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