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[2022] ZAKZPHC 8
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Hlatshwayo and Another v S (AR 354/20) [2022] ZAKZPHC 8 (28 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION
PIETERMARITZBURG
Case
No: AR 354/20
In the matter between:
SIYABONGA HLATSHWAYO
FIRST APPELLANT
SIBIBUSISO
MDLOLO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The
appellants’ appeals are upheld and both their convictions and
sentences are set aside.
JUDGMENT
Bezuidenhout
AJ, with Ploos van Amstel J concurring:
[1]
On 13 August 2020 the appellants were convicted in the Ezakheni
Regional
Court of one count of murder. They were sentenced to fifteen
years’ imprisonment on 2 September 2020. On the same day, both
appellants applied for, and were granted leave to appeal against
conviction and sentence.
[2]
Upon a perusal of the record of the proceedings, we deemed it
appropriate
to request the counsel involved to submit supplementary
heads of argument to address the issue of whether the provisions of
section
93
ter
of the Magistrate’s Court Act 32 of 1944
were sufficiently explained to the appellants in the court
a quo
.
Non-compliance with section 93
ter
would result in the court
not being properly constituted.
[3]
Both counsel have filed supplementary heads of argument for which we
are
indebted. The matter was due to be heard on 4 March 2022 but the
parties agreed that the matter be dealt with in terms of
section
19
(a)
of the
Superior Courts Act 10 of 2013
and accordingly
the hearing of oral argument was dispensed with.
[4]
The record of the proceedings during the pre-trial stage, in other
words
before the appellants pleaded and the trial commenced, shows
the following:
(a)
On 27 March 2018 the appellants appeared before a Magistrate, Mrs
Louw, and a pre-trial
hearing was held. A pro-forma document was
completed and next to paragraph 1.14 of the document, it is indicated
that both accused
required assessors. The proceedings were not
mechanically recorded.
(b)
On 22 May 2018 the appellants appeared before the Magistrate, Mrs De
Lange, who ultimately
presided over the trial. The record reflects
that the matter was remanded for trial. Below the magistrate’s
signature a post-script
appears which reads as follows: ‘Both
accused now indicate they do not require assessors in this case’.
The
proceedings were not mechanically recorded and nothing further was
recorded by the magistrate on the charge sheet.
[5]
At the commencement of the trial on 5 July 2018, the issue of
assessors
was not dealt with at all.
[6]
Section 93
ter
of the Magistrate’s 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.’
[7]
In
Chala
v DPP
,
[1]
Vahed J undertook a detailed analysis of the relevant case law when
called upon to decide whether it was a fatal irregularity if
a
regional magistrate fails to invoke the provisions of section 93
ter
.
The following was said at paragraph 28:
‘
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 93
ter
is required to be invoked, that a proper explanation is given by the
magistrate to 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 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.’
The
conviction and sentence were reviewed and set aside.
[8]
In
S
v Gayiya
[2]
it was common cause that the accused was never afforded an
opportunity by the regional magistrate to decide whether or not to
request that the trial proceed without assessors. At paragraph 8
Mpati P held, with reference to section 93
ter
,
that it
‘
ordains
that the judicial officer presiding in a regional court before which
an accused is charged with murder….
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.’
(emphasis in original)
The
court also approved of the approach in
Chala supra
and the
conviction and sentence were set aside.
[9]
In
S
v Langalitshoni
[3]
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 said the following with
reference to section 93
ter
,
referring to what was held in
Gayiya
supra
:
‘
[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 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
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 judgment. 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 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 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.’ (footnotes
omitted)
The
conviction and sentence were set aside.
[10]
In an unreported judgment by
Lopes J in
SG Nxumalo v S
[4]
the record reflected that the legal representative of the accused
informed the court that the ‘defence’ did not require
assessors. At a subsequent pre-trial conference it was recorded that
the ‘Defence does not need assessors’. At
the
commencement of the trial the magistrate asked the accused’s
legal representative to confirm that the defence did not
require
assessors, which he did. Lopes J said the following at paragraphs 9 –
10:
‘
[9]
The crisp issue which arises in this matter is whether the
communications with regard to
the appointment of assessors between
the prosecutor and Mr Zulu (in the pre-trial hearing), or the
exchange in court between the
learned magistrate and Mr Zulu were
sufficient. Mr Nxumalo himself, was not involved in these
discussions, save for being present
when the learned magistrate spoke
to Mr Zulu.
[10]
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.’
The
sentence and convictions were set aside.
[11]
In returning to the present matter, it was submitted by counsel for
the appellant, Ms.
L Marais, in her supplementary heads of argument,
that it is clear from the record of the proceedings that the
magistrate did not
give an explanation to the appellants regarding
the provisions of section 93
ter
, or their rights in that
regard. It was also submitted that there is furthermore no indication
that the appellants’ legal
representatives explained the
provisions of section 93
ter
to them.
[12]
It was further submitted that section 93
ter
requires positive
conduct on the part of the accused, namely a request to the effect
that the trial may proceed without assessors.
It was finally
submitted that the endorsement by the magistrate to the effect that
both accused indicate that they do not require
assessors, does not
satisfy the requirements of section 93
ter
. Reference was also
made to both
Chala
and
Gayiya
supra
and it was
submitted that the convictions and sentences should be set aside.
[13]
Counsel for the respondent, Mr. M Miza submitted that it is clear
from the record that
the appellants waived the right to a trial
presided over by a regional magistrate and two assessors by
requesting that the trial
proceed without assessors and as such the
court was properly constituted. It was also submitted that the
present matter is distinguishable
from
Gayiya
because in that
matter no request was made by the accused. It was accordingly
submitted that the convictions and sentences should
stand.
[14]
In the present matter though,
it is not clear from the record that the accused did in fact request
that the matter proceed without
assessors. They simply indicated that
they did not require assessors. The wording of section 93
ter
suggest a positive action from the accused in the form of a request
which must be apparent from the record.
[5]
[15]
There is furthermore no indication on the record that the magistrate
informed the appellants
that it was a requirement of the law that she
must be assisted by two assessors, unless they request her to proceed
without assessors.
There is also no indication that the magistrate
gave any explanation to the accused regarding the choice they had and
the importance
of that choice.
[16]
In my view therefore the trial court was not properly constituted and
the convictions cannot
stand.
[17]
The following order is accordingly made:
‘
The
appellants’ appeals are upheld and both their convictions and
sentences are set aside.’
BEZUIDENHOUT
AJ
I
agree.
PLOOS
VAN AMSTEL J
Date of Judgment:
28 March 2022.
APPEARANCES:
For
the appellant:
Ms. L Marais
Instructed
by:
Legal Aid South Africa
PMB Justice Centre
187 Hoosen Haffejee Street
Pietermaritzburg
E-mail:
LaurenM@legal-aid.co.za
For
the Respondent:
Mr. M Miza
Instructed
by:
The Director of Public Prosecutions
Pietermaritzburg
[1]
Chala
and others v Director of Public Prosecutions, KwaZulu-Natal and
another
2015 (2) SACR 283
(KZP).
[2]
S v
Gayiya
2016 (2) SACR 165 (SCA).
[3]
S v
Langalitshoni
2020 (2) SACR 65 (ECM).
[4]
Nxumalo
v The State
(KwaZulu-Natal Local Division, Durban) unreported case no AR263/2019
(10 February 2022)
[5]
See
S v
Khambule
1999 (2) SACR 365
(O) at 367.