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[2022] ZAKZPHC 20
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Zulu v S (AR 319/2021) [2022] ZAKZPHC 20 (13 May 2022)

IN
THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case
no: AR 319/2021
In
the matter between:
BUSANI
RICHARD
ZULU
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
lxopo Regional Court (sitting as court of first
instance)
(a)
The appeal is upheld.
{b)
The conviction and sentence are set aside.
(c)
The matter is remitted to the regional court to commence proceedings
de nova
before a different magistrate, at the
discretion of the Director of Public Prosecutions.
JUDGMENT
Khallil AJ (Chili J
concurring)
Introduction
[1]
The
appellant,
a
31-year-old
male,
Mr
Busani
Richard
Zulu,
who
was
legally
represented, stood accused before the Regional Court sitting at lxopo
of one count of murder, read with the provisions of
section 51(2) of
the Criminal Law Amendment Act 105 of 1997 (CLAA).
[1]
The matter
serves before us as an appeal against conviction and sentence with
the leave of the court
a
quo.
Before
turning to the issue on appeal it is apposite to comment briefly an
two aspects.
The applicability of the
minimum sentence.
[2]
It was common course at the trial that the offence charged, viz,
murder, attracted imposition of a mandatory sentence prescribed
by
law. The charge sheet reflects that the appellant was facing a charge
of murder, read with the provisions of
S51
(2) of the
Criminal Law
Amendment Act 105 of 1997
{hereinafter "CLAA''). 851 (2) of the
CLAA provides:
"(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence
a person who has been
convicted of an offence referred to in (a) Part ii of Schedule 2, in
the case of -
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;”
[3]
It is now settled that the interests of justice demand that an
accused person be advised, promptly, of the applicability of
a
minimum sentence in a given case,
That did
not happen in the present appeal
Instead,
the learned magistrate tersely stated: "... The Minimum Sentence
Act (sic) 105 of 1997 is also applicable here, in
terms of which
certain sentences are compulsory unless there are substantial
circumstances (sic) not to impose it”. Nothing
more
[2]
.
Although the appellant was legally represented, it was not confirmed,
at the least, if these provisions were explained to the
appellant by
his legal representative.
The
ultimate responsibility however remains that of the court.
[4]
I might just add that although competent verdicts were made reference
to in general terms, the specific competent verdicts on
a charge of
murder were not brought to the attention of the appellant nor was it
confirmed with his legal representative if these
were indeed
explained to the appellant.
[3]
Application
for condonation
and for leave to appeal
[5]
With leave of the court a
quo,
albeit
before another magistrate and not the trial magistrate, leave to
appeal against both the conviction and sentence was granted.
[4]
[6]
It bears mentioning that section 3098(1)(b)(i) of the Criminal
Procedure Act 51 of 1977 (CPA) makes it obligatory
that the
application for leave to appeal be 'made within 14 days after the
passing of sentence or order following on the conviction'.
The
appellant was sentenced on 13 June 2018 and the application for leave
to appeal bears the clerk of the criminal court stamp
of 2 July 2021,
ie the date when the application for leave to appeal was heard. The
appellant was 3 years out of time in bringing
the application.
[5]
[7]
Section 309B(1
)(b)(ii)
of the
CPA provides for an extension of the time period of 14 days which
'the court may on application and for good cause shown,
allow'.
However, no application for condonation was made on the papers and
the record reflects that the learned magistrate, despite
the
mandatory prescription in this section stated as follows:
[6]
'so
I am not going to require that he launch (sic) an application for
condonation at this stage, that would just be trying to use
the law
to prevent somebody to have justice done. For that reason, I am not
going to require.. .'.
[8]
The learned magistrate simply had no authority to dispense with the
application for condonation when it is prescribed by law.
Although
well intentioned, in acting as he did, he purported to exercise a
discretion he does not have and in effect changed the
peremptory
requirement which the law prescribes in this sub-section.
[9]
Section 309B(2)(a) of the CPA provides, as a starting point, that the
application for leave to appeal must be heard by the magistrate

'whose conviction, sentence or order
is
the subject
of the
prospective
appeal
(hereinafter
referred to
as the trial magistrate) or, if the trial magistrate is not
available, by any other magistrate of the court concerned…

Unfortunately, the transcribed record of proceedings does not reflect
that the trial magistrate was unavailable.
[7]
The
jurisdictional requirement for the second magistrate to have dealt
with the application for leave to appeal has accordingly
not been
satisfied. The non-availability of the trial magistrate cannot be
assumed and should have been placed on record, if indeed
he was
unavailable.
[10]
Section 309B(2)(b) of the CPA provides that where the application for
leave to appeal is to be heard by a magistrate other
than the trial
magistrate and where the accused was legally represented, the clerk
of the court must submit a copy of the judgment
of the trial
magistrate, including the reasons for the conviction, to the
magistrate hearing the leave to appeal application, unless
such
magistrate deems it necessary, in order to decide the application,
that the full record of the proceedings before the trial
magistrate,
be placed
before him or her.
[8]
What is
clear from the record is that the learned magistrate dealt with the
application for leave to appeal 'orally.' I understand
this to be the
procedure provided for in terms of section 309B(3)(b) of the CPA
where immediately after the passing of sentence,
the accused may
orally apply for leave to appeal. This is borne by the following
remarks of the magistrate in the record:
[9]
'the
fact that the application was only filed today hence I am dealing
with it in more of an oral
fashion
so that I can make a decision here and now rather than bring you back
another day and bring the accused back another day
when we have these
Covid protocols, so all I am trying to do is get work done.'
[11]
It is also not clear from the record whether the learned magistrate
was in possession of the judgment of the trial magistrate,
which he
was at the very least, obliged to consider in deciding the
application for leave to appeal. Reference to dealing with
the
application in an 'oral fashion' in the context of section 309B(3)(b)
by the learned magistrate was misplaced as what the legislature
has
clearly envisaged by the wording of this section is the situation
where. immediately after sentencing an accused, the application
for
leave to appeal is made orally to the trial magistrate.
[12]
There
were
no
reasons
given
by
the
learned
magistrate
for
granting
the
application for
leave to
appeal. In his ruling,
[10]
there is only a single sentence
alluding to
the merits wherein the learned magistrate concludes, without
furnishing any reasons, as follows:
'On
the merits of the matter, I am satisfied that perhaps another court
acting carefully, there is (sic) a reasonable possibility
that such
court may arrive at a different conclusion to that which the trial
court arrived at.'
[13]
The learned magistrate was obliged to furnish reasons to explain how
and why he arrived at the particular decision in the light
of the
grounds of appeal advanced by the appellant.
[11]
This is in line with the salutary principles of open justice,
transparency, responsiveness and
accountability.
In addition, the furnishing of reasons
demonstrates
that a judicial officer has applied his or her mind to the issues
which were placed before the court and therefore
the judgment or
ruling was not arbitrary.
[14]
Notwithstanding the above irregularities pertaining to how the
application for leave to appeal was dealt with, we think the

interests of justice would be better served if the appeal is
considered on the basis that it is properly before the appeal court.
I
now turn to deal with the issue on appeal.
Right
of appellant to have court constituted with assessors
[15] The charge of
murder preferred against the appellant required that section
93ter
of the
Magistrate's Court Act 32 of 1944 (MCA) be applied. Counsel for the
State raised this issue in paragraph 2 of his written
heads of
argument and submitted that the provisions of section
93ter
of the
MCA were not explained to the appellant, and consequently
no election
was made by him. In the result, the State itself contends
that the
trial court was not properly
constituted.
[12]
The appellant although not having raised this issue, was given an
opportunity to make submissions thereon during the hearing of
the
appeal and similar sentiments to that of the State, were expressed.
[16]
Section
93ter
of the MCA provides that if an accused is
standing trial on a charge of murder in the regional court: '...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..'
[17]
This section is clearly couched in peremptory terms and the starting
point therefore, is for the regional magistrate to inform
the accused
before commencement of the trial about the provisions of this
section.
[13]
[18]
Upon a perusal of the record of the proceedings, the following is
apparent:
(a)
When the
case was transferred from the district to the regional court on 28
March 2017, the 'supplementary information on the final
remand to
regional court' form which was signed by the district magistrate and
which caters for the choice of whether or not the
accused requires
assessors, is unfortunately
left
blank.
[14]
(b)
On 10 May
2017,
the
minutes
of the pre-trial conference conducted in the regional court also
makes provision for the choice of assessors but unfortunately
it is
marked
'NIA'
(not
applicable).
[15]
It is unclear
why the matter was certified as trial ready by the learned magistrate
on this day under signature of the prosecutor,
defence
counsel and magistrate himself, and the matter scheduled for trial
when the issue of assessors regarding the constitution
of the trial
court was not canvassed at all.
(c)
When the trial eventually began on 26 January 2018, the learned
magistrate dealt with the issue of assessors but only aft.er
the
appellant had formally pleaded and in the form of a single - line
enquiry directed to defence counsel which reads as follows:
'Court:
You a/so
confirm that no assessors are required?
Mr
Ismail:
Correct,
no
assessors.
‘
[16]
[19]
In
S
v
Langalitshoni
[17]
the
magistrate
in
the
court
a
quo
enquired
from
the
accused's legal representative (not dissimilar
to this
case) whether or not the accused 'are going to use the services of
the assessors.' Brooks J opined that this amounted to
no explanation
at all and gave a useful step-by-step guide with reference to the
practical application of section 93ter.
'[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 Jaw 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 rote 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.
(my
emphasis,
footnotes omitted)
The
convictions and sentences were set aside.
[20]
The main issue ln the present matter is whether the one-line
communication in court between the learned magistrate and defence

counsel on the question of assessors, which excluded the appellant,
was sufficient.
[18]
[21]
It is clear, from the record, that the provisions of section 93ter
were never explained to the appellant, and he never made
a request
not to sit with assessors. Moreover, the record does not reflect that
the constitution of the court was ever explained
by defence counsel
to the appellant
[22]
Nor did the appellant's legal representative in the court a
quo
request
that the matter proceeds without assessors. He simply responded to
the learned magistrate's one-line question by stating
'Correct, no
assessors,' without any involvement of the appellant.
[19]
[23]
It is most unfortunate that there was no explanation given to the
appellant by the magistrate on such a crucial issue that
affects him
directly. The record reflects that once each in the district court,
regional court pre-trial conference, and after
the appellant had
pleaded before the trial court, he was excluded in the process on
fundamental an issue as to the constitution
of the court dealing with
his fate. The fact that this happened on three separate and distinct
occasions in the matter, exacerbates
the irregularity.
[24]
In
S
v Naicker,
[20]
it
was held
that although non-compliance with the peremptory terms of section
93ter(1) amounts to an irregularity, it does not necessarily
follow
that
it
amounts to a failure of justice and an assessment is nevertheless
required to discover the impact of the irregularity on the
integrity
of the proceedings. Some 4 years later,
S
v
Du
Plessis
[21]
critically
analysed a number of cases dealing with section 93ter, including the
Naicker
decision,
and concluded that
Naicker
was
wrongly decided. It was held that the irregularity was so
fundamentally
fatal that
it constituted a failure of justice vitiating the entire proceedings.
[25]
About a
year later,
Naicker
was
referred to and considered in
Chala
and others v Director of Public Prosecutions,
Kwazulu-Natal
and another,
[22]
Vahed J
(with Ndamase AJ concurring), undertook extensive research on the
subject, and having also referred to a number of decisions
concluded
that non-compliance with the peremptory provisions of section
93ter
was a
fatal irregularity and the court set-aside the conviction and
sentences in that case.
[26]
The court
in
Cha/a
was
ordinarily bound by the earlier
Naicker
decision.
unless it concluded, as it did, that the decision in
Naicker
was
clearly wrong, and a new precedent was thus created. Three years
later in 2016, the Supreme Court of Appeal ln
S
v Gayiya,
[23]
with reference to section
93ter.
held
that:
'The
starting point, therefore, is for the regional magistrate to inform
the accused, before 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
proceeds
without assessors.'
[27]
The Supreme Court of Appeal made reference to and endorsed the
approach of Vahed J in
Chala
and set
aside the conviction and sentence in that matter. More recently, a
similar approach was, yet again, adopted in
Nxumalo
v The State
[24]
as well
as in
Hlatshwayo
and another v The State,
[25]
a judgment delivered a month later.
[28]
Given the circumstances alluded to above, it is most unfortunate that
much time and resources are spent to prosecute accused
persons in
serious offences only for those entrusted with the onerous
responsibility to prosecute and adjudicate appear not to
comply with
the basic tenets of what is expected. A reading of the substantive
charge preferred against the appellant and adherence
to section
93ter
would have prevented an injustice to all affected.
[29]
I am satisfied that the irregularities alluded to above are fatal so
as to vitiate the entire proceedings.
[30]
The non-compliance with section
93ter
on fundamental an
issue as the constitution of the trial court adjudicating the fate of
the appellant, coupled with what appears
to be the appellant's
deliberate exclusion in that process on at least three occasions, by
itself, has resulted in a failure of
justice as envisaged in section
322(1) of the CPA. ln the circumstances we do not think it necessary
to consider the merits of
appeal.
Conclusion
[31]
On the issue of whether the matter ought to be remitted to the
regional court for trial
de
novo,
section
322(1)(c) of the CPA empowers the appeal court to make an order as
would serve the interests of justice
[32]
In
casu,
counsel for the appellant and State, have agreed,
during the hearing of the appeal, that the interests of justice would
be best
served if the matter was to be referred back to the court
a
quo
to commence proceedings
de novo,
before a different
magistrate. We agree.
[33]
In the light of the irregularities alluded to, including that the
trial court was not properly constituted, it is clear that
the
appellant's rights to a fair trial were violated in multiple
respects. In our view the conviction and resultant sentence can

accordingly not stand.
[34]
In the result, the following orders are made:
Order
(a) The appeal is upheld.
(b) The conviction and
sentence are set aside.
(c) The matter is
remitted to the regional court to commence proceedings
de novo
before a different magistrate, at the discretion of the Director
of Public Prosecutions.
KHALLIL
AJ
I
agree
CHILI
J
Appearances
:
For
Appellant
:        Hulley
Instructed
by
:
Justice Centre
Pietermaritzburg
For
Respondent       :
C N Ngubane
Instructed
by
:        Director
of Public
Prosecutions
Pietermaritzburg
Date
of Appeal
:
6 May
2022
Date
of Judgment     :
13 May 2022
[1]
See Annexure ·”A" to the charge
sheet
wherein the charge is
substantively
framed.
[2]
See the record. page 1, lines 16-20; S v Langa 2010 (2) SACR 289
(KZP).
[3]
See the record, page 1, lines 22 -
25.
[4]
See the record at page 100, lines 1-3 and page 101, lines 13-14
[5]
Bundle of appeal record at page 58 (notice
of
motion}
and page 92 of the record.
[6]
See the record at page 101, lines 8 -
11.
[7]
See the record at page 92 and bundle of documents at
page
57.
[8]
Section 3098(2)(c)
of the
Criminal Procedure Act 51 of 1977
.
[9]
See the record at page 98.
[10]
See the record at page 100. lines
6 -
9.
[11]
A Kruger
Hiemstra's
Criminal Procedure
(Service
Issue 15 -
February
2022) at
30-62; S
v
Smith
[2011]
ZASCA 15
,
2012 (1) SACR 567
(SCA) para 7; S
v
Kruger[.2013]
ZASCA
198,
2014 (1) SACR 647
(SCA) para 2. See
also
Mphahlele v First National Bank of
SA
Ltd
[1999]
ZACC 1
,
1999 (2) SA 667
(CC),
1999 (3) BCLR 253
(CC) para 12, quoted in S
v
Molawa; S v Mpengesi,
2011
(1) SACR 350
(GSJ) para 18ffg.
[12]
S v
Gayiya
[2016]
ZASCA 65, 2016 (2) SACR 165 (SCA).
[13]
Van
Staden v S
[2018]
ZANWHC 82.
[14]
See pages 3 -
5 of the
record of proceedings in the district court.
[15]
See pages 21 -
22 of the
record of proceedings in the regional court.
[16]
See the record at page 4, lines 5 –
6.
[17]
S v
Langalitshoni
2020
(2) SACR. 65 (ECM).
[18]
See the record at page 4, lines 5 -
6.
[19]
Hlatshwayo
and another v The State
[2022]
ZAKZPHC 8
[20]
S v
Naicker
2008
(2) SACR 54 (N).
[21]
S
v
Du Plessis
2012
(2) SACR 247 (GSJ).
[22]
Chala
and others v Director of Public Prosecutions and another
[2014)
ZAKZPHC 62, SACR 283 (KZP)
[23]
S
v
Gayiya
2016
(2) SACR 165
(SCA) para 8.
[24]
Nxumalo
v
The
State
(KwaZulu-Natal
Local
Division
of
the
High
Court}
unreported
case no
AR
263/2019 (10 February 2022). Lopes J with Ploos van Amstel J
concurring.
[25]
Hlatshwayo
and another v The State
[2022]
ZAKZPHC 8.