About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 31
|

|

Green v S (AR176/2021) [2022] ZAKZPHC 31 (29 July 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR176/2021
In
the matter between:
CHARLES
GREEN

APPELLANT
and
THE
STATE

RESPONDENT
ORDER
The
following order is made:
1.
The appeal is dismissed.
2.
Both the conviction and sentence are upheld.
APPEAL
JUDGMENT
Delivered
on: Friday, 29 July 2022
Dumisa
AJ (Olsen J concurring)
[1]
The appellant in this c.ase, Charles Green, was charged before a
regional magistrate
on one count of murder and one count of robbery
with aggravating circumstances. The appellant pleaded not guilty to
both counts.
The regional magistrate having heard evidence found him
guilty on both counts and sentenced him to life imprisonment and
fifteen
(15) years respectively.
[2]
The appellant enjoys an automatic right to appeal in respect of the
murder count and
also appeals also on the robbery count with leave
having been granted by the regional magistrate on the 12
th
of March 2020. The appeal is against both conviction and sentence.
[3]
The appellant’s appeal has two parts:
(a)
The main argument is that the conviction and sentence should be set
aside on the ground that the court
a quo was not properly
constituted; as the regional magistrate did not have the assistance
of assessors, as provided for in s 93
ter
of the Magistrates’
Courts Act 32 of 1944.
(b)
The second part of the appeal concerns the merits of the case.
The
focus of this judgment will thus be both on the issue of s 93
ter
and on the merits of the case.
[4]
The record of the regional magistrates’ court shows the
following participants
at the trial:
(a)
The regional magistrate was Ms N C Singh;
(b)
The prosecutor was Mr N G Mkhize; and
(c)
Ms Chanderdath who appeared on behalf of the appellant.
[5]
The record further shows that on the 19
th
of September
2019 there was a pre-trial conference where the above-three met
together with the appellant, where a number of issues
pertaining to
the hearing were discussed, including the confirmation that no lay
assessors would be required.
Grounds
of appeal on conviction and sentence
[6]
The appellant argued that the whole State case was based on
circumstantial evidence.
(a)
The State case was that the appellant, acting in common purpose with
another, unlawfully and intentionally
killed his friend Summet Singh.
(b)
One State witness, Bradley Davids, identified the appellant at an ID
parade on the 2
nd
of July 2018 as the person who,
with one Nkosi, had pawned him the deceased’s car for R8000.
(c)
Another State witness, Phumzile Hadebe, testified that she witnessed
her cousin, by the name of Nkosi,
and the appellant taking the
deceased from a red Hyundai motor vehicle (in effect the deceased’s
car) and assaulting him
on the 11
th
of June 2018.
(d)
Hadebe said the appellant had confessed that they had killed the
deceased and dumped his body somewhere.
(e)
Another witness, Nathaniel Padayachee, testified that he, Hadebe, the
appellant, and the deceased used
to take drugs together.  Padayachee
confirmed hearing the deceased pleading for his life, saying “Leave
me, leave me,
don’t kill me or don’t me”; and that
he saw the appellant the following day arriving driving the
deceased’s
motor vehicle, with Nkosi, but without the deceased.
(f)
When Padayachee asked where the deceased was, the appellant said
“Well, Nkosi stabbed him
and I shot him and we dumped the body
in Lamontville”.
(g)
The appellant attempted to discredit the evidence given by the
witnesses Hadebe, Padayachee and Davids,
labelling all as not
credible witnesses. The testimony of all these three witnesses is,
however, consistent in implicating the
appellant in the crimes.
(h)
The appellant submits that the mere fact the witnesses did not
voluntarily go to the police immediately
after they heard the
appellant admitting that they killed the deceased makes them less
credible. However, whilst they may be criticised
for that omission,
that does not mean that their evidence is unreliable. The record
reveals that the evidence of all of them, as
well as the appellant,
could not be approached upon the basis that they are ordinary law
abiding citizens, unburdened by a reluctance
to become involved with
the police. The magistrate made favourable credibility findings
concerning the state’s witnesses,
and there is no basis on
which these can be disturbed on appeal.
[7]
In substance the only submission on behalf of the appellant
concerning sentence is
that, seen in relation to his personal
circumstances, the sentences induces a sense of shock. However, the
appellant’s personal
circumstances are unexceptional. This case
concerns a cruel and callous murder, perpetrated with no purpose
other than to steal
the deceased’s car and profit from that.
The magistrate’s decision on sentence cannot be faulted.
The
constitution of the court: s 93
ter
[8]
The appellant submits that the failure by the magistrate in the court
a quo to invoke
the provisions of s 93
ter
of the
Magistrates’
Courts Act constituted
a gross irregularity which vitiated the
proceedings as the Court
a quo
was not properly constituted.
Based on these grounds the appellant submits that
(a)
it is clear from the record and the charge sheet that the appellant
was never engaged in terms of
s 93
ter
; and that
(b)
s 93
ter
creates a mandatory obligation on the presiding
officer of a murder trial to canvass the issue of assessors with the
accused. The
presiding officer in this case failed to comply with
that statutory duty.
[9]
Subsection (1) of
s 93
ter
reads as follows:
‘
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,
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 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.’
[10]
The legal question to be answered here is whether the pre-trial
conference minute of the 19
th
of  September 2019,
where it says the defence lawyer confirmed that “No lay
assessors required” gave the presiding
magistrate the
discretion not to have any assessors with her, as was the case.
The State argued that
(a)
the existence of that pre-trial conference minute which says “No
lay assessors required”
made the trial compliant with the
provisions of
s 93
ter
, despite the absence of the assessor(s);
and
(b)
the mere fact that the defence lawyer, a competent officer of the
court, confirmed that “No lay
assessors required” meant
the defence lawyer present at that pre-trial conference was
representing the interests of the appellant
in so saying.
[11]
It is as well to quote the relevant portion of the record of the
pre-trial conference. The proceedings
were in open court on the last
remand date before the trial commenced. The record was kept by the
magistrate in longhand. After
dealing with formal admissions, the
basis of the defence (a so-called “bare denial’) and the
nature of the evidence
to be presented, the record reads as follows:
‘
No
lay assessors required by the accused, + defence + State’.
[12]
In its appeal papers, the appellant cited the following three cases.
(a)
Chala and Others v Director of Public Prosecutions, KwaZulu-Natal
and Another
2015 (2) SACR 283
(KZP). In this case the court
observed:
‘
The failure to
properly invoke the provisions of
s 93
ter
of the
Magistrates’ Courts Act 32 of 1944
will constitute a
fatal irregularity vitiating the entire trial. 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 the accused, that they have the choice in the

appointment of assessors, together with a brief exposition of the
import of that choice and as to what was required of them. The
record
should also reflect, after having given such an explanation and
requesting a response from the accused, in cases where they
elected
not to have assessors, that the magistrate nevertheless still
considered whether such course was advisable in this particular
case
before him’.
(i)
In this case, the pre-trial conference minute is clear that the
defence lawyer
and the appellant said that “No lay assessors
required”. Given that lawyers regularly take instructions from
their
clients during such meetings, the Court has the duty to accept
that the defence lawyer at this pre-trial conference had fully
applied
her mind to what was in the best interests of the appellant
before confirming “No assessors required”.
(ii)
It is a reasonable assumption under the circumstances that the
defence lawyer fully
explained the implications of
s 93
ter
to
the appellant.
(b)
State v Gayiya
2016 (2) SACR 165
(SCA) (May 2016).   In
this case the appellant challenged his conviction on grounds that the
State did not invoke the
provisions of
s 93
ter
. Mpati P
opined:
‘
[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 assessors, unless
he (the
accused) requests that the trial proceed without assessors’.
(c)
S v Langalitshoni
2020 (2) SACR 65
(ECM). In this appeal case,
the court outlined how the
Gayiya
case could be applied in
cases where
s 93
ter
is required:
‘
[8]
The statement of the legal principle quoted in (the Gayiya case) 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 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 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.’
[13]
Subject to what is said in the separate concurring judgment, in my
view the requirements for
compliance with
s 93
ter
were met in
this case. There is not only a record of the defence lawyer
dispensing with the need for assessors, but also a record
of the
appellant himself doing so.
[14]
At this appeal hearing, Mr
Majola
appearing for the respondent
warned that in deciding whether the court a quo was properly
constituted we must avoid “
throwing the baby with the bath
water”
by setting aside the proceedings where there is a
clear record of the subject of the section being dealt with by a
represented accused.
As to the significance of the argument, I refer
to
S v Gumede and Others
2020 (1) SACR 644
(KZP), where Olsen
J (with Vahed J and Masipa J concurring) wrote:
‘
[13]
Legal representatives are officers of the court. Judicial officers
“act on the assumption that
a duly admitted lawyer is
competent”.  (
S v Halgryn
2002 (2) SACR 211
(SCA)
[2002] 4 All SA 157)
para 12.) Whilst the
assumption of competency may prove to be erroneous in any particular
case, it is nevertheless the assumption
upon which courts can and
must act unless and until adequate reason not to do so emerges.’
This
court has no reason to doubt the legal competence of the defence
lawyer in this case. We therefore accept that the defence
lawyer’s
“No assessors required” confirmation rendered the
continuation of the appellant’s trial to be
within the
prescripts of
s 93
ter
.  It may be assumed that the
appellant made his election with the benefit of advice.
Order
The
following order is made:
(a)
The appeal is dismissed.
(b)
Both conviction and sentence are confirmed.
Olsen
J   (DUMISA AJ concurring)
[15]
I write this concurring judgment in order to address the conflict
between the judgments in
S v Langalitshoni
2020 (2) SACR 65
(ECM) and
S v Ngomane and Another
2021 (2) SACR 654
(GP), and
to furnish reasons for our failure to follow the former judgment.
[16]
In both these cases an election to proceed without assessors was
conveyed to the presiding magistrate
by the defence lawyer. In
Langalitshoni
that was found to be insufficient to bring about
that the court was properly constituted when the magistrate sat
alone. In
Ngomane
the court declined to follow that precedent
and held that in those circumstances the magistrate could preside
alone. As appears
from the main judgment, in the present case the
magistrate took the trouble to record that not only the appellant’s
lawyer,
but the appellant himself, conveyed an election to proceed
without assessors. In my view that fact does not distinguish this
case
from the two under consideration where, although the accused did
not himself convey the election, it was done in his presence and
on
his behalf by his lawyer.
[17]
In enacting
s 93
ter
of the
Magistrates’ Courts Act the
legislature deemed it appropriate, in the case of a charge of murder,
that there be a default position. The magistrate must sit
with two
assessors unless the accused asks that the magistrate sit alone. All
that is required by the statute in order to validly
constitute a
court presided over by a magistrate sitting alone is a request from
the accused that the court should be so constituted.
The use of the
word “request” holds no significance beyond the fact that
its use is appropriate because the section
allows the magistrate in
appropriate circumstances to override the choice made by the accused
by convening a court in which the
magistrate is assisted by one or
two assessors.
[18]
I am in respectful disagreement with the analysis
of the position set out in paragraph 11 of the judgment
in
Langalitshoni
. In that case the magistrate posed the question
“are you going to use the services of assessors?”. The
appeal court
in paragraph 11 took the view that in posing that
question
‘
the
magistrate is not conveying to the appellant that the proper
constitution of the court requires that the magistrate ordinarily
sit
with two assessors. The question posed suggests that the court is
constituted ordinarily by the regional magistrate sitting
alone. It
conveys the suggestion that the appellant’s legal
representative has a right to request the participation of assessors

as an additional “service”. In the circumstances, the
question asks whether the appellant’s legal representative

wishes to invoke an additional right, whereas it should have been
clear that what is required is an indication of whether or not
the
appellant elected to waive an existing right.’
In
my respectful view the court in
Langalitshoni
erred in
equating the default position ordained by the legislature with the
ordinary position. Magistrates, including regional
magistrates,
ordinarily sit alone. The fact that the legislature ordained that
there should be a default position, that a magistrate
sits with
assessors in a murder trial, does not mean that in murder trials
regional magistrates ordinarily sit alone. The question
of what is
ordinary is one of fact. In my years on this bench hearing appeals I
have not once come across a murder trial in which
the magistrate sat
with assessors. I do not know what the position is in the Eastern
Cape, but in this province I would have two
objections to a
magistrate conveying to the accused, directly or indirectly, that in
murder cases the magistrate ordinarily sits
with two assessors.
(a)
Firstly, such a statement would probably be false.
(b)
Secondly, the impact of such a statement would, I suggest, encourage
an accused person
not to elect to be tried by a magistrate sitting
alone. The accused may be encouraged to take the view that if accused
persons
ordinarily choose that course, it is probably the right way
to go. That is not a sound basis upon which to make a decision as to

whether in the particular case the accused should ask to be tried by
a magistrate sitting alone.
[19]
In each of paragraphs 9, 11 and 12 of the judgment
in
Langalitshoni
a decision by an accused person to request
that the magistrate sits alone is characterised as a waiver of a
right to be tried by
what the learned judge called a “properly
constituted court consisting of a regional magistrate and two
assessors”.
In my respectful view that is a
mischaracterisation.
(a)
Firstly, a court comprised of a magistrate sitting alone, when the
accused has requested
that, is as “properly constituted”
as a court comprised:
(i)
of a magistrate and two assessors when the accused has not requested
the magistrate
to sit alone;
(ii)
of a magistrate and one or two assessors when the magistrate has
decided that the
accused’s request that the magistrate sit
alone should be declined.
(b)
Secondly, an accused’s right of substance is to be tried by a
court constituted
according to law. How a magistrate’s court
should be constituted is a matter for the legislature acting in
compliance with
the Constitution. Section 93
ter
of the
Magistrates’ Courts Act introduces
a novel feature, namely a
qualified right on the part of an accused person to choose how the
court should be constituted. The exercise
of that right does not
constitute a waiver of the accused’s right of substance, to be
tried by a properly constituted court.
Introducing the law of waiver,
with all its complexities and strict conditions for validity, into
this milieu is in my view unhelpful
if not incorrect. Of course, the
section in effect affords the accused an election between
inconsistent options or rights. Making
an election of that type
involves waiving the one option available as of right in order to
enjoy the other one, also available
as of right (
Feinstein v
Niggli and Another
1981 (2) SA 684
(A) at 698). The law regarding
waiver requires that a decision to abandon a right (or an option in
the case of election) rests
for its validity or enforceability on the
person having “full knowledge” of the right being
relinquished (
Laws v Rutherfurd
1924 AD 261
at 262). It seems
to me that “full knowledge” of the right to be tried with
assessors, or the right to be tried by
a magistrate alone, is an
illusory concept. Rights have content, which is realised when a right
is exercised. In the present context,
once one moves beyond the right
to choose (of which the accused must have knowledge if he or she is
making a choice), “full”
knowledge is unattainable
because the real content of the right to be tried by one or other
constitution of the court is quite
uncertain. The choice made may or
may not turn out to be the correct or advantageous one.
[20]
Of course, it is correctly not disputed by counsel for the State that
in a case such as the present
one, it must appear
ex facie
the
record that the accused person asked that the magistrate sit alone.
However, I am in respectful disagreement with what appears
implicit
in paragraph 12 of the judgment in
Langalitshoni
, that the
record should convey that when asking that the magistrate sit alone,
the accused is aware that if his or her request
is not made, the
magistrate would sit with two assessors. In my respectful view it is
implicit in a request that assessors do not
sit that the accused is
aware of the fact that otherwise assessors would sit with the
magistrate. The accused’s lawyer would
certainly draw that to
the attention of the accused.
[21]
In
Ngomane’s
case the Gauteng Division, in declining to
follow
Langaltishoni
, emphasised that it is an accused’s
right to have a legal representative. It is axiomatic that it is the
duty of the legal
representative to advise the accused on the various
decisions which must be made in preparation for and during the course
of a
criminal trial. In paragraph 22 of the judgment in
Ngomane
it is observed that it is the duty of the legal representative “to
ensure that the accused’s constitutional rights
are not
violated, and that the accused has a fair trial in accordance with
all procedural aspects and relevant legislation”.
In paragraph
21 of the judgment the court expressed the view that a legal
representative appearing before a regional court in a
murder case
would obviously be aware of the provisions of
s 93
ter
of the
Magistrates’ Courts Act and
that there is no reason to suppose
that such a legal representative would not explain to an accused
person “what the issue
of assessors entailed”.
[22]
As to the last mentioned consideration, whilst the
question as to whether an accused person should ask for
the
magistrate to sit alone requires a simple yes or no answer, the
considerations which may affect the choice are by no means
simple.
One of the important factors, from the accused’s perspective,
is the question as to the prospect of the outcome of
the case being
different, depending on whether the magistrate sits alone or with
assessors. Reflections on that subject will inevitably
traverse the
prospect of an incorrect conviction on the evidence placed before the
court; or, on the other hand, a fortunate acquittal.
These and
kindred issues do not concern the magistrate, but they are matters
which need be considered when making an informed decision.
[23]
I am in respectful agreement with the sentiment expressed in
Ngomane
(para 23) that there is no need, when an accused is represented, for
the regional magistrate to explain “what the Act provides
in
respect of assessors, and what his rights in that regard are.”
It is safe to assume that a lawyer who on record asks that
the
magistrate should sit alone has in fact conveyed to the accused that
if the request is not made the magistrate will sit with
two
assessors. The “detail” which underlies a decision as to
whether that request should be made is a matter for advice
and
consideration by the legal representative and the accused person. In
my view, and for the reasons stated in the main judgment
and in
Ngomane
, a magistrate is bound to assume that an accused’s
lawyer has competently explained the options to the accused person
unless,
as may happen exceptionally, something emerges which suggests
otherwise.
[24]
As has been done in the main judgment, the cases of
Chala
and
Gayiya
are often cited in tandem. It is important to note that
the court in
Gayiya
did not expressly endorse
Chala
,
but referred to and adopted its collection and comprehensive
discussion of earlier conflicting cases on the subject of s 93
ter
.
In paragraph 28 of the judgment in
Chala
the learned judge
expressed the view that in addition to advising the accused of the
choice to be made under s 93
ter
, the magistrate should provide
the accused with a “brief exposition of the import of that
choice”. I am uncertain as
to what the learned judge had in
mind concerning the “import” of the choice, but if he
intended that the magistrate
should ordinarily say anything more than
that the accused has a choice, and that if he does not ask the
magistrate to sit alone
the court would be convened with two
assessors, then I respectfully disagree with that view.  In
paragraph 8 of the judgment
in
Gayiya
the position was put as
follows.
‘
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.’
Whilst
this statement of the duties of a magistrate is labelled the
“starting point”, the court said nothing about anything

else a magistrate has to do to satisfy the requirements of s 93
ter
.
In
Ngomane
(para 15) it was pointed out that in
Gayiya
the court was dealing with an unrepresented accused in a case where
nothing at all was said by the magistrate concerning assessors.
In my
view it would not be correct to interpret
Gayiya
to convey that in a case where the accused is represented, the
magistrate is duty-bound to go through the motions, and describe
the
choice which is clearly already within the knowledge of the lawyer,
and accordingly at least presumptively known to her or
his client. To
do so would impermissibly elevate form above
substance
.
[25]
I have not found a report of any case in this division in which it
was held, before the judgment
in
Langalitshoni
was handed down, that a simple record of a
request by an accused (conveyed by his legal representative) that the
magistrate sit
alone is inadequate to establish the proper
constitution of a court presided over by a magistrate alone. That
accords with my understanding
of the attitude of this court at the
time, that a record of the choice alone is sufficient. I have found
three judgments which
post-date
Langalitshoni
in which that case was followed in this
division without comment. They are
Nxumalo v S
(AR263/2019 RC51/2013) [2022] ZAKZDHC 23 (10 February 2022),
Hlatshwayo and Another v State
(AR 354/20) [2022] ZAKZPHC 8 (28 March 2022) and
Zulu
v S
(AR 319/2021) [2022] ZAKZPHC 20 (13 May
2022). Despite the fact that
Ngomane
was published in 2021, the judgment was not drawn to the attention of
the judges who presided in the three cases just mentioned.
Being
unaware of the conflict, they did not deal with it. In the
circumstances I do not believe that in this appeal we are bound
to
follow the three decisions.
[26]
Finally, I believe it is appropriate to express concern about the
implications of the number
of cases in which it has been found that
courts were not correctly constituted in the light of the provisions
of s 93
ter
of the
Magistrates’ Courts Act. The
result of
such a finding is that the proceedings themselves are set aside, as
well as, obviously, the resultant conviction and
sentence, despite
the fact that in some if not many of the cases it may otherwise
appear clear that the decision of the regional
magistrate sitting
alone was correct. This involves an unacceptable waste of judicial
resources. Furthermore, in some cases a retrial
may be either
impossible or impractical. (The present matter may be such a case.
The trial took four days over a period of about
three months. One of
the principal witnesses had to be placed in witness protection.
Whether it would be feasible to do that again,
given what transpired
in the original trial, is doubtful.) Elevating the requirements for
the establishment on record of the proper
constitution of a court
presided over by a magistrate sitting alone, above what the statute
actually requires (i.e. a request that
the magistrate should sit
alone), would increase the risk of wasting judicial and associated
resources. The case of
S v Titus
2005 (2) SACR 204
(NC)
affords an example of what can go wrong if the magistrate is required
to do any more than solicit and record the accused’s
choice.
[27]
For these reasons we prefer the approach in
Ngomane
to that
adopted in
Langalitshoni
. In the result the main judgment
holds that the court a quo was properly constituted in the light of
the provisions of
s 93
ter
of the
Magistrates’ Courts
Act.
Olsen
J
Dumisa
AJ
APPEARANCES
Date
of Hearing:            Friday,
20 May 2022
Date
of Judgment:         Friday,
29 July 2022
For
appellant:
Mr

T P Pillay
Instructed
by:
Legal

Aid S.A.
Appellant’s
Attorneys
Ground Floor, The Marine
22 Dorothy Nyembe Street
Durban
(Ref.: Mr TP Pillay)
(Tel: 031 3040100)
(Email:
ThiagrajP@legal-aid.co.za
)
For
Respondent:
Mr

SM Majola
Instructed
by:
The

Director of Public Prosecutions
Respondent’s
Attorney
Pietermaritz Street
Pietermaritzburg….
KZN
(Ref: Mr Majola)
(Tel: 031- 3345114 / 031
– 3356626)
(Tel: 033 – 8454400
/ 031 – 8454420)
(Email:
simajola@npa.gov.za
)