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2021
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[2021] ZALMPPHC 83
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S v Nyalungu and Another (REV:96/2021) [2021] ZALMPPHC 83 (19 November 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
REV:
96/2021
In
the matter between:
THE
STATE
And
BOBO
MIKE
NYALUNGU
FIRST
ACCUSED
NTOKA
CALVIN
MOTSHOLANE
SECOND ACCUSED
REVIEW
JUDGEMENT
KGANYAGO
J
[1]
The two accused appeared in the regional court, Mahwelereng on one
count of murder read with the
provisions of section 51(1) of the
Criminal
Law
Amendment
Act
[1]
(CLAA). Both accused are legally represented. At the commencement of
the trial, the accused were appraised of their right to have
two
assessors assisting the presiding magistrate, and they chose that the
two assessors be appointed.
[2]
The two assessors were duly appointed to assist the presiding
magistrate. The two accused have pleaded
not guilty to the charge
that they are facing, and thereafter the State led the evidence
against the accused. The two accused have
also testified in their
defence after the State had closed its case. Counsel for both the
State and the accused have addressed
the court on the merits of the
case, and thereafter the court
a quo
postponed the matter for
judgment. The two assessors have been present throughout the trial
until the closing address on merits
by the State and defence.
[3]
On the day on which judgment was supposed to be delivered, the court
a quo
could not do so, as one of the assessors had lost
interest in further acting as an assessor due to the dissatisfaction
about payment
of his stipend, and had withdrawn himself from the
proceeding as per a letter which he had submitted. That
resulted in the
court
a quo
been unable to deliver its
judgment as planned as it was now left with one assessor.
[4]
Without giving the accused legal representatives and the State an
opportunity to address the court
a
quo
whether
the matter may be proceeded without the second assessor, the court
a
quo
brought
the matter to this court on special review in terms of section 304(1)
of the
Criminal
Procedure Act
[2]
(CPA).
[5]
I have requested the comments from the office of the Director of
Public Prosecutions (DPP). The
DPP has provided me with a valuable
opinion and I am indebted to them. According to the DPP, the matter
should be referred back
to the court
a quo
for the parties to
submit arguments whether the court
a quo
may proceed with the
trial with the remaining assessor or not.
[6]
The court
a
quo
is
not sure whether it is properly constituted as there is only one
assessor remaining, and it therefore seeks directives from this
court. Section 93ter (1) of the
Magistrates’
Courts Act
[3]
(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
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 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]
The two accused are appearing in the regional court on a murder
charge and in terms of section
93ter (1) of the Act, a judicial
officer at that trial must be assisted by assessors unless such an
accused request that the trial
be proceeded with without assessors.
It was settled in
S
v Gayiya
[4]
that section 93ter (1) is peremptory, and that it ordains that the
judicial officer presiding in the regional court before which
an
accused is charged with murder shall be assisted by two assessors at
the trial, unless the accused request that the trial proceed
without
assessors. The court further held that 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.
[8]
In the case at hand, the accused at the commencement of the trial
chose that the judicial officer
in their matter be assisted by
assessors. The section prescribes two assessors, and it is after the
accused have made a choice
that a judicial officer had a discretion
to either summon one or two assessors to assist him/her. In this case
the judicial officer
had summoned two assessors who have been
assisting him throughout the trial until both the State and defence
have addressed the
court
a quo
on the merits of case, when one
assessor decided withdrew himself from the proceedings. The question
is what remedy does the court
a quo
have in the situation in
which it finds itself in.
[9]
Section 93ter (11) of the Act provides as follows:
“
(a)If
an assessor-
(i)dies;
(ii)in the
opinion of the presiding officer becomes unable to act as an
assessor;
(iii)is for any
reason absent; or
(iv)has been order
to recuse himself or herself or has recused himself or herself in
terms of subsection (10),
at any stage before
the completion of the proceedings concerned, the presiding judicial
officer may in the interest of justice and
after due consideration of
the arguments put forward by the accused person and the prosecutor-
(aa)direct that the
proceedings continue before the remaining member or members of the
court;
(bb)direct
that the proceedings start afresh; or
(cc)in the
circumstances contemplated in subparagraph (iii), postpone the
proceedings in order to obtain the assessor’s presence:
Provided that if an
accused person has legal representation and the prosecutor and the
accused person consent thereto, the proceedings
shall, in the
circumstances contemplated in subparagraphs (i), (ii) or (iv),
continue before the remaining member or members of
the court.
(b)If, at
proceedings which are continued in terms of this subsection, the
judicial officer is assisted by the remaining assessor,
the finding
or the decision of the judicial officer shall, in respect of any
matter where there is a difference of opinion between
the judicial
officer and the assessor, be the finding or decision of the court.
(c)The judicial
officer shall give reasons for any direction referred to in paragraph
(a), and for any finding or decision referred
to in paragraph (b).”
[10]
The remedy available to the presiding magistrate in the situation in
which the court
a quo
finds itself lies in section 93ter 11(a)
of the Act as the assessor had withdrawn himself from the
proceedings. By submitting a
letter that he does no longer wish to
act as an assessor, and was a clear indication that he was
withdrawing himself from the proceedings.
With the reasons which the
assessor had given in his withdrawal letter, it is clear to the
presiding magistrate that the assessor
in question has rendered
himself unable to act as an assessor anymore in this matter. From the
memo of the presiding magistrate
and the record of the proceedings,
it is clear that the accused and the State were not afforded an
opportunity to put forward arguments
which the court
a quo
should consider in order to decide whether the proceedings may
continue with one assessor, or that the proceedings start afresh.
Both accused are legally represented, the presiding magistrate can
still find out from the State and the accused legal representatives
whether they consent to the trial proceeding before the remaining
members of the court, and if the consent that will settle the
matter,
and there will be no need for arguments.
[11]
It is clear that the presiding magistrate had not yet exhausted the
remedies available to him as provided
for in section 93ter (11). In
my view, the remedies in that section are adequate to cater for the
situation in which the court
a quo
find itself in, and this
matter was not even supposed to have brought to this court at this
stage. I agree with the DPP that this
matter be referred back to the
court
a quo
to afford the parties an opportunity to either
consent to the matter proceeding before the remaining members of the
court or present
arguments for the court
a quo
to consider
what will be in the interest of justice regarding the matter.
[12]
In the result I make the following order:
12.1
The matter is referred back to the court
a
quo
for
the accused legal representatives and the State to either consent to
the matter proceeding before the remaining members of the
court or
presenting arguments for the court
a
quo
to
consider as to what will be in the interest of justice regarding the
matter.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
SEMENYA
DJP
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
DATE
DELIVERED
: 19
th
November 2021
[1]
105 of 1997
[2]
51 of 1977
[3]
32 of 1944
[4]
2016 (2) SACR
165
(SCA) at para 8