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[2021] ZAGPPHC 172
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Ngomane and Another v S (A109/2020) [2021] ZAGPPHC 172; 2021 (2) SACR 654 (GP) (24 March 2021)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO:
A109/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SIZWE
SIYABONGA
NGOMANE
1
st
Appellant
KHUMBULANI
SANELE MKHIZE
2
nd
Appellant
And
THE
STATE
Respondent
JUDGMENT
BAM J:
1.
The two appellants and a co-accused were
arraigned in the Regional Court, Benoni on the following charges:
Count 1:
Robbery with Aggravating Circumstances. The State alleged that the
accused and
his (read their)
co
-
perpetrators
committed the crime.
Count 2:
Attempted murder.
Count 3:
Murder. The State alleged that the crime was committed by the accused
in
the furtherance of a common purpose.
Count 4:
Unlawful possession of a firearm.
Count
5: Unlawful possession of
ammunition.
2.
The two appellants were convicted on counts
1, 4 and 5, but found not guilty and were discharged on counts 2 and
3. The third accused
was acquitted on all charges.
3.
A summary of the facts found by the trial
court to have been proved is as follows: The complainant was attacked
by a number of perpetrators.
The attack started when one of the
robbers knocked at the complainant’s window, and when the
complainant opened the window
he was pointed with a fire arm. Several
other men then approached and joined the first one with the firearm.
Thereafter the complainant
was robbed of his vehicle. The robbers
then drove away with the vehicle.The police were alerted and
succeeded to notice the vehicle
and follow the robbers in hot
pursuit. Shots were fired from the vehicle at the police, who
returned fire. After the vehicle had
stopped, the two appellants and
the former accused 3 were arrested. One robber got away. The fifth
robber died at the spot of a
fatal bullet wound, fired by one of the
policemen. A firearm was found next to the vehicle. The appellants’
defence that
they, innocent bystanders, were forced into the
complainant’s vehicle by the robber, was rejected.
4.
The accused were sentenced on the three
charges to a cumulative period of 15 year’s imprisonment.
5.
Upon petition to this court both appellants
were granted leave to appeal against the convictions and sentences.
6.
The appellants’ grounds of appeal, in
respect of the conviction, are, but for one ground, non-specific, and
not complying
with the required process. It is not sufficient to aver
that the trial court erred in finding that the State has proved its
case
beyond reasonable doubt, and to reject the defence of the
accused. The only acceptable specific ground seems to turn upon the
identification
of the appellants in respect of what exactly any one
of the two appellants did during the attack on, and robbery of the
complainant,
by the perpetrators.
In
respect of the sentence, the appellants complain that the sentence is
too severe in the circumstances.
7.
Adding to the mentioned grounds, before us,
the appellants raised a point
in limine,
namely that the trial court was not
constitutionally constituted in that the provisions of Section 93
ter
(
1) of the Magistrate’s Court Act
32 of 1944, concerning the issue of assessors, have not been complied
with. It involves that
the trial court did not properly explain to
the appellants what exactly their rights in regard to assessors
entailed.
8.
It is submitted on behalf of the appellants
that this is a material and fatal defect in the trial, affecting the
lawfulness, and
thus resulted in a failure of justice.
9.
Counsel for the State agreed with that
submission, and conceded that the conviction of the appellants should
be set aside, but suggested
that the matter should then be referred
back to the court
a
quo,
for
re-trial before another Regional Court Magistrate.
10.
It is unfortunate that this
point
in limine
was not brought to the
attention of the trial court, and we considered to let the matter
stand down in order to afford the Regional
Magistrate the opportunity
to respond. In this regard Mr van As, on behalf of the appellant’s
submitted that it was a question
of procedure, and not the merits,
and that this court has jurisdiction to deal with it without more.
Adv Mahomed, appearing for
the State, conceded. However, it appeared
from enquiries that the regional magistrate has already retired,
accordingly, whether
we agree with the counsel or not, after having
considered both sets of the heads of argument, and the record of the
proceedings,
we deemed it in the interests of justice to dispose of
the matter in respect of all issues raised.
11.
Section 93
ter
(1)
of the Magistrate’s Court Act provides in what circumstances a
regional court should address the appointment of assessors.
The
relevant provision in subsection (1)(b) reads as follows:
“
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 not, the judicial officer shall at that trial be assisted by two
assessors unless such an accused request that the trial
be proceeded
with without assessors …”.
12.
The record shows that at all material times
the Regional Court Magistrate, an experienced presiding officer, was
acutely alert to
the provisions of Section93
ter
(1) of the Act.
This is borne out by the
following:
12.1
On 18 September 2017, during one of the pre-trial appearances, the
two appellants and their co-accused, represented by their
respective
legal advisors, appeared before the same regional magistrate on the
day the case was postponed for plea and trial. The
following cryptic
note appears on record made and undersigned by the Magistrate:
“
No
Assessors required or requested.
Remanded to 19/10/2017 RC 2 Plea
and trial
Acc 1 i/c
Acc 2 + 3 on bail
All
confirm”.
12.2 On 10 January 2018, at the
inception of the trial the trial magistrate again addressed the issue
of assessors. Both appellants
were legally represented. The issue was
recorded as follows – p12 to p13, and p14 of the
record:
Court:“…..
What about assessors and I am sure I took it up with both parties …”
Prosecutor: “Yes”.
Court: “So assessors were not
requested or required. Is that right?
Mr Graf: “Correct your
worship.”
Prosecutor: “It was taken
up.”
Mr Graf: “Accused 1 on his
behalf we do not require the assessors.”
Court: “
Ja
Advocate
van
Drunick
.
This
should
be
placed
on
record
in
the
first
instance
.”
Prosecutor: “
I was not aware
of that…”
Court: “
What”.
13.
Mr van As, on behalf of the appellants
contended that the regional Magistrate erred in not explaining to the
appellants that a proper
constitution of the court (in murder cases)
required that the magistrate should sit with two assessors, but
instead conveyed to
the appellants that the magistrate would sit
alone, and that the appellants, if they wished to do so, could
request (or) require
that assessors be appointed. In this regard Mr
van As relied on the
dictum
in to
S v Langalitshoni
2020
(
2
)
SACR 65
(
ECM
),
and submitted that the magistrate was
obliged to address the appellants personally, and explain to them
their rights in respect
of assessors, as the magistrate did in
respect of the minimum sentence issues.
14.
In par 3 of her heads, Counsel for the
State referred us to
S v Ginyana
2016(2)
SACR 165, par 8, where it was clearly stated that: “
The
section is peremptory . . .”
and
“
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.”
15.
What, however, must be kept in mind,
is of material importance, is that this matter differs materially
from the facts of
Ginyana,
in
the following respects:
(i)
In
Ginyana
the
court had to deal with an unrepresented accused, whilst in this
matter the appellants were at all relevant times represented
by legal
practitioners.
(ii)
In
Ginyana
the
issue of assessors was not at all addressed by the magistrate at any
stage before the trial commenced: In this matter the issue
was
addressed by the magistrate on
two
occasions before the trial proceeded,
to wit on 18 September 2017 when the matter was postponed for trial,
and again, 4 months later,
on 10 January 2018, on the day the trial
commenced.\
16.
It is further of importance to note that on
both occasions in this matter the legal representatives acknowledged
the magistrate’s
address of the issue, and then waived the
appointment of assessors.
17.
It was submitted by Adv Mahomed that, in
view of the fact that it does not appear from the record that the
Regional Magistrate explained
the provisions of Section 93
ter
(1), it can be inferred that the
magistrate was not
alert to the fact
that the accused had an existing right.
This
submission is without substance. As pointed out above, the
magistrate was clearly alert to the issue of assessors by
addressing
it on two occasions. The fact that it appears on record that only
cryptic notes were made by the magistrate about the
issue, and not
the complete relevant part of the sub section, is of no consequence.
It is standard practice.
18.
It seems that what is expected of a
magistrate in the circumstances, as submitted by both counsel before
this court, is that the
legal representative of an accused should be
by passed by the magistrate in order to explain the accused’s
constitutional
rights. The question then arising is where does it
start and where does it stop, and, what is the duties of the
magistrate. The
answer is clear, only when it comes to the attention
of the magistrate that some or other procedural issue, or relevant
law implication
has not been properly explained to the accused by
their legal representatives, or at all, should the magistrate attend
to it. This
happened in this case when the magistrate established
that it was not explained to the accused that they could be convicted
of
murder even when somebody is killed after the robbery during the
pursuit of the suspects. (Record p12).
19.
Accordingly, when the accused is legally
represented, there is no overriding duty on the presiding magistrate
to explain to the
accused in any detail each and every single one of
his numerous constitutional rights.
20.
It is obvious in this case, that the legal
representatives of the appellants were also fully alert to the issue
of assessors, which
was attended to and disposed of when the
appointment of assessors was addressed by the magistrate and waived
on behalf of the appellants.
The section provides that only the
accused, obviously as advised by his legal representative, and
through his legal representative,
may waive the appointment of
without assessors.
21.
I will never be persuaded that any legal
representative appearing before a regional court in a murder case,
would not be aware of
the provisions of the said section. There is no
reason why it could be inferred that the legal representatives did
not explain
to the appellants what the issue of assessors entailed.
22.
It is a constitutional right of any accused
to appoint a legal representative, and it is a long standing and
incontestable issue
that once the accused has placed his case in the
hands of the representative, the representative has full control over
the case.
That includes the duty 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. This principle was again underlined in
S
v Maseko
SA 1982(1) AD 99.
23.
In my view there is no need, as apparently
ruled in
Langalitshoni,
when the accused is represented, for the regional magistrate, to in
minute detail explain to the accused what the act provides
in respect
of assessors, and what his rights in that regard are. We,
respectfully, are of a different opinion, and we are not bound
by the
said ECM judgment.
24.
There is no reason to find that the
regional court magistrate erred in any way in respect of the assessor
issue, there was no failure
of justice. The point
in
limine
is dismissed.
25.
In respect of the appeal on the merits, I
am satisfied that the State succeeded to prove (as noted by Adv
Mahomed, in par 2.8, in
summarising the facts of the matter) that the
complainant’s “
vehicle was
hi-jacked by 5 assailants
.”
At
all relevant times the appellants and the other perpetrators acted as
a gang when the complainant was accosted and pointed with
a firearm
in order to rob him. All five perpetrators escaped from the scene of
robbery in the complainant’s vehicle. The
version of the
appellants that they were innocent bystanders forced into the vehicle
by the robber with the firearm, was correctly
rejected by the
magistrate. We are not called upon to comment on the fact that
accused 3 was found not guilty on all charges.
26.
In respect of the question of common
purpose, raised by both representatives before us, mainly concerning
the issue of joint possession
of the firearm and ammunition (counts 4
and 5), the State alleged in the charge sheet that the accused
and
his co-perpetrators
were involved. On p17 the regional magistrate explained the
implications of the doctrine of common purpose concerning the joint
possession of the firearm to the accused.
27.
It is remarkable that the issue of
common purpose in respect of the robbery and the possession of the
firearm was addressed by the
legal representative of accused 2
(second appellant) at the trial.
28.
P28 – 29. Mr MASANGU: “
Your
worship the – essentially what is in dispute is the common
purpose. We deny that we had – both accused 2 and accused
3
deny that they had any prior knowledge of the robbery.”
29.
The contention, or concession of the State
representative that the magistrate erred in relying on the doctrine
of common purpose
and finding that the appellants had joint
possession of the firearm, and relying on the relevant decisions,
including
S v Mbuli
2003(1)
SACR 78 SCA, lose sight of what was mentioned above and the proved
facts.
The following are of importance:
(i)
The robbery was purposefully premeditated
and successful executed by a number of five perpetrators:
(ii)
The two appellants intentionally
participated in whatever happened.
(iii)
The firearm was used to intimidate the
complainant to the extent that the robbers were able to execute their
plans.
(iv)
The two appellants, in partaking in the
armed robbery, although not brandishing the firearm foresaw and
realised that the firearm
would be used as instrument to enable them
to commit the crime (Dolus eventualis.)
(v)
In associating themselves with the use of
the firearm in the commission of the robbery, and escaping with the
vehicle of the complainant,
the appellants also foresaw that the
firearm would be use to escape when confronted.
30.
We are satisfied that the regional
magistrate was correct in convicting the appellants on counts 4 and 5
as well.
31.
The regional magistrate appreciated, in
respect of counts 2 and 3, attempted murder and murder, that,
consistent with our law, in
respect of common purpose and
dolus
eventualis,
any member of a gang of
robbers where a firearm was used, is liable to be convicted of any
consequent crime like attempted murder
and murder, when one of their
gang is killed, or other people endangered, when shots are fired
during the gang’s attempt
to escape arrest. See,
inter
alia, S v Nkosi
2016(1) SACR 301 SCA.
Although we have no jurisdiction in that regard, we deem it
appropriate to remark that the two appellants
should regard
themselves very fortunate to have been acquitted in the
circumstances.
ORDER
1.
The appeal is dismissed.
AJ BAM (J)
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG
DIVISION
I
agree
M MUNZHELELE (AJ)
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG
DIVISION
DATE OF HEARING (ON PAPER)
:
15 March 2021
DATE
OF JUDGMENT
:
24 March 2021
APPEARANCES:
For the Appellants
:
Advocate F van As
For the
Respondent
: Advocate S Mahomed