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[2017] ZASCA 51
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Shange v S (613/2016) [2017] ZASCA 51 (2 May 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 613/2016
In the matter between:
LUCKY VINCENT
SHANGE
APPELLANT
and
THE STATE
RESPONDENT
Neutral citation:
Shange v S
(613/2016)
[2017] ZASCA 51 (2 May 2017).
Coram:
Lewis, Petse and Mathopo
JJA and Gorven and Mbatha AJJA
Heard:
2 May 2017
Delivered:
2 May 2017
ORDER
On appeal from:
KwaZulu-Natal
Division of the High Court, Durban (Magid J, sitting as court of
appeal).
(a) The appeal is upheld.
(b) The convictions and
sentences in respect of the appellant are set aside.
(c) The appellant is to
be released from custody with immediate effect.
JUDGMENT
Lewis J (Petse and
Mathopo JJA and Gorven and Mbatha AJJA concurring)
:
[1] The appellant, Mr
Lucky Vincent Shange, was convicted of murder, robbery with
aggravating circumstances and possession of a
firearm without a
licence, in the Durban Regional Court on 8 February 2000. The
convictions were referred to the KwaZulu-Natal
High Court (Durban)
for confirmation and sentencing in terms of the
Criminal Law
Amendment Act 105 of 1997
. The high court (Hugo J) confirmed the
convictions and sentenced the appellant to life imprisonment in
respect of the murder charge;
life imprisonment in respect of the
charge of robbery with aggravating circumstances; and to two years’
imprisonment in respect
of the charge of possession of a firearm
without a licence.
[2] The high court
granted the appellant leave to appeal against the convictions to the
KwaZulu-Natal High Court (Pietermaritzburg),
but the appeal was
dismissed by the full court (Magid J, Levisohn J and M Southwood AJ
concurring) on 8 November 2001. He has been
incarcerated for some 17
years post the convictions.
[3] The appellant applied
to this court for special leave to appeal against the convictions in
2015, and this was granted on 8 September
2015. At the hearing of the
appeal today, 2 May 2017, counsel for the appellant raised an issue
that had not been presaged in heads
of argument, but of which he had
apprised counsel for the State the day before. Counsel for the State
very properly conceded the
point, and accepted that the convictions
and sentences should be set aside and the appellant immediately
released from prison.
[4] The issue raised at
the hearing is that the regional magistrate had not sat with
assessors, as required by
s 93
ter
(1) of the
Magistrates’
Courts Act 32 of 1944
, and that the appellant had not requested that
she not sit with assessors, in terms of the proviso to the
subsection. The subsection
reads, in so far as relevant:
‘
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)
…
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.’
(My
emphasis.)
[5] In
S v Gayiya
2016 (2) SACR 165
(SCA) this court, referring to
Chala v DPP,
KwaZulu-Natal
2015 (2) SACR 283
(KZP) and the authorities
discussed there, considered that where the regional magistrate had
not sat with assessors, and the accused
had not requested that the
trial not proceed with assessors, the court was not properly
constituted and that the convictions and
sentences had to be set
aside.
[6] In this matter, the
appellant was not legally represented throughout the trial. And there
is nothing on the record to suggest
that he was ever made aware of
the requirement that the regional magistrate sit with assessors or of
his right to choose whether
assessors assist with the trial. The
regional magistrate nowhere recorded that he had made such a request.
The appellant’s
co-accused was legally represented but there is
nothing to show that he was given any choice either. And the
transcription of the
trial and appearance pages state nowhere that
she had sat with assessors. The State does not suggest that the
section was not complied
with. The requirement that a judicial
officer sit with assessors is peremptory.
[7] Accordingly the court
was not properly constituted and the convictions and sentences must
be set aside as being incompetent
within the meaning of
s 324(a)
of the
Criminal Procedure Act 51 of 1977
. In the result:
(a) The appeal is upheld.
(b) The convictions and
sentences in respect of the appellant are set aside.
(c) The appellant is to
be released from custody with immediate effect.
_______________________
C H Lewis
Judge
of Appeal
APPEARANCES
For Appellant
L Barnard
Instructed
by:
Ncama & Associates, Durban
Rampai
Attorneys, Bloemfontein
For
Respondent
S Sankar
Instructed
by: The
Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions, Bloemfontein