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[2021] ZAECMHC 8
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S v Papiyana and Another (CA&R 19/2021) [2021] ZAECMHC 8; 2021 (2) SACR 327 (ECM) (23 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Reportable
I
Yes
I
CASE
NO: CA&R 19/2021
Review
number: 217650
Date
delivered: 23 February 2021
In
the matter between:
THE
STATE
and
MALIBONGWE
PAPIYANA
ACCUSED NO.1
LUVO
MBANA
ACCUSED NO.2
REVIEW
JUDGMENT
NOTYESI
AJ:
Introduction
[1]
These are review proceedings in terms of
section 304A
of the
Criminal Procedure Act, 51 of 1977
, as
amended ("the Act"). The Regional Court Magistrate of Lady
Frere, Ms Ngcongolo has referred this matter to this court
with a
request for the setting aside of the conviction she had handed down
in respect of the two accused persons (Malibongwe Papiyana
and Luvo
Mbana). The accused were convicted by her on a charge of murder.
Background
[2]
The accused persons had appeared before
the Magistrate, sitting at Lady Frere regional court facing the
charge of murder. Both of
them were legally represented. The
magistrate advised them as she is obliged to do about their right to
be tried in the presence
of assessors. The accused persons exercised
their right and elected for the presence of assessors in their trial.
The assessors
were not immediately available and the matter had to be
postponed pending the appointment of assessors. When the matter again
came
before the regional court for commencement of the trial, only
one assessor became available. It appears that the court manager had
failed to secure the presence of two assessors as required in terms
of the statute. The record suggests that the department has
a limited
number of persons available to act as assessors. This too, is the
reason the magistrate put forward for proceeding in
the absence of
the second assessor as is the case here. The regional Magistrate
decided to proceed with the trial in the absence
of the second
assessor. The court was thus constituted by the magistrate and one
assessor.
[3]
After the leading of evidence, closing
of the cases for both parties and hearing arguments, the regional
magistrate convicted the
two accused on a charge of murder. However
before commencing with the sentencing, the Magistrate became
concerned that the
proceedings may not have been conducted according
to justice. Her attention having been drawn to the provisions of
section 93
ter
of
the Magistrates' Court Act 32 of 1944. On that basis the Magistrate
referred the matter to this court with a request for the
setting
aside of the conviction of the two accused persons. I proceed to
consider the request and whether the proceedings were
according to
justice.
Discussions
[4]
In order to answer the question whether
the proceedings were conducted according to justice, reference has to
be made to the Magistrates'
Court Act 32 of 1944. The section lays
the foundation for the presence of assessors in a trial, rights of
accused persons and the
powers of the court. Subsection (1) of s 93
ter
of
the Magistrates' Court Act reads:
"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 any
regional court 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."
[5]
In this case, prior
to the commencement of the proceedings
the magistrate,
correctly so, asked whether the accused
persons seek for the presence of Assessors in the trial. Both accused
persons confirmed
their desire for the presence of Assessors. With
the accused persons opting for the presence of Assessors, the
constitution of
the court was then settled. Section 93
fer
(1) deals with the proper
constitution of the. regional court:
"Provided
that if an accused is standing in 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."
[6]
The Magistrate appears in terms of this
section not to hold any discretion if the accused elect to have
assessors. On the one hand,
the accused persons retain freedom to
dispense with the requirement of assessors. The question presented in
this case is whether
the magistrate was correct in proceeding with
one assessor when the accused had opted for presence of assessors.
Put differently,
can a Magistrate proceed with the trial sitting only
with one assessor in circumstances, where the accused has elected for
the
presence of assessors.
[7]
In
S
v Gayiya
[1]
,
Mpati
P conclusively answered the question.
"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 two
assessors, unless
he (the accused) requests that the trial proceed
without assessors."
[8]
In
R
v Price
[2]
after
analysis of evidence and the legal challenge arising with regard to
the presence of assessors the court held:
"It
was rightly not contended on behalf of the Crown
that the appellant was precluded in any way, because
of the
request made on his behalf at the trial, from contending in this
Court that the Court which had convicted him was not a
properly
constituted Court. If in fact the Court was not properly constituted
then its verdict, and consequently also its sentence,
are
irregularities that cannot be waived by an accused person."
[9]
In
S
v Malinga
[3]
the
court reflected as follows:
"Finally,
the significance of
Van Willigh v Die Staat
(case No 296/85 -
delivered on 30 May 1986), in which the appeal was allowed on account
of the irregularity under discussion, lies
therein that this Court
(per
Jansen JA) held that the requirements of s 145(2) are
peremptory: unless in the opinion of the trial Judge concerned the
possibility
of a death sentence can be discounted, he is obliged to
appoint two assessors. The enquiry on appeal, the learned Judge said,
is
'wat die Verhoorregter se oordeel was oor die moontlikheidvan 'n
doodvonnis by die aanvang van die verhoor' (p 4 of the judgment).
It
was further held that such an irregularity, when proved to have been
committed, is of such an order as to amount
per se
to a
failure of justice vitiating the proceedings."
[10]
The above cases of which this court has
referred to confirm that the provisions of section 93
ter
are
peremptory. The consequence of non-compliance is fatal to the
proceedings. Once the accused indicate that they seek the presence
of
assessors in their trial, the Magistrate bound by that election and
is obliged to ensure the presence of those assessors. The
section
prescribes the number of the required assessors for the proper
constitution of the court. The magistrate cannot constitute
the court
contrary to the expressed provisions of section 93
ter
(1) of
the Act. It is a gross irregularity to do so.
[11]
Reasons relating to the lack of human resources cannot be a
justification for non-compliance
with this section. The comment by
the learned regional Magistrate about lack of human resources is of
great concern to this court.
The failure by the court manager to
timeously arrange for the presence of assessors must be seen and
viewed in the light of failing
systems. That becomes more compelling,
if it is to be inferred that the reasons for the failure to properly
comply with section
93
ter
(1)
of the Magistrates Court Act may be attributed to the failure on the
part of the Department of Justice and Constitutional Development
to
provide such resources, it follows that the proper functioning of the
courts and the efficient administration of justice, stand
at a risk
of being compromised. A copy of this judgment must be forwarded to
the Office of the Minister of Justice to investigate
the position and
take appropriate remedial action, if so required. It cannot be
correct that the administration of justice and
the functioning of
courts is not fully supported for the efficient delivery of justice.
Section 165(4) of the Constitution of the
Republic of South Africa
[4]
read:
"Organs
of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts."
[12]
I am satisfied that the regional
Magistrate committed a gross irregularity when she proceeded with the
trial in the absence of the
second assessor. The accused persons had
elected for the presence of the assessors. The Magistrate had no
discretion in terms of
section 93
fer
to order that the trial proceeds
only with one assessor. The court was accordingly not properly
constituted. That defect affects
the conviction of the accused and as
such the conviction stands to be set aside.
Order
[13]
I accordingly make the following order:
1.
The proceedings in which the accused
persons were convicted by the regional Magistrate are declared not to
be in accordance with
justice, and the conviction of both accused is
set aside.
2.
The registrar is to make a copy of this
judgment available to the Minister of Justice and Constitutional
Development for appropriate
remedial actions, if any in the
circumstances dealt with in para [11] of this judgment.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
I
agree
M
MALUSI
JUDGE
OF THE HIGH COURT
[1]
S v Gayiya 2016 (2) SACR 165 (SCA).
[2]
1955 (1) SA 219 (A).
[3]
1987 (3) SA 49
0(A) a t pages 495 - 496.
[4]
Act 108 of 1996