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[2018] ZAKZPHC 24
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Siwela v S (AR509/2017) [2018] ZAKZPHC 24 (20 June 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: AR509/2017
In the matter between:
MUSAWENKOSI SOLOMON
SIWELA
APPELLANT
And
THE
STATE
RESPONDENT
APPEAL JUDGMENT
MADONDO DJP
[1] Upon the plea of
guilty the Vryheid Regional Court convicted the appellant of murder
and sentenced him to fifteen (15) years’
imprisonment of which
two years were suspended on usual conditions. With the leave of this
Court the appellant now appeals against
sentence.
[2] Section 93 ter of the
Magistrates’ Courts Act, 1944
makes it peremptory for the
regional court magistrate presiding over a murder trial to sit with
assessors unless the accused himself
requests that his trial proceeds
without assessors.
[3] It is common cause
that at the time of the conviction and sentence of the appellant, the
presiding regional magistrate was sitting
without assessors in
violation of the provisions of
s 93
ter, nor did the presiding
magistrate canvass the issue with the appellant or his defence
whether or not he wished his trial to
be proceeded without assessors.
[4] Ms Anastasiou for the
appellant has contended that the learned magistrate’s failure
to invoke the provisions of se 93
ter, constituted a gross
irregularity which vitiated the proceedings on the ground that the
court a quo was not properly constituted.
[5] Subsection1 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, maybe of assistance at the trial of
the case or in determination
of a proper sentence, as the case may
maybe, to set 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.’
[6] The section is
peremptory. It prescribes that the judicial officer presiding in a
regional court before which an accused is
charged will murder shall
be assisted by two assessors at the trial, unless the accused
requests that the trial be proceeded with
without assessors.
[7] In the present case
the learned magistrate failed to comply with the provisions of s 93
ter. Nor did he enquire from the accused
whether or not he wished his
trial to proceed without assessors. The provisions of s 93 ter are
couched in a peremptory terms and
the failure to comply therewith
amounts to a fundamental irregularity as to per se vitiate the entire
proceedings.
[8] In
S v Moodie
1961(4) SA 752 (A) the court held that with regard to an
irregularity which per se amounts to a failure of justice the inquiry
is
whether:
‘
. . . the nature of
irregularity is so fundamental and serious that the proper
administration of justice and the dictates of public
interest require
it to be regarded as fatal to the proceedings in which it occurred.’
[9] In
S
v Shikunga and Another
1997
(2) SACR 470
(NMS) Mahomed CJ said that where the irregularity is so
fundamental that it can be said that in effect there was no trial at
all,
the conviction should be set aside.
[10] In
S
v Naidoo
2008(2)
SACR 54(N) 62 b-d the court held that the irregularity must have
resulted in a failure of justice. In
Chala
and others v Director of Public Prosecutions, KwaZulu-Natal and
Another
2015(2)
SACR 283 (KZP) para 25 the court held that the failure to properly
invoke the provisions of s 93 ter of the Magistrates’
Court Act
constitutes a fatal irregularity viating the entire trial.
[11] Apparently, the
vitiation of the entire proceedings is a consequence of the judicial
officers’ failure to discharge a
mandatory obligation which the
statute imposed on him or her. This remains the position even if it
had not for the irregularity,
the presiding officer would inevitably
convict him. Otherwise the appellant’s conviction could not in
any other way be challenged.
[12] In the present case
the appellant had admitted murdering the deceased, nor had he raised
any lawful defence. Had it not been
for the magistrate’s
failure to invoke the provisions of s 93 ter the appellant would have
legitimately been convicted of
murder as pleaded and sentenced.
[13] It has been common
cause between the defence and the state that technically, the failure
by the magistrate had the effect of
vitiating the entire proceedings
merely on the ground that the court a quo was not properly
constituted. It appears from the decided
cases that the mere failure
of the judicial officer to comply with the peremptory provisions of
the statute deprives the appeal
court discretion to assess the effect
of such failure or its impact on the entire proceedings.
[14] Both the state and
defence have conceded that the appellant had been convicted of a very
serious offence, murder, and sentenced
to a lengthy term of
imprisonment. The risk therefore that he may not stand trial again
should he be allowed to be at large, after
the setting aside of the
conviction and sentence, is far too great.
[15] The state and the
defence have agreed that in order to avoid unnecessary delay,
hardship to the appellant and ultimately to
prevent a miscarriage of
justice from occurring, the matter be refereed back to the regional
court for hearing before another magistrate
sitting with assessors
unless the appellant requests that his trial proceeds without
assessors. However, the defence has asked
that in sentencing the
appellant the trial court must take into account the period the
appellant will have thus far served.
ORDER
[16] In the result I make
the following order:
(a) Appeal is upheld;
(b) Both conviction and
sentence are set aside;
(c) The matter is
referred back to the regional court for hearing de novo before
another regional magistrate sitting with assessors
unless the
appellant requests his trial proceeds without assessors.
______________
MADONDO DJP
I agree;
________________
SISHI J
Appearances
Date reserved: 18 May
2018
Date delivered: 20 June
2018
For appellant Adv
Anastasiou
Instructed by: PMB
Justice Centre
For respondent: Adv PN
Ngcobo
Instructed by: The
Director of Public Prosecution, Pietermaritzburg