About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2018
>>
[2018] ZAKZPHC 57
|
|
Mbatha v S (AR 348/2018) [2018] ZAKZPHC 57 (25 October 2018)
IN THE KWAZULU-NATAL HIGH
COURT PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
NOT
REPORTABLE
CASE
NUMBER
:
AR 348/2018
HEARD
AT
:
PIETERMARITZBURG
DATE
:
19 OCTOBER 2018
MSIZI
MBUYISELWA MBATHA
versus
THE
STATE
BEFORE
THE
HONOURABLE JUDGE PRESIDENT JAPPIE
and
THE
HONOURABLE JUDGE MBATHA
FOR
THE APPELLANT
: MS
L MARAIS
FOR
THE RESPONDENT
: ADVOCATE
M E MTHEMBU
INTERPRETER
:
TRANSCRIBER
: KERRY
DICKINSON
DATE
TRANSCRIBED
: 25
OCTOBER 2018
CONTRACTOR
Sneller
Recordings (Pty) Ltd • P O Box 1193 • Pietermaritzburg •
3200 Tel 033 3425256 • Fax 033 3941190
JUDGMENT
(19 OCTOBER 2018)
MBATHA
J
The
appellant was convicted by the regional court, Ixopo, on 6 July 2017
of one count of murder read with the provisions of
Section 51
of the
Criminal Law Amendment Act 105 of 1997
.
The
court found that there were substantial and compelling
circumstances
and sentenced the appellant to twenty years’ imprisonment.
The
appellant was refused leave to appeal by the trial court. Then on 7
August 2018 the appellant’s petition on conviction
and sentence
was granted by the Judge President of this Division of the High
Court.
The
issue raised by the appellant is that the regional court magistrate
had not set with assessors as required by
Section 93
ter
(1) of
the Magistrate’s Court Act 32 of 1944 and that the appellant
had not requested the learned magistrate not to sit with
assessors in
terms of the proviso to the subsection. The provision provides as
follows –
“
93
ter
Magistrate may be assisted by assessors
(1)
The judicial officer presiding at any trial may, if he deems it
expedient for the administration of justice –
(a)
evidence has been led; or
(b)
in considering a community-based punishment in respect of any
before 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.”
It
is trite that the appointment of assessors is peremptory in murder
cases in the regional court, save where the accused dispenses
with
their appointment.
In
S v Gayiya
2016 (2) SACR 165
(SCA) the court held that where
the regional court had not sat with assessors and the accused had not
dispensed with their appointment
the court was not properly
constituted and that the convictions and sentences had to be set
aside.
In
this matter, although the appellant was legally represented
throughout the trial there is nothing on the record that suggests
that he was ever made aware of this requirement or given an option to
elect whether the court should sit with or without the assessors.
There is no record of any discussion with the appellant regarding the
provisions of Section 93
ter
(1) in the entire record. It is
only mentioned in the judgment which, in my view, appears to have
been an afterthought at the instance
of the learned magistrate.
The
respondent has conceded that this was a material irregularity as the
provision is peremptory. Accordingly I find that the court
was not
properly constituted. The conviction and sentence must be set aside
as being incompetent within the meaning of Section
32(a) of the
Criminal Procedure Act.
I
propose the following order, that –
·
THE APPEAL BE UPHELD
.
·
THE CONVICTION AND SENTENCE BE SET ASIDE
.
·
THE APPELLANT BE RELEASED FROM CUSTODY WITH
IMMEDIATE
EFFECT
.
JAPPIE
JP
I agree and it is so ordered.