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[2018] ZAECMHC 75
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Langalitshoni v S (CA&R30/17) [2018] ZAECMHC 75; 2020 (2) SACR 65 (ECM) (7 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE NO.
CA&R30/17
REPORTABLE
SIZWE
LANGALITSHONI
Appellant
and
THE
STATE
Respondent
JUDGMENT
BROOKS
J
[1]
On 26 September 2016 the appellant appeared in the Regional Court for
the Eastern
Cape Region held at Mt. Frere on charges of murder,
robbery and rape. On 23 November 2016 the appellant pleaded
guilty to
the charges of murder and rape and not guilty to the charge
of robbery.
[2]
The appellant was represented in the court
a quo
. After
the charges had been put to the appellant and before he pleaded
thereto, the magistrate informed the appellant of
the applicability
of the provisions of the
Criminal Law Amendment Act 105 of 1997
which, in the circumstances of the matter, prescribed minimum
sentences in respect of each of the charges. He was correct
in
doing so and the appellant confirmed that he was aware of the fact
that upon conviction, minimum sentences would be imposed
upon him
unless substantial and compelling circumstances could be identified
which would entitle the magistrate to impose lesser
sentences.
[3]
The magistrate also warned the appellant of the possibility that
should the evidence
before the magistrate not prove all the elements
of the offences of murder, robbery or rape, the appellant may be
convicted of
lesser offences. The appellant confirmed that he
understood this.
[4]
The magistrate then addressed the legal representative of the
appellant in the following
manner:
“
Yes [name], as I
said there is no pre-trial conference, according to the charge sheet
yes, among the counts there is a murder count,
where the assessors
are supposed to be there, are you going to use the services of the
assessors?”
The response was:
“
No, your worship.”
[5]
The magistrate then invited the appellant to plead to the charges.
[6]
There can be no doubt that in referring to assessors in the context
of a charge of
murder the magistrate had in mind the provisions
of
s 93
(
ter
) (1) of the Magistrates’ Courts Act 32 of
1944 (the Act) which read, insofar as may be relevant, as follows:
“
The judicial
officer presiding at any trial may, if he deems in 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 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 a court of 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.”
[7]
The interpretation to be attached to these provisions has received
the attention of
this court
[1]
and the Supreme Court of Appeal
[2]
.
The provisions are peremptory and ordain that where a regional
magistrate is presiding in a regional court in which an accused
person is charged with murder, the regional magistrate shall be
assisted by two assessors at the trial, unless the accused person
requests that the trial proceed without assessors. “It is
only where the accused makes such request that the judicial
officer
becomes clothed with the 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.”
[3]
[8]
The statement of the legal principle quoted in the preceding
paragraph has the effect
of creating an obligation on the part of a
regional magistrate presiding over a trial involving a charge of
murder. There
are two essential elements to the obligation. The
first is to inform the accused person before the commencement of the
proceedings
what the peremptory provisions of the law require to
ensure the proper constitution of the regional court. The
second element
is to inform the accused person that he or she may
elect to proceed with the trial without assessors.
[9]
In my view, it is a relatively simple matter for a regional
magistrate to discharge
both elements of the obligation. What
is required is a repetition of the legal principle quoted elsewhere
in this judgment.
Ideally, communication of the legal principle
should be made in direct manner by the magistrate addressing the
accused person,
who should be asked at that stage to indicate whether
he or she has been made aware of the peremptory provisions. The
legal
representative of the accused person may then be asked by the
magistrate to confirm the correctness of the answer given by the
accused person. It is then necessary for the magistrate to ask
specifically whether the accused person wishes to permit the
trial to
proceed without assessors. At this point, a magistrate would
not be criticised for giving a brief outline of the
role played by
assessors in a criminal trial. The magistrate ought to be
satisfied that the answer given by the accused person
demonstrates an
appreciation of the nature of the question and reflects a reliable
response in the circumstances. The accused
person has a right
to be tried in a fully constituted court. An election to
proceed without assessors amounts to a waiver
of such right. A
waiver of a right cannot be achieved without knowledge thereof.
[4]
That this is so should be checked with the accused person and the
legal representative.
[10]
It follows that where a regional magistrate is presiding over a court
in which an unrepresented
accused person faces a charge of murder,
the obligation placed upon him or her to explain the effect of the
peremptory provisions
upon the proper constitution of the court and
the choice which the accused person has to make in the circumstances
must be discharged
with diligence and clarity. To enable the
accused person to make an informed choice where he or she does not
have the benefit
of legal representation may require the regional
magistrate to engage in a process of explanation to the accused
person. Ultimately,
the regional magistrate must be satisfied that an
unrepresented accused person is making an informed choice,
particularly when
electing to permit the matter to proceed without
assessors.
[11]
In this matter, the manner in which the magistrate approached the
peremptory provisions of s
93 (
ter
) (1) of the Act comes under
scrutiny. Although in the preamble to this question he says
“there is a murder count, where
the assessors are supposed to
be there”, which at first blush appears to address the relevant
provisions of the Act, the
actual question posed to the appellant’s
legal representative is misleading. In asking “are you
going to use
the services of the assessors”, the magistrate is
not conveying to the appellant that the proper constitution of the
court
requires that the magistrate ordinarily sits with two
assessors. The question posed suggests that the court is
constituted
ordinarily by the regional magistrate sitting alone.
It conveys the suggestion that the appellant’s legal
representative
has a right to request the participation of assessors
as an additional “service”. In the circumstances,
the question
asks whether the appellant’s legal representative
wishes to invoke an additional right, whereas it should have been
clear
that what is required is an indication of whether or not the
appellant elected to waive an existing right. One cannot simply
assume that because of the preamble contained in the magistrate’s
questioning one can accept that both the magistrate and
the legal
representative knew that the right created thereby could be
waived by the appellant and that the legal representative
of
the appellant was indeed unequivocally waiving the right created by
the section. It is also of concern that the appellant
was not
addressed personally by the magistrate and that the correctness of
his or her answer was not thereafter confirmed by the
legal
representative.
[12]
In my view, the magistrate’s question and the legal
representative’s answer do not
indicate that, with full
knowledge thereof, the appellant waived the right to a trial presided
over by a properly constituted court
consisting of a regional
magistrate and two assessors. That being so, the proceedings
were a nullity.
[13]
There was some debate before this court about the timing of the
magistrate’s question posed
to the appellant’s legal
representative. In Gayiya
[5]
the Supreme Court of Appeal directed only that the magistrate inform
the accused person of the legal requirements for the proper
constitution of the court “before commencement of trial”.
In practical terms, when is the commencement of the
trial?
[14]
In terms of the provisions of
s 76
of the
Criminal Procedure Act 51
of 1977
as read with the provisions of
s 120
thereof, unless an
accused person has been summoned to appear before the court,
proceedings at a summary trial in the lower court
shall be commenced
with the lodgement of a charge sheet with the clerk of the court.
Given that the injunction in Gayiya
is upon the presiding regional
magistrate to inform the accused person of the legal position,
clearly it was not intended by the
Supreme Court of Appeal that “the
commencement of the trial” should be understood as being at the
commencement of proceedings
as defined by the
Criminal Procedure
Act. Be
that as it may, in my view there can be no harm in
adopting a practice whereby the impact of the provisions of
s 93
(
ter
) (1) of the Act, and the nature of the election which an
accused person has to waive the right to the proper constitution of
the
court, are set out clearly in the charge sheet. This would
be a salutary practice which would ensure that a timeous reminder
is
communicated to the prosecutor and the regional magistrate that the
provisions of s93 (
ter
) (1) of the Act must be dealt with at
the commencement of the trial.
[15]
Given that the provisions of ss 93 (
ter
)
(1) (a) of the Act refers to “before any evidence has been
led”, and the fact that assessors play no role in the
adjudication of proceedings until after an accused person has
pleaded, even where a plea of guilty is tendered in accordance with
the provisions of
s 112
of the
Criminal Procedure Act,
[6]
it seems to me that it would be competent for a regional magistrate
to address the provisions of
s 93
(
ter
)
(1) of the Act with the accused person at any stage prior to evidence
being led. That said, in my view it is preferable
that the
regional magistrate address the accused person on the subject before
he or she is invited to plead to the charge of murder.
This is
so because the nature of the information and the election to which it
gives rise may well be factors which affect the manner
in which an
accused person considers his or her approach to the imminent court
proceedings, including the manner in which he or
she intends to plead
to the charge in question. It is at this stage which, for the
same reason, the applicability of the
provisions of the
Criminal Law
Amendment Act 105 of 1997
is raised by the regional magistrate.
[16]
Moreover, where a regional magistrate is presiding over a trial in
which the accused person is
unrepresented, the most convenient time
for the regional magistrate to address the unrepresented accused
person on all issues pertaining
to the conduct of the proceedings,
and thereby to ensure that the accused person receives a fair trial,
is after the charges have
been put and before the unrepresented
accused person is invited to plead thereto.
[17]
In my view, the proceedings in this matter in the court
a quo
were a nullity and the appeal against conviction and sentence must
succeed.
[18]
The following order will issue:
“
1.
The appeal succeeds.
2.
The convictions and sentences imposed upon the appellant in the
Regional Court
for the Eastern Cape Region held at Mt. Frere under
case number RCMF 129/16 are set aside.
RWN
BROOKS
JUDGE
OF THE HIGH COURT
GRIFFITHS
J:
I
agree.
RE
GRIFFITHS
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant: ADV WKM GXABA
Instructed
by: Legal Aid South Africa
96
Sutherland Street
MTHATHA
For
the respondent: ADV JKM JOUBERT
Instructed
by: Director
of Public Prosecutions.
Broadcast
House
Lower
Sissons Street
Fortgale
MTHATHA
Date
heard:09 March 2018
Date
delivered:07 June 2018
[1]
M
PHAKATHI v STATE; B MLONYENI v STATE AND S LINYANA v STATE,
unreported judgment ECHCM, 29 June 2017, Case Nos CA&R03/17;
CA&R71/16 and CA&R76/14.
[2]
GAYIYA
v STATE
2016 (2) SACR 165
(SCA); LUCKY VINCENT SHANGE v STATE
(613/2016) [2017] ZASCA (2 May 2017)
para
[5]-[7]
[3]
GAYIYA
v STATE (
supra
)
para [8].
[4]
DIRECTOR
OF PUBLIC PROSECUTIONS, TRANSVAAL v VILJOEN
2005 (1) SACR 505
(SCA)
par
[43].
[5]
GAYIYA v STATE (supra) p
ara
[8].
[6]
Section
93(
ter
)(3)
of the Magistrates’ Court Act 32 of 1944