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[2017] ZALMPPHC 33
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S v Mashabela (REV91/2017) [2017] ZALMPPHC 33 (30 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE
NO: REV 91/2017
Not
reportable
Not
of interest to other judges
Revised.
30
October 2017
In
the matter between:
THE
STATE
APPLICANT
and
MMANGWAILE
LIPSON MASHABELA
RESPONDENT
JUDGMENT: REVIEW
Summary:
Criminal
procedure: Special review – When trial court sitting as court
of a regional division – Section 93 ter Act 51
of 1977 –
Court to be assisted by two assessors except accused requests
otherwise judicial officer has a discretion to summon
one or two
assessors - Section 93(2) to be considered when applying
discretion –
Issue: Whether
trial court obliged to proceed with trial absent the “remaining”
member and whether the Court was
properly constituted. –
the principle in S v
Gayiya followed and applied
Principle: Where one
assessor defaulted in the course of trial the interests of justice
may require that the trial proceeds before
remaining member or
members of the court-
Section
93(II)(ii)(a)(aa),(bb) applicable – In
casu,
the
remaining member defaulting in middle of trial .
Held: a judicial officer
of court of regional division is required to sit with two assessors
to conclusion of trial, unless accused
after being properly apprised
of his/her rights, dispense his/her rights – the proceedings of
the court
a quo
reviewed and set aside , matter to start
de
novo.
M.G
PHATUDI J
[1]
The accused in this matter has been charged with one count of Murder
read with
Section 51(2)
of the
Criminal Law Amendment Act, 1997
,
[1]
and also two counts of Attempted Murder.
[2]
When the matter was called on 10 March 2016 and before the accused
was asked to plead to the charges, the issue of the assessors
came to
the fore. This had arisen on account of the fact the accused whose
trial was in the Regional Court, faced a Murder charge
which on
conviction could attract prescribed minimum sentence, unless
substantial and compelling circumstances were established
which could
possibly actuate the court to impose a lesser penalty than the one
prescribed.
[3]
The accused was legally represented at the trial.
[4]
Where an accused person has been charged with murder as indicated,
and appears in a Regional Court, his trial is governed
inter
alia
by the provisions of
Section 93
ter
(1)
(a) and (b) of the Magistrate’s Court Act, 1944(“the
Act”)
[2]
which
provides that:
Section
93
ter
:
“
The
judicial officer presiding at any trial may, if he deems it expedient
for the administration of justice –
(a)……………………..
(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
the 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] Because of the
gravity of the murder charge, Section 93
ter
imposes an
obligation upon a Magistrate of a Regional Division trying the matter
to summon the assistance of two assessors at the
trial proceedings.
This requirement is a necessary imperative unless the accused person
pertinently requests that the trial be
proceeded with without
assessors.
[6]
If the accused, makes a request contrary to the obligation imposed on
the regional court magistrate before whom the matter is
to proceed,
the court, however, retains a discretion whether or not to summon the
assistance of two assessors to assist him /her
in the trial
regardless of the accused’s wishes that the matter proceeds on
trial without the two assessors. The court’s
discretion, which
must be exercised judicially even though unfettered, derives from the
provisions of Section 93ter(2) of the Act.
In
essence, Section 93 ter(2) provides that in considering whether
summoning assessors under subsection (1) of the Act would be
expedient for the administration of justice, the judicial officer as
in the present case, was required to take into account
inter
alia
the
cultural and social environment from which the accused originates,
his academic backround, the gravity of the offence preferred
against
him, the extent or probable extent of sentence to which he/she might
be exposed on conviction, and of course, the knowledge
and general
experience of the candidate assessors which might be employed in
assisting the court.
[7]
In the present instance, undoubtedly, the presiding officer, applying
his discretion and correctly so in my view, postponed
the matter to a
later date so as to accommodate the accused’s wishes. The
matter was accordingly remanded to 07 April 2016
for the two
assessors to sit during trial.
[8]
On 07 April 2016, the matter indeed proceeded in the presence of the
two assessors assisting the presiding officer. The accused
pleaded
not guilty to the charges and the prosecution led evidence on behalf
of the state. The matter was adjourned to 24 May 2016
and 26 May
2016, respectively, for further evidence.
[9]
On 24 May 2016, however, one of the assessors Mr. Moleke Mamogoane
(“Mamogane”) was absent from the trial and the
matter was
remanded to 26 May 2016, where upon the state led further evidence
with one witness and the matter was, once again,
remanded to 26 July
2016 for further evidence.
[10]. On 26 July 2016,
Mamogane had again defaulted. It was alleged by the public prosecutor
in the matter that it appears Mamogane
had lost interest in his role
as an assessor in the matter due to dissatisfaction with the stipend
he received.
The
court having heard submissions made by both the state prosecutor and
the defence regarding the desirability or otherwise of
proceeding
with further trial in the absence of Mamogane one of the appointed
assessors, the court decided to proceed with the
trial in the absence
of the assessor.
(It
is not clear as to why the defaulting assessor was at times referred
to on the record as “Maluleke”)
Record,
Pp 144-145
[11]
Be that as it may, one of the assessors clearly was absent on 26 July
2016. It then called for consideration whether the court
was entitled
to proceed with the trial in the absence of the defaulting assessor.
[12] In this regard, the
court relying on the provisions of Section 93ter(II)(a) of the Act,
ruled that the court “proceed
with the matter with one
assessor.”
Section
93ter(II)(a)
provides:-
“
If
an assessor –
(i)…………………
(ii) in the opinion of
the presiding officer becomes unable to act as an assessor; or
(iii) for any reason
absent; or
(iv) ……………….;
at any
stage before completion of the proceedings concerned, the presiding
judicial officer may, in the interests of justice and
after due
consideration of the arguments put forward-
(aa)
direct that the proceedings continue before the remaining member or
members of the court;
(bb) direct that the
proceedings start afresh”
(cc)………………………
[13]
A closer scrutiny of subsection 11 of Section 93ter confers on a
presiding officer, a discretion, whether to proceed with the
trial in
the absence of one of the appointed assessor or simply to
direct that the proceedings start
de
novo.
[14]
Pursuant to this ruling, the trial proceeded on 18 April 2017 after a
few remands, with the accused testifying in his own defence.
Prior to
that, the state had closed its case on previous occasion. The accused
then testified on 18 April 2017 and at the conclusion
of his
testimony, the defence sought to call further witnesses to testify.
The matter had to be adjourned further and was further
remanded to 09
May 2017.
[15]
It was on this day (09 May 2017) that the state prosecutor sprang a
surprise and placed on record that on previous occasion
(18 April
2017) when the accused took a stand, once again, the last of the
remaining assessor, Mr. Mosotho (“Mosotho”)
was in
default, and so he was on 09 May 2017.
[16] Confronted with this
predicament, the presiding officer had to make a ruling, as it did in
terms of the provisions of Section
93 ter, whether to proceed with
the balance of the trial in the absence of the second defaulting
assessor.
[17]
As it appears from the trial record, Mosotho had at all material
times been present when the state led evidence against the
accused.
He, however, defaulted when on 18 April 2017, the accused testified.
On 09 May 2017, he was again absent from court.
[18]
This then raised the question, in the light of these developments,
whether the court was entitled to proceed with
the trial
in the absence of the second assessor whose continued role was
ordained by Section 93ter(11) (a)(ii) and (iii), regard
being had to
the matter was correctly before the “remaining” member or
members of the Court.
[3]
[19]
The court below, mindful of the provisions of Section 93
ter
,
in particular, Section 93ter(1) and given the magnitude of the murder
charge, was obliged to have heard the matter throughout the
trial
assisted by or in the presence of the assessors, notwithstanding the
provisions of Section 93ter(11)(a)(i),(iii)(“aa”)
of the
Act.
[20]
In the premises, the issue that arises is whether the trial court was
since 18 April 2017 or even probably before (19 January
2017)
properly constituted including the last day of 09 May 2017, when its
attention was drawn to this anomaly. This question requires
a closer
examination.
[21] In this instance, it
is common cause that the accused who faced a murder charge which was
justiciable in the Regional Court,
was entitled to have his trial
constituted by two assessors, unless he requested that the trial be
proceeded with without assessors.
In that event, the presiding
officer may, in his discretion, summon one or two assessors to assist
him.
[22] It is furthermore
common cause that the judicial officer having granted accused’s
request, commenced with a fully constituted
court, until one of the
assessors lost interest in the course of trial. The presiding
officer, who later remained with one assessor,
correctly proceeded
with trial after having heard submissions by both the state
prosecutor and the defence attorney.
Matters
came to a head when later, and inadvertently to the court, the
remaining assessor also defaulted for reasons inexplicable
to the
court.
[23]
It was against this backdrop that the presiding officer halted the
proceedings and referred the matter to this court for a
special
review. The Director of Public Prosecution’s (“DPP”)
comments were also invited following the written
statement set forth
by the court below as to why a special review of the matter was
sought.
[24]
Both the presiding officer and the DPP referred to
S
v Gayiya
[4]
for
guidance in their submissions. In
Gayiya’s
case, the issue of non-apprisal by the presiding officer to the
accused of his right to be heard by a court sitting with assessors
was characterised by Bertelsmann J, when he considered accused’s
application for leave to appeal as a “ fundamental
problem”
which had arisen in the matter.
[5]
It was for that reason that the learned judge granted leave to appeal
both against conviction and sentence.
[25]
In
Gayiya’s
case above, the issue in the appeal was whether the court
a
quo
(Regional
Court) before which the accused stood trial, was properly
constituted. Section 93
ter
(1)
was held to be peremptory. It was held at page 168h-j that:
“
It
ordains 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.”
[26] In this review,
however, it is plain from the onset of the trial that the judicial
officer has followed the principle enunciated
in the Gayiya’s
case, until in the middle of the trial, the two assessors detached
themselves from the proceedings.
This
is precisely what actuated the presiding officer and, correctly so in
my view, to have halted the proceedings before conviction
and
sentence by referring the matter on a special review. For that
reason, and having halted the proceedings with the referral,
there
could not have been a panacea for the supervening irregularity that
ensued.
[27]
The principle in
Gayiya’s
case
above, that it is imperative for a judicial officer (Regional
Magistrate) to sit with assessors was reiterated, applied and
followed
in
Shange
v S
[6]
.
It
is now settled
,
that
a judicial officer is required to sit with two assessors during trial
unless the accused person after being properly apprised
of his/her
right, dispenses of that right to be tried with assessors in a court
of regional division, where serious offences (e.g.
murder) are to be
tried.
[28]
In the result, I deem the following Order appropriate:
(a).
The trial proceedings in the Court
a
quo
are reviewed and set aside.
(b). The trial is to
start
de novo
before another Regional Court Magistrate.
_________________________
M.G
PHATUDI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
I agree.
_________________________
E.M
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT
LIMPOPO DIVISION
[1]
Act 105 of 1997, as
amended
[2]
Act 32 of
1944, as amended.
[3]
Section 93(11)
(ii), (iii) (‘aa’) of the Act.
[4]
2016 (2) SACR 165
(SCA)
[5]
Gayiya’s
case
supra,
P168 h-j.
[6]
Case No
(613/2016)[2017] ZASCA 51 delivered 02 May 2017- per Lewis JA.