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[2015] ZAGPPHC 273
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S v Nhlapho and Others (A291/15) [2015] ZAGPPHC 273; 2016 (1) SACR 489 (GP) (6 May 2015)
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
HIGH COURT REF.
NO. 70/2015
MAGISTRATE’S
SERIAL NO. 18/2014
REVIEW CASE NO.
SH103/2013
DATE: 6 MAY 2015
DATE: A291/15
REPORTABLE
OF INTEREST TO
OTHER JUDGES
THE STATE v
THABANG NHLAPHO, LUCAS BONGANI KHALANGOBE, MODIBEDI ROOI THAMAHA AND
MTOMBENI VUSI GODFREY
REVIEW JUDGMENT
1. This matter came
before the court as a special review in terms of
section 304A
of the
Criminal Procedure Act 51 of 1977
. The matter commenced on 26
February 2013 according to the notes preceding the typewritten
transcript of the proceedings. All the
accused were in custody.
2.
Section 93
ter
of
the Magistrates’ Court Act 32 of 1944 provides as follows: —
“
The
judicial officer presiding at any trial may, if he deems it expedient
for the administration ofjustice
—
(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."
3. Section 304A(a)
of the Criminal procedure Act reads as follows: —
"(a) If a
magistrate or regional magistrate after conviction but before
sentence is of the opinion that the proceedings in
respect of which
he brought in a conviction are not in accordance with justice, or
that doubt exists whether the proceedings are
in accordance with
justice, he shall, without sentencing the accused, record the reasons
for his opinion and transmit them, together
with the record of the
proceedings, to the registrar of the provincial division having
jurisdiction, and such registrar shall,
as soon as is practicable,
lay the same for review in chambers before a judge, who shall have
the same powers in respect of such
proceedings as if the record
thereof had been laid before him in terms of section 303.”
4. Furthermore
section 304A(b) provides as follows: —
“
(b)
When a magistrate or a regional magistrate acts in terms of paragraph
(a), he shall inform the accused accordingly and postpone
the case to
some future date pending the outcome of the review proceedings and,
if the accused is in custody, the magistrate or
regional magistrate
may make such order with regard to the detention or release of the
accused as he may deem fit.”
5.
In the case of
S v Naicker
2008
(2) SACR 54
(N) Msimang J and Ngobene AJ held that there were various
forms of irregularity which could taint proceedings in the
magistrate’s
court.
6. Section
93ter(l)(b) employs peremptory language in providing for assessors to
be appointed where an accused is charged with murder
before the
regional court.
7.
This fact notwithstanding, the court in
Naicker
supra
held
that the failure to appoint assessors is not an irregularity which
renders proceedings
per
se
irregular.
Such an irregularity, according to Holmes AJ was not so fundamental
that it, in fact, amounted to a
per
se
failure
of justice. His Lordship stated the following at paragraph 61 h: —
“
Having
regard to the purpose and the history of the system of trial by
assessors in the lower courts as briefly stated above, it
is my
considered opinion that despite the peremptory manner whereby the
proviso to section 93ter(l)(a) has been couched, failure
to comply
therewith is not so serious and fundamental as per se to vitiate the
proceedings. To borrow from the American nomenclature,
such an
irregularity may be subjected to a harmless error analysis. ”
8.
In sharp contradistinction, in the matter of
S v
du Plessis
2012 (2) SACR
247
(GSJ),
it
was held that the failure to provide assessors fundamentally taints
such proceedings and the court
cannot
condone
non-compliance. Because the
Naicker
case
emanates from Natal, the court in
S v Dladla
(A583/14) [2014] ZAGPPHC 595 (14
August 2014)
supra
held
that in terms of the
stare
decisis
rule,
it had to follow the Gauteng judgment of
S v du
Plessis.
9.
Clearly that is not what the
stare
decisis
rule
dictates. A Gauteng court may follow the judgment of another division
if it believes it to be the correct judgment and the
Gauteng judgment
to be clearly erroneous.
10.
This Division has adopted the stance that a failure to appoint
assessors is a gross irregularity and has decided to follow
Naicker
supra
,
see Southwood J and Makgoka AJ (as he then was) in
Moka!aka
v
S
2010
(1) SACR 88
(GNP). I respectfully associate myself with the reasoning
in their judgment.
11. A further
question which arises is - given the fact that the accused have not
yet been convicted, may this court interfere?
Clearly the answer
should be in the affirmative. It would be folly and a waste of the
court's time and financial resources to proceed
to conviction in the
full knowledge that there is an irregularity in the proceedings.
12.
In the matter of
S
v
Ralo
(CA&R
39/2012) [2012] ZAECGHC
7
(16 February 2012)
at
paragraph 7 the following section of the
Criminal Procedure Act was
quoted: —
“
7
Section 304(4)
of the
Criminal Procedure Act
provides
that: If in any criminal case in which a magistrate’s
court has imposed sentence which is not subject to review in the
ordinary
course in terms of
section
302
or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial or local
division having jurisdiction
or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or
judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge
in terms of
section 303
or the section”
12.
It was further held in the said matter that:
“
(o)n
a plain reading of the section it only provides for a review of the
proceedings at the instance of a magistrate
after
conviction and sentence of an accused person. This does not
however detract from a court's inherent jurisdiction to interfere in
exceptional circumstances at any stage of uncompleted proceedings
where a grave injustice may otherwise arise. (See in this regard
S v
April
1985 (1) SA 639
(NC) at 645; S v Shezi
1984 (2) SA 577
(N) at
579 -580.)”
13.
In
S v Ralo
supra
reference
was also made to the following dictum from
S v
Titus
2005 (2) SACR (NC)
at
paragraph 14: —
"In my
view, the Act prescribes the manner in which a court should be
constituted. Non-compliance with the peremptory provisions
of how a
court should be constituted in murder trials, is per se grossly
irregular. One need not go further and check whether such
an
irregularity amounts to a failure of justice, or that, given the
circumstances of the case and the seriousness of the offence,
it will
not be in the interests of justice to upset the conviction.
The
fact that the lesislature made it incompetent for
the
magistrate to preside alone under certain circumstances
.
cannot be made competent by the fact that there is
overwhelming
evidence that the appellant is
guilty of the offence of which he has
been
convicted
. This situation is different from
instances analysed by Steenkamp J (as he then was) in S v Khuzwayo
2002 (1) SACR 24
(NC) which Mr JJ Cloete has extensively referred
this Court to. I agree with the submission that not all
irregularities will lead
to a failure of justice and that each case
should be considered on its own facts. The nature and the degree of
the irregularity
should play an important role.”
[emphasis
added]
14.
In
S v Khambule
1999
(2) SACR 365
(O),
it
was decided in an appeal against a conviction by the regional court
that
section
93fer(l)(b)
requires a positive act on the part of an accused who must request
that the trial proceed without assessors.
Since
the section deals with the composition of
the
court which may have a material bearing on the outcome of the
proceeding
it is necessary that the provisions of the section be brought to
the
attention of the defence and that the request to proceed in the
absence of
assessors
must appear from the record of proceeding
.
On the basis of this the court found that non-compliance with the
provisions of the section constitutes not only an irregularity
but
also a failure of justice.
1
15.
In -S
v Ralo
supra
at
paragraph 18 it was held, incorrectly, in the court's opinion, that
proceedings must reach the conviction stage before a matter
may be
reviewed by a court. It is clear from the record that the accused
were never appraised of their right to have assessors
appointed.
16. However, there
are different schools of thought on this issue. It has been stated
that when the matter has run its course and
a conviction has been
obtained, only then may another court ascertain whether the
appointment of assessors was a necessity. This
reasoning is
circuitous. One would never be able to peer through a crystal ball
regarding the possible impact which the lack of
assessors may or may
not have on a trial. In the court’s view, the irregularity
should be addressed as soon as possible.
17.
The main charges against the four accused were murder (read with the
provisions of section 51(1) of the Criminal Taw Amendment
Act 105 of
1997) in that they had: —
“
...unlawfully
and intentionally killed one VUSI SELBY MATHIBELA a male person BY
SHOOTING HIM WITH A FIREARM.
When it was
planned and/or premeditated,
When the
death of the victim was caused by the accused in committing and/or
attempting to commit and/or after having committed
and/or having
attempted to commit one of the following offences:
ii Robbery
with aggravating circumstances, or
When the
offence was committed by a person, group of persons or syndicate
acting in the execution and or furtherance of a common
purpose
and/or conspiracy.”
18.
The lesser charge was one of “...
robbery
with aggravating circumstances as amended in section 1 of Act 51
of1977'.
(sic)
19. Further,
according to the typed notes preceding the written transcript, the
matter was postponed on approximately 25 occasions.
Some of them were
caused by the accused requesting legal representation, legal
representatives not being available, witnesses not
being available or
further witnesses having to be called, the public prosecutor being
ill, investigations still pending, the accused
not having received
the docket and the like.
20. The accused
pleaded not guilty to the charges put to them and when asked whether
they wished to give a plea explanation, exercised
their right to
remain silent. The provisions of section 51 were also correctly
explained to the accused. Evidence was led and later
a trial within a
trial relating to a confession on the part of accused number one was
conducted.
21. The true
transcript of the proceedings commences on 15 October 2013. Part of
what has been set out above was gleaned from notes
made by Mr. C K
Matshitse, the acting regional magistrate - Benoni.
22.
On 15 October 2013, the prosecutor was clearly painfully aware of all
the undue delays, and took it upon himself to explain
that there had
been a miscommunication between the previous prosecutor Ms Mbhele,
who became ill and the investigating officer
as Ms Mbhele had
undertaken to indicate on the docket which witnesses had to be
called, but had failed to do so. The public prosecutor
who apparently
took over from her. Mr Mthethwa, referred to section 35 of the
Constitution which guarantees an accused a fair trial
but sought to
argue that this right was limited by section 36 of the Constitution.
He pre-empted what the legal representatives
for accused number one
and number two intended to argue with reference to cases such as
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC);
1997 (12)
BCLR 1675
(CC)
wherein
it was stated: —
“
Every
accused person shall have the right to a fair trial, which shall
include the right —
(a) to a
public trial before an ordinary court of law
within
a reasonable time after having been charged
[emphasis
added]
23. The legal
representative also forcefully argued that public prosecutors
obtained dockets well in advance of hearing dates and
should be able
to ascertain which witnesses have to be called. The legal
representative for accused number three and number four
similarly
objected to a further postponement. Ultimately the matter stood down
to the following day in order for one relevant witness
to be called.
However, on that day. the relevant witness was not available.
24. The regional
magistrate was then forced to make a finding about the unreasonable
delays and referred to
section 342A
of the
Criminal Procedure Act. He
quoted the learned author Hiemstra
2
who states that the questions to be posed in terms of
section 342A
are twofold: was there an unreasonable delay and, if this is the
case, what should be done about it. In his discretion, the learned
regional magistrate gave the state a further remand stating as his
reason for doing so that not only the accused’s rights
had to
be considered, but also the seriousness of the offence and the
interests of the community.
12.
After the evidence in the trial within the trial had been led (but
argument had not yet been presented) the regional magistrate
apparently wished to give a judgment. Before giving judgment in
respect of the trial within the trial, the regional magistrate
realised that the proceedings in their totality were tainted by an
irregularity, namely that, in terms of
section 93
ter
of
the Magistrates’ Court Act 32 of 1944, the court had not
appointed assessors and neither had the accused requested the
presiding officer to proceed without the assistance of assessors.
13. All the parties
concurred that this irregularity had occurred and it was for this
reason that the matter was referred to me
as a special review.
14.
In consequence, the following order is made: —
1.
The proceedings in the matter of
The
State
v
Thabang Nhlapho
,
Lucas Bongani
Khalangobe and Modibedi Rooi Thamaha
(Case
No. SHI03/2013) which commenced before Magistrate Mr Matshitse
on
the
15
th
of October 2015 in the Regional Court for the Regional Division of
Gauteng, Benoni are declared to be
void
ab initio.
2. The four accused
are to be released immediately.
JANSEN J
JUDGE OF THE HIGH
COURT
I agree
BERTELSMANN J
JUDGE OF THE HIGH
COURT
1
S v Ralo
(CA&R
39/2012) [2012] ZAECGHC 7 (16 February 2012).
2
Hiemstra's
Criminal Procedure
-
V.G. Hiemstra, Albert Kruger (Author) LexisNexis 2011 at 33-20.