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[2014] ZAGPPHC 1
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Mogane v S (A38/2013) [2014] ZAGPPHC 1 (9 January 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A38/2013
DATE:
09 JANUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
NICOLAS
MOGANE
...............................................
APELLANT
And
THE
STATE
.....................................................
RESPONDENT
JUDGMENT
TWALA,
AJ
1.
On the 1st August 2011 the Appellant was convicted of murder and
sentenced to 15 (fifteen) years imprisonment by the Regional
Court
Magistrate sitting at Pretoria North.
2.
The Appellant was granted leave to appeal against both conviction and
sentence.
3.
It appears from the record that the Appellant was legally represented
on the hearing of this matter
4.
The Appellant raises two issues in his appeal which are for
determination by this Court, namely:
I.
That the court a quo misdirected itself in not summoning Assessors to
assist it in the trial of this matter in terms of Section
93 ter (1)
of the Magistrate Courts Act 32 of 1944.
II.
That the Appellant was not informed at the start of the trial that
the State will rely on the provisions of Section 51 of Act
105 of
1997.
5.
First I have to consider the provisions of Section 93 ter (1) to
determine whether they are peremptory and whether non-compliance
therewith vitiates the proceedings in this matter.
6.
Section 93 ter (1) of Act 32 of 1944 provides as follows:
“
I.The
judicial officer presiding at any trial may, if he deems it expedient
for the administration of justice -
a) before
any evidence is led; or
b)
summon
to his assistance any one or more 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 an 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
reguests that the trial be proceeded with without
assessors whereupon
the judicial officer in his discretion may summon one or two
assessors to assist him.”
(my
emphasis)
7.
It is apparent that the provisions of section 93ter (1) are
peremptory in that it provides that if the accused appears in a court
of a regional division and is charged with murder the judicial
officer shall at that trial be assisted by two assessors unless
the
accused requests for the assessors to be done away with.
8.
In the present case, Magistrate Denge, who is a Magistrate in the
Regional Court, noted on the 5th October 2010 when the matter
was
postponed to 30 May 2011 for plea and trial “no assessors
needed”.
9.
In a document titled “reasons for judgment” dated 25
January 2013 filed of record by the presiding officer, B.J.O.
van
Schalkwyk, contends that he confirmed with the legal representative
of the Appellant the note of the 5th October 2010 by Mrs.
Denge that
no assessors are needed but did not think it necessary for him to
record it again.
10.
The appointment of assessors to assist the Court in terms of this
Section 93 of the Act goes to the root as to how the Court
hearing a
matter of this nature should be constituted. If the Court sits
without assessors in contravention of Section 93 of Act
44 of 1932 it
is tantamount to a Court trying the accused when it does not have the
necessary jurisdiction to do so.
11.
In S vs Mokalaka
2010 (1) SACR 88
(GNP) at 91 (par 7) Southwood J and
Makgoka, AJ observed as follows in this regard:
“
The
issue is the constitution of the court. If the court is not properly
constituted it has no power to hear the matter; the proceedings
are
irregular and must be set aside. The court is in the same position as
a court which lacks jurisdiction.”
12.
Having regard to the record and to the document filed of record by
the presiding officer dated 25 January 2013, I am of the
view that
there was sufficient compliance with the provisions of Section 93 ter
(1) of Act 32 of 1944.
13.
I now turn to deal with the second issue regarding section 51 of Act
105 of 1997.
It
was argued by the Appellant that the charge sheet does not make
mention of the fact that the State shall rely on the provisions
of
Section 51 of Act 105 of 1997 in respect of the offence - therefor
the Appellant was not warned about the fact that the minimum
sentence
is applicable.
14.
it appears from the record that Magistrate Denge has on the first
appearance of the Appellant on 7 September 2010 noted that:
“Rights
explained. Sentence implications in terms of the provisions of
Section 51 (2) of Act 105 of 1997 explained”.
15.
It is clear from the record that the Appellant was apprised of the
provisions of Section 51 (2) of the Act 105 of 1997on his
first
appearance in Court and therefore the Appellant was fully informed
that the State will rely upon the provisions of the minimum
sentences
act when it comes to sentencing.
16.
The attack on the deceased was brutal and without any provocation.
The two State witnesses testified that the deceased was sitting
there
enjoying his drinks with his girlfriend when the Appellant attacked
him with a bottle of beer. Even when the deceased pleaded
with the
Appellant that he was killing him - the Appellant did not stop
assaulting him.
17.
I am of the view that the Court a quo did not misdirect itself in
finding that there were no substantial and compelling circumstances
to justify it deviating from the prescribed minimum sentence.
18.
I therefor make the following order:
“
Appeal
is dismissed”
TWALA,
AJ
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
agree and it is so ordered.
FOURIE,
J
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Representation
for the applicant:
Counsel Adv:
MB KGAGARA
Adv
Instructed
by LEGAL AID SA Representation for respondent
Counsel Adv:
NTULI
Instructed
by: THE DIRECTOR OF PUBLIC PROSECUTIONS