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[2014] ZAGPPHC 75
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Mogane v S (A38/2013) [2014] ZAGPPHC 75 (9 January 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A38/2013
DATE:09
JANUARY 2014
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
Instructed by
LEGAL AID SA Representation for respondent
Counsel Adv:
NTULI
Instructed by:
THE DIRECTOR OF PUBLIC PROSECUTIONS