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[2013] ZAGPPHC 105
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Malatji v S (A259/10) [2013] ZAGPPHC 105 (18 April 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: A259/10
DATE:18/04/2013
In
the matter between:
OBED
LESIBA
MALATJI
...............................................................................................
Appellant
and
THE
STATE
...................................................................................................................
Respondent
JUDGMENT
OF THE COURT
MAKGOKA
J
et
RATSHIBVUMO
AJ
[1] This appeal, which
is against both the conviction and the sentence, is with leave of the
trial court. The appellant was convicted
of murder and sentenced to
20 years’ imprisonment by the regional court, Mokopane. The
appeal raises two primary issues.
First, whether the trial court
erred in not referring the appellant for mental observation in terms
of s 79 of the Criminal Procedure
Act 51 of 1977 (the CPA). Second,
the effect of the failure by the regional court to appoint two
assessors in terms of s 93
te
r
of the CPA. The State supports the conviction and the sentence.
[2] The appellant was
legally represented. He was convicted on the basis of his own
admissions in terms of s 220 of the CPA,
and the formal evidence of
Inspector Frans Madimetja Maleka. The appellant did not testify
during the trial, and closed his case
without calling any witnesses
to testify in his defence. During the sentencing proceedings, the SAP
69 form revealed that the appellant
was convicted of murder in 1984,
and was
declared
a State President’s patient during
.
[3] During his address
in mitigation of sentence, the appellant’s legal representative
confirmed to the court that the appellant
had been
detained
in a mental hospital for a long time, but according to the
documentation in his possession the appellant had ‘fully
recovered.’
The circumstances relating to the history of his
medical condition, or his release, were not investigated further, and
the appellant
was summarily sentenced to 20 years’
imprisonment.
1
[4] The conviction on
the merits is not in dispute. Before us, the only contention is that
the appellant should have been referred
for mental observation in
terms of s 79 of the CPA, once the information about his mental
history was disclosed. Referral for mental
observation is governed by
s 78(2) of the CPA, which provides:
78(2) - ‘If it is alleged at
criminal proceedings that the accused is by reason of mental illness
or mental defect or for
any other reason not criminally responsible
for the offence charged,
or
if it appears to the court at criminal proceedings that the accused
might for such a reason not be so responsible,
the court shall in the case of an allegation or appearance of mental
illness or mental defect, and may, in any other case, direct
that the
matter be enquired into and be reported on in accordance with the
provisions of s 79.
2
(own
emphasis)
[5] An order in terms
of s 78(2) can be made at any stage of the proceedings (
S
v
Mogorosi
1979 (2) 938 (A);
S
v Majola
1980
SA 705
(W)). It can even be made after the conviction, but before
the sentence, as provided for in s 78(6)(b) of the CPA (
S
v Van As
1989 (3) SA 881
(W) at 884B-C). When acting under s 78(2), the court
does not do so on a mere allegation of criminal incapacity without
some indication
of the reasons therefor (
S
v Makoka
1979 (2) SA 933
(A)).
[6] There is no onus on
the accused. There need only be a reasonable possibility that the
accused might not be criminally liable.
If there is such possibility,
the court is obliged to order the enquiry.
The
jurisdictional threshold set out in s 78(2) is therefore met
when
there is a reasonable possibility, with regard to an objective
assessment of all the information before the court, that the
accused
is not criminally responsible or has diminished criminal capacity.
[7] From the plain
reading of s 78(2) it is clear that in the case of an allegation or
appearance of mental illness or mental
defect, the court is obliged
to direct that an enquiry be made under s 79. However, if the
allegation is made or appearance relates
to ‘any other reason’
the court has a discretion whether or not to direct that an enquiry
be made under s 79. In my
view the present case falls under the
former category. The very fact of the appellant having in the past
been detained as the State
President’s patient, was sufficient
for the court to direct that an enquiry be made under s 79. There was
more than an allegation.
[8]
For example, in
S
v Mandlasi
1987 (3) SA 14
(A), the accused had been convicted of murder. Before
sentence, an application was made on his behalf in terms of s 78(2)
to have
him referred for observation on the ground that he was not
criminally liable when the murder was committed. A district surgeon
had examined the accused on the morning of the application and was of
the opinion that the accused was normal, but could form no
opinion as
to the accused’s mental condition at the time of the murder.
Evidence had been led that the accused had made confession
to priests
of his church and had told them of his seeing visions and hearing the
deceased scream.
The
appellant’s father had also testified that at some time in the
past the appellant was ‘mad’ but that at the
time of the
murder he was normal. The application for referral was refused. On
appeal, the appellate division held that on the
information before
the trial court there was a reasonable possibility that the appellant
was mentally disturbed or suffered from
a mental disorder when he
committed the murder and that the application should have been
granted.
See also
S
v Mphela
1994 (1) SACR (A) at 493f-g;
S
v Matu
2012 (1) SACR 68
(ECB); and
S
v Siko
2010 (2) SACR 406
(ECB).
[9]
Having regard to all the above considerations, we conclude that
the trial court was obliged to act under s 78(2) of the CPA
and refer
the appellant for observation. The conviction, in the circumstances,
cannot stand.
[10] We now turn to
consider the second issue in the appeal – the failure by the
learned regional magistrate to appoint
two assessors in terms of s
93
ter
of the CPA.
3
The issue is whether the court was properly constituted (with one
assessor). What happened is this.
The
appellant pleaded not guilty on 21 January 2008 and elected not to
offer any plea explanation. On 25 January 2008 the appellant’s
legal representative requested
that
‘an assessor may be arranged’. On 17 April 2008, one
assessor, Ms. Susara Aletta Coetzee, was appointed, and the
trial
commenced, and culminated in the appellant’s conviction and
sentence, on the same day.
[11] In terms of s
93
ter
(1)
of the Magistrate Court Act 32 of 1944 a regional court is enjoined
to appoint, and be assisted by,
two
assessors if an accused faces a charge of murder before it, unless
such an accused requests that the trial be proceeded with without
assessors. Once an accused makes his election to be tried with the
assistance of assessors, the peremptory nature of the provisions
of s
93
ter
(1) are
triggered, and the regional court retains no residual discretion to
appoint one assessor. Counsel for the State, Mr.
Mashile
,
contended that it does not appear that the appellant was prejudiced
by failure to appoint two assessors. This argument found favour
in
S
v Naicker
2008 2 SACR 54
(N).
[12]
However,
Naicker
has not been followed by the Gauteng courts
(
S
v Mokalaka
2010
(1) SACR 88
(GNP) and
S
v Du Plessis
2012 (2) SACR 247
(GSJ)).
It
can now be accepted in this court that
failure
to appoint assessors as provided for in s 93
ter
,
where
the requisite jurisdictional facts were present, amounts to an
irregularity
which vitiates the proceedings.
[13]
Apart from the failure by the learned regional magistrate to appoint
two assessors, there are two further procedural issues.
The first is
that there is no indication from the record of any directions given
to the assessor. It appears that after the closing
addresses, the
learned regional magistrate adjourned to deliberate with the
assessor, after which judgment was given. There was
no indication of
any finding by the assessor or which facts were found unanimously if
any or if he overruled her. In short, there
is nothing indicating any
participation by the assessor during the trial or the fact-finding
process.
[14]
In
S v
Gambushe
1997 (1) SACR 638
(N) at 645a-c it was held that any directions given
to the assessors as to their duties and contribution to the trial and
the fact-finding
process, should also be recorded. In the absence of
any record of these, in the present case, it is not possible to make
any assessment
that the assessor performed the duties reposed in her
by the Act. It was remarked in
S
v Jaipal
[2005] ZACC 1
;
2005
(4) SA 581
(CC) para 53 that assessors have considerable power and
could play an important role in the functioning as well as the
legitimacy
of criminal courts.
[15]
The second issue is that the appellant pleaded before the assessor
was sworn in. The Act only requires that assessors be
sworn in before
evidence is led. In our view, it is desirable that, where practically
possible, the assessors should be sworn in,
and be part of the court,
when the plea is entered. Where this is not possible, and the
assessors are sworn in later, as was the
situation in the present
case, the presiding officer should, on record, inform the assessors
of the plea, and where applicable,
a full and detailed exposition of
the accused’s plea explanation. The plea forms part of the
trial, and feeds into the evidence,
which has to be assessed in the
fact-finding process.
[16]
In
S
v M en ‘n Ander
1996 (1) SACR 519
an assessor had been appointed. The matter was
postponed and at the resumption, the original magistrate and the
assessor were not
available. The matter resumed before a different
magistrate without an assessor. On review from the regional
magistrate to whom
the matter had been sent for sentence, it was held
that the appointment of an assessor was a step in the furtherance of
the trial,
and that the case ought to have been resumed either before
the original magistrate and the assessor, and in case of permanent
unavailability,
afresh before another magistrate who would consider
afresh the appointment of assessors and act accordingly.
[17]
Having regard to all the considerations, we conclude that the
irregularities identified in the judgment are such that a miscarriage
of justice occurred, which vitiates the proceedings. The conviction
and sentence should be set aside. The matter should be remitted
to
the regional court for it to act under s 78(2). What happens
thereafter would depend on the results of the observation, and
the
court would proceed in terms of s 78(6). Given the view we take, it
becomes unnecessary to consider the sentence imposed by
the regional
court, which falls off consequentially.
[18]
In the result the following order is made:
The conviction and the
sentence are set aside, subject to paragraph 2 below;
The
matter is remitted to the regional court, which is directed to:
comply
with the provisions of section 93
ter
of the
Magistrate Court Act 32 of
1944;
take
the necessary steps in terms of
section 78(2)
of the
Criminal
Procedure
Act, 51 of 1977
to
refer the appellant for observation and report in terms of
section 79
, and once such
report is available, to proceed in accordance with the report.
_________________________
TM MAKGOKA
JUDGE OF THE HIGH COURT
________________________________
TV
RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
DATE
HEARD : 8 APRIL 2013
JUDGMENT DELIVERED : 18 APRIL 2013
FOR THE APPELLANT : ADV J. VAN
ROOYEN
INSTRUCTED BY : PRETORIA JUSTICE
CENTRE, PRETORIA
FOR THE STATE : ADV K.M. MASHILE
INSTRUCTED BY : DIRECTOR OF PUBLIC
PROSECUTIONS,
PRETORIA
1
The
appellant’s murder conviction, which resulted in him being
declared a State President’s patient, was taken by
the learned
regional magistrate to be a previous conviction, hence he regarded
the appellant as a second offender. This brought
the sentencing
within the purview of s 51 of the Criminal Law Amendment Act 105 of
1977, which prescribes 20 years’ imprisonment,
unless the
court found to exist, substantial and compelling circumstances.
Having found no such circumstances, the appellant
was sentenced to
20 years’ imprisonment. There is doubt whether, in light of
the declaration of the appellant as a State
President’s
patient, the appellant could be regarded as a second offender.
However, we express no firm view on the issue,
as nothing turns on
it, given the view we take of the appeal.
2
When the accused is
charged with murder, culpable homicide, rape, or another charge
which involves serious violence, the accused’s
mental
condition is investigated by a medical superintendent of a
psychiatric mental hospital or a psychiatric appointed by such
medical superintendent at the request of the court, or a clinical
psychologist.
3
This issue was not raised by
either party in their written submissions, but which we raised
during argument. Both counsel agreed
that it is an important
procedural one, which is dispositive of the appeal, and therefore
deserve to be addressed in this judgment.