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[2009] ZAGPJHC 94
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Du Plessis v S (A370/2007) [2009] ZAGPJHC 94; 2012 (2) SACR 247 (GSJ) (3 June 2009)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
:
A370/2007
DATE
:
03.06.2009
In the matter between:
JEROME DU
PLESSIS
........................................................................
Appellant
and
THE
STATE
.....................................................................................
Respondent
______________________________________________________________
JUDGMENT
______________________________________________________________
C. J. CLAASSEN
J
:
This is an appeal
by Jerome du Plessis who was accused 1 in the court
a
quo
against a conviction on one count of murder as read with section 51
of Act 105 of 1997. There was a second accused Mr Albert
Nel who is
also appealing against the conviction and sentence passed. The
particular Magistrate who presided in the Regional
Court at the time
was a Mr M. Z. Machowane. He convicted both appellants and sentenced
them to 10 years’ imprisonment each.
Mr Machowane granted
leave to appeal against both convictions and sentences to this
court. The appellant’s counsel submitted
supplementary heads
of argument, rather belatedly, and this was served upon the
Magistrate in the court
a
quo
on 20 August 2008. However, no response was obtained from the
Magistrate in reply thereto. There is also an application for the
condonation of the late filing of these documents. It is to be
condoned, as the State has no opposition thereto.
The point raised
in the supplementary heads of argument is a technical one in the
sense that the court
a
quo
failed to comply with the provisions of section 93ter (1) of the
Magistrate’s Court Act 32 of 1944. The relevant provisions
read as follows:
“
93ter (1) The
Judicial officer presiding at any trial may, if he deems it expedient
for the administration of justice –
(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
pro
per
se
ntence,
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 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.
2 (a) In considering
whether summoning assessors under (1) would be expedient for the
administration of justice, the judicial officer
shall take into
account –
(i) the cultural and
social environment from which the accused originates;
(ii) the educational
background of the accused;
the nature and the
seriousness of the offence of which the accused stands accused or
has been convicted;
the extent or probable
extent of the punishment to which the accused will be exposed upon
conviction, or is exposed, as the case
may be;
any
other matter or circumstance which he may deem to be indicative of
the desirability of summoning an assessor or assessors
and he may
question the accused in relation to the matters referred to in this
paragraph.”
Section 93ter (3)
provides for an oath to be taken by the assessors as prescribed in
section 93ter (5). More importantly section
93ter (3) provides
expressly that once the assessors have been so invited and sworn in,
they become members of the court subject
to certain provisions.
These provisions prescribe what their status would be in regard to
the resolution of matters of law and
matters
of fact. In particular subsection 3(d) states the following:
“
Upon all matters
of fact the decision or finding of the majority of the members of the
court shall be the decision or finding of
the court, except when only
one assessor sits with the presiding judicial officer in which case
the decision or finding of such
judicial officer shall be the
decision or finding of the court if there is a difference of
opinion.”
Subsections (10)
and (11) deal with the situation where an assessor is to be recused
and when an assessor is no longer able to continue
with sitting as
much.
The facts in the
present
matter are common cause as far as they relate to the question of the
appointment of assessors. The record clearly indicates
that no
assessors were appointed either before the evidence commenced or
thereafter.
The record also
discloses no indication that any assessors were sworn in or given
directions by the Magistrate as to what their
functions were when
acting as assessors.
1
The record further contains no indication that the judgment of the
court
a
quo
was either unanimous or a decision of the majority of the court. All
of this leads one to the inescapable conclusion that the
magistrate
never implemented the provisions of section 93ter (1). The question
then arises what effect such failure has on the
legality of the
trial.
A comparable
set of facts arose in the case of
S
v Naicker
2008 (2) SACR 54
(NPD). That case was presided over by Nsimang J and
Ngubane AJ. In that case it was also common cause between the State
and the
defence that the appellant was convicted and sentenced
without assessors being appointed, notwithstanding the fact that the
appellant
was arraigned on a charge of murder, nor was he approached
by the Magistrate to enquire whether or not he required assessors to
be appointed. In that case it was conceded by counsel for the State
that the failure constituted an irregularity. The court held
at page
57i as follows:
“
There
can be no doubt that the provisions of the proviso to S 93ter (1)(a)
are couched in peremptory terms and therefore that failure
by the
court
a
quo
to apply the said provisions in the situation in which the requisite
jurisdictional facts were present amounted to an irregularity.
The
issue to be determined by this court is the effect which that
irregularity had on the integrity of the proceedings.”
With reference to
the two well-known types of irregularities that one finds in
criminal proceedings,
2
as set out by Holmes JA, the court came to the conclusion that such
irregularity did not render the proceedings
per
se
a failure of justice. It held that such failure fell into the first
category, and that the irregularity was not so fundamental
that it
in fact amounted to a
per
se
failure of justice. In this regard it was held at page 61h as
follows:
“
Having
regard to the purpose and 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 s
93ter (1)(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.”
The court there
after
continued with an enquiry to establish whether a reasonable court
properly directing itself would inevitably have convicted in
spite
of the irregularity. It separated the bad from the good and
considered the merits of the case including any findings as
to the
credibility of witnesses. In particular the court concluded that due
to the fact that the judicial officer and the accused
belonged to
the same racial group, the irregularity could not have prejudiced
the appellant during the trial and that no failure
of justice
resulted. The question arises whether this decision was correct.
The learned judges
in the
Naicker
case relied on an analysis of the provisions of section 93ter (2),
which governs the considerations to be taken into account
when
deciding whether or not assessors would be appointed. In that regard
Hurt J in
S
v Gambushe
1997 (1) SACR 639
(N) at 642h - i held as follows:
“
As I understand
the object of these provisions, it was to bridge what was conceived
to be the cultural gap between the magistrates,
on the one hand, and
the large number of intellectually unsophisticated and uneducated
accused persons who come to trial before
them, on the other hand.
What was contemplated was that the presence of the assessors would
make the trial of the accused more
of a ‘trial by peers’
and constitute some protection against the conduct or reactions of
the witnesses and the accused
being judged by incorrect yardsticks
not applicable to those of the environment and community to which
those witnesses and the
accused belong.”
With respect, I
wish to associate myself with the interpretation of Hurt J as to the
underlying need for the provisions set out
in section 93ter (2).
However, that is not the only consideration that must be taken into
account when considering the effect of
a failure to comply with the
provisions of section 93ter (1).
As indicated above the proviso
specifically enjoins in peremptory terms (“shall”) a
magistrate hearing a murder case
to appoint assessors, unless the
necessity to do so is waived by the particular accused. The import
of this proviso, to my mind,
is that a court does not have a
discretion to do without assessors in a murder trial in the lower
courts, unless a communication
with the accused or his legal
representative indicates that the court is relieved of the duty to
appoint such assessors.
In my view, there
is a very good reason why the Legislature had couched the provision
in such terms. Assessors in a murder trial
in the lower courts are
not only there to assist the magistrate in bridging any cultural or
educational gaps that may exist between
the court and the accused.
In terms of subsection (3) assessors are also members of the court
entitled to decide issues of fact
and “give a true verdict”.
An accused in a murder trial in the magistrates’ courts must
therefore have the
opportunity to make an informed election as to
whether he wants the decision making forum to consist of one
individual or more,
irrespective of whether or not cultural
differences may exist.
I pause
to mention at this stage that the history of the appointment of
assessors came considerably to the fore after the abolition of
jury
trials. In South Africa up until 1969 jury trials were permitted at
the election of an accused. Jury trials were allowed
in order to
cater for the needs of accused persons if they desired to be tried
by their peers. Once jury trials were abolished,
3
alternative measures were necessary to cater for this need. The
appointment of assessors became the only way in which any semblance
of being tried by peers could be established.
Problems usually
arise when a member of the presiding forum died or became incapable
of continuing further with the trial. The
need to overcome this
deficiency was already exposed in 1954 in the case of
Rex
v Price
1955 (1) SA 219
(A). In that case it was obligatory due to the
demand of certain statutory requirements to appoint two assessors.
One of the
assessors died during the course of the trial. The
defence made an application for an order that the case should
proceed before
the judge and the remaining assessor. This
application was supported by both counsel for the Crown and the
defence and so the
judge granted the application.
Subsequently,
after conviction and sentence, one of the accused appealed by way of
a special entry raising the question whether
the court
a
quo
had power to order the trial to continue in the absence of one of
two appointed assessors despite the agreement of counsel for
the
State and the defence in that regard. On appeal the court held that
after the death of the first assessor the court
a
quo
was not properly constituted and consequently its verdict as well as
the sentence were irregularities which could not be regularised
by
the agreement of an accused person.
4
Greenberg JA stated the following at 273E – G:
“
In
Rex
v Gluck
,
1923 A.D. 140
, the Court appears to have considered it almost
axiomatic that, in a Court constituting of a president and two
assessors, who were
members of the court, the two assessors in the
absence of the president, did not form
a
quo
rum
and that their decision was not one of a Court properly constituted;
it is also clear from
Green
v Fitzgerald & Others
1914 A.D. 65
, that where a certain number of Judges is necessary to
form
a
quo
rum,
the Court is not properly constituted if its number falls short of
that quorum, even though that number would be enough to
constitute a
majority of the Court. In the present case, the quorum clearly was
three members … and the fact that, in such
a
quo
rum,
the decision of two would be an effective majority does not cure the
deficiency in its quorum.”
Greenberg JA concluded at 224C as
follows:
“
Prima
facie
when a decision is entrusted to a tribunal consisting of more than
one person, every member of that tribunal should take part in
the
consideration of the decision. In
Ras
Beharilhal and Others v The King Emperor
150 L.T.R.3 which was followed in this Court in
Rex
v Silber
1940 AD 187
, the Privy Council set aside the verdict of a jury
because one of its members did not understand the language in which
the proceedings
or a material part of them were conducted. Lord Atkin
said that the Board thought
‘
that the effect of
the incompetence of a juror is to deny to the accused an essential
part of the protection afforded to him by
law and that the result of
the trial in the present case was a clear miscarriage of justice.’
(See
also
Silber’s
case at pp 193 – 194). What was denied to the accused in these
cases was his right to a consideration of his case by every
member of
the fact-finding tribunal.”
The importance of
Rex
v Price
is that it was decided on facts where two assessors were essential
5
for a particular trial, much as in the present case where the Act
demands the appointment of two assessors in the case of a murder
trial.
Rex
v Price
has been followed in
S
v Malindi and Others
1990 (1) SA 962
(AD) where Corbett CJ at 970G had the following to
say:
“
An
assessor appointed in terms of section 145 (of the
Criminal Procedure
Act 51 of 1977
) is a member of the Court and participates in all
decisions of the Court on questions of facts. Where the Judge sits
with two assessors
the decision of the majority (on factual
questions) constitutes a decision of the Court. Where, on the other
hand, the Judge sits
with only one assessor, then in the event of a
difference of opinion the decision of the Judge prevails
(s 145
(4)).
An accused person has a right to have his case considered by every
member of the fact-finding tribunal, (see
R
v Price
1955 (1) SA 219
(A) at 224D – E) and it is especially important
that this should be so in cases covered by the proviso to
s 145
(2).”
The proviso
referred to above in
section 145
(2) dealt with the imposition of
the death sentence in cases of murder trials, which was subsequently
deleted after the Constitutional
Court declared the death sentence
unconstitutional. Be that as it may, it is still important to an
accused that assessors be
part of the decision making and
fact-finding process in a lower court where he/she is subjected to a
murder trial.
In the lower
courts the highest jurisdiction afforded to a Regional Court is in
fact to hear a murder trial and one can therefore
understand why an
accused would want to have a fact-finding tribunal consisting of
more than one presiding officer. The problem
that I have with
Naicker’s
case aforesaid, is that the learned judges never considered the
importance of an accused’s right to have assessors as part
of
the fact-finding process. It seems to me as if the court restricted
itself to considering whether a failure of justice occurred
based
purely on a consideration of the fact that the language and racial
group of the court and the accused, were similar. That,
to my mind,
is not sufficient to decide whether or not a miscarriage of justice
took place.
In the present
case before us, there is no indication in the record that the
accused was ever asked whether he wanted to deny
himself the right
to have a fact-finding tribunal consisting of more than one
presiding officer. That being the case, I am of
the view that the
Appeal Court cases of
Rex
v Price
and
S
v Malindi
constitute authority for the proposition that failure to comply with
section 93ter
(1) results in a
per
se
irregularity which cannot be waived or condoned by either the
accused or his legal representative and thus constitutes a failure
of justice.
It would seem to
me that the weight of authority is in line with the aforesaid
conclusion. A similar conclusion was arrived at
by King and Farlam
JJ in
S
v Daniels and Another
1997 (2) SACR 531.
In that case the trial was commenced before a
magistrate and two assessors. One of the assessors then absconded.
The magistrate
continued with the trial with one assessor. Farlam J
held at 532I – J as follows:
“
I cannot agree
with the magistrate’s contention that the accused were not
prejudiced because there was only one assessor,
with the result that
the magistrate’s finding on the facts would in any event have
been the finding of the court. This overlooks
the fact that the
assessor, if she had disagreed with the magistrate on the facts,
might have been able to persuade the magistrate
that her view was
correct.”
In that matter the accused also
consented to the defective procedure of continuing with one assessor
only. Farlam J at 533D also
rejected the contention that such a
waiver was valid and stated that such consent did not cure the
defect in the proceedings.
As a result, the convictions and
sentences were set aside on the basis that a miscarriage of justice
occurred.
We,
therefore, are of the view that the decision in
S
v Naicker
was wrongly decided. The court in that case never took cognisance of
the Appeal Court cases laying down the importance of a right
to have
a fact-finding tribunal consisting of more than one member. This
requirement is independent of any benefit contemplated
in subsection
(3).
Finally it may be
helpful to lay down some guidelines for magistrates dealing with
murder trials in the Regional Court. Care should
be taken to ensure
that the record reflects clearly whether or not
section 93ter
(1)
had been complied with. The record should show that the magistrate
entered into discussion with the accused and/or the accused’s
legal representatives when the entitlement to the appointment of
assessors is waived. Such waiver should be recorded in order
for
courts of appeal to be assured that the provisions of
section 93ter
had been complied with.
In this regard I
agree with what was stated in
S
v Gambushe
1997 (1) SACR 68
(N) at 645a – c where it was stated that any
directions given to the assessors by the magistrate after appointing
them
as to their duties and/or their contribution to the trial and
the fact-finding process, should also be recorded. The provisions
must be complied with because assessors play such an important role
in the conduct of a trial. It was said in
S
v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC) at paragraph
[53]
that assessors have
considerable power and could play an important role in the
functioning as well as the legitimacy of criminal
courts.
We,
therefore,
conclude that the failure to comply with
section 93ter
(1) rendered
the trial in the court
a
quo
a failure of justice.
There is, however,
a further matter which is of concern and that is the conduct of the
Regional Court magistrate Mr Machowane.
When perusing the record, it
appeared that Mr Machowane upon completion of the testimony of
accused 1, embarked upon a lengthy
series of questions comprising no
less than ten pages. These were not questions to get clarity of
certain unclear aspects but
constituted cross-examination
per
se
.
Thereafter, when accused 2 testified and upon completion of his
evidence, the magistrate proceeded to do the same by cross-examining
accused 2 for another thirteen pages of questions and answers. In
all, his cross-examination of the two accused amounted to 23
pages
of impermissible questions. It has been said on many occasions that
magistrates and other presiding judicial officers are
not to utilise
their position to show partiality by cross-examining accused
persons. The court is there to sit as an impartial
arbitrator in
deciding cases without fear or favour. Favouring the State by
cross-examining an accused can only lead to the administration
of
justice falling into disrepute and a perception of bias on the part
of the presiding officer.
It seems to me
that this is a case where the conduct of Mr Machowane should be
taken further in order to remind him of his duties
as an impartial
presiding officer in criminal trials. I am therefore of the view
that it would be advisable for this judgment
to be laid before the
Magistrate’s Commission for their comment. Finally, I make the
following order:
1. Condonation for the late filing of
the notices of appeal is granted.
2. The convictions and sentences
imposed by the lower court are set aside.
3. This judgment is
to be placed before the Magistrate’s Commission.
THUS DATED AND SIGNED AT JOHANNESBURG
THIS DAY OF JUNE 2011.
_________
_______________
C.J.CLAASSEN
JUDGE OF THE HIGH COURT
I agree:
__________________________
P/P
1
See
S
v Maphanga
[2001] 4 All SA 657
(W)
2
See
S
v Moodie
1961 (4) SA 752
(A) at 758f – g.
3
See the
Abolition
of Jury’s Act 34 of 1969.
4
See
R
v Price
,
supra at 223D
5
See
R
v Price
supra
at 226B – C