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[2008] ZAWCHC 244
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Lewis v S (A11/2008) [2008] ZAWCHC 244 (15 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A11/2008
DATE
:
15
AUGUST 2008
In
the matter between:
CLIVE
DESMOND LEWIS
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
OLIVIER.
A J
On
8 December 2003, the appellant, Mr Clive Desmond Lewis, was convicted
on one count of housebreaking with the intent to steal
and theft. He
was sentenced to three years imprisonment.
The
appellant now appeals both against his conviction and sentence. I
pause to mention that the appellant only applied on 9 February
2007
for leave to appeal.
This
sentence has not yet been served served, at least so we are informed.
Mr
Maartens, who appeared on behalf of the respondent, pointed out in
his heads of argument, and I may add quite correctly, that
the
record reflects that the trial commenced on 27 August 2003 and that
the magistrate was assisted by two assessors. On 16 October
2003 the
complainant, Mr Thiart, as well as the appellant, testified. On 23
October 2003, and after the conclusion of the evidence
of the second
accused, Mr Esso, the matter stood recorded that the proceedings on
23 October took place in the absence of both
assessors.
There
was no objection to their absence from either the State or the legal
representatives representing both accused. It was then
submitted on
behalf of the first accused, the appellant, that there was no
prejudice to him, whilst the representative of the
second accused
left matters in the hand of the Court. The magistrate suggested that
the two assessors should listen to the record,
though he
acknowledged that they had not had the opportunity to observe the
demeanour of accused No 2 when he gave his evidence-Mr
Maartens
quite correctly pointed out that the continuation of the proceedings
in the absence of the assessors constituted an
irreparable and fatat
irregularity. He referred us to
Krieqler
and Kruqer, Hiemstra, Suid Afrikaans Straforoses. 6
th
Edition, at 375
and the cases of
S
v Daniels and Another. 1997(2)
SACR
532
(C),
S v
Petersen
and Another. 1998^2) SACR 311
(C),
S
v Kleinbooi. 1999(1) SACR 177
(C).
and
S v Mngeni 2001(21 SACR 20 (EC)
.
In
Rex
v Price. 1955(1) SALR 219 (A). Greenberg, J A
held as follows, at 224C - E:-
"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
Behari Lai and Others v The King Emperor,
150 LTR 3
.
which was followed in this court in
Rex
v Silver.
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
Super's
case at
page
193 to 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."
Greenberg.
J A
held
that
the Court had not been properly constituted and that its proceedings
in convicting the appellant amounted to an irregularity,
at
226A
.
Corbett.
C J
.
in
S
v Malindi. 1990(1) SALR 962 (A) held at 970G - J
as fotlows:-
"An
assessor appointed in terms of section 145 is a member of the court
and participates in all decisions of the Court on
question of fact.
Where the Judge sits with two assessors, the decision of the
majority on factual questions constitutes the
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 (section 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) SALR 219 (A) at 2240 - E
V
and it is essentially important that this should be so in cases
covered by the proviso to section 145(2). See also
R
v Mati and Others. 1960(1) SALR 304 (A) at 306F. S v Malinaa (supra)
at 498I to J. S v Gaeba and Others. 1989(3) SALR 712 (A)
at 718A -
C
,
and, as was pointed out by
Grosskopf,
J A inGoeba's case supra at 718B
-
C
,
although
section 147(1) of the Act does permit in certain circumstances the
continuation of a trial without one of the assessors
even, in cases
covered by the proviso to section 145(2), these circumstances should
not extend beyond those clearly falling within
the language of
section 147(1)."
Section
93
ter
(5)
of the Magistrate's Court Act 32 of 1944 provides that the
provisions of
section 147
of the
Criminal Procedure Act 51 of 1977
apply
mutatis
mutandis
where
an assessor sitting with a magistrate in a criminal trial dies or
becomes, in the magistrate's opinion, incapable of continuing
to act
as an assessor.
Section 147
provides as follows:-
"(1)
If an assessor dies or, in the opinion of the presiding Judge
becomes unable to act as an assessor at any time
during a
trial, the presiding Judge may direct
(a)
that the trial proceed before the
remaining
member or members of the court, or
(b)
that the trial start
de
novo,
and
for that purpose summon an assessor in the place of the assessor who
has died or has become unable to act as an assessor.
(c)
where the presiding Judge acts under
section 1(b)
, the plea already
recorded shall stand."
The
above factual situation is not covered by
section 145
and it did not
apply. It follows that the magistrate did not have the power to
dispense with the presence of the assessors and
to proceed without
them.
In
my view the appellant's conviction and sentence should be set aside.
This Court is entitled and obliged to do so in terms of
the
provisions of
section 304(4)
of the
Criminal Procedure Act 51 of
1977
.
Farlam,
J
.
as he then was, pointed out in
S
v Daniels and Another. 1997(2) SACR 531 (C) at 533H
that it would not be appropriate for this Court to order that a
trial
de
novo
should
take place. It is for the Director of Public Prosecutions to
decide whether the accused should be prosecuted.
For
the above reasons, I wouid
SET
ASIDE THE CONVICTION AND SENTENCE
of the appellant.
OLIVER, AJ
I agree and it is so ordered
MOOSA, J