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[2008] ZAWCHC 279
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Sass v S (A411/2008) [2008] ZAWCHC 279 (31 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
A411/2008
DATE
:
31
OCTOBER 2008
In
the matter between:
K
SASS
versus
THE
STATE
JUDGMENT
ROUX,
AJ
:
The
appelfant was charged in the Regional Court of the Cape, sitting in
Paarl, with the murder of one Hendrik Isaacs. The appellant
was
represented at the trial by an attorney and he pleaded not guilty to
the charge. On 24 July of this year he was convicted of
murder and
sentenced lo an effective term of ten years imprisonment. He was also
declared unfit to possess a firearm.
This
Court granted the appellant Eeave to appeal against the conviction
and the sentence. The first ground of appeal raised by
Mr
De Villiers
,
who appeared for the appellant before us, but who did not represent
the appellant in the trial, is that the magistrate had acted
irregularly in that she had failed to comply with Section 93 ter (1)
of the Magistrates' Courts Act 32 of 1944 (the Act). This
section
reads as follows:-
"1.
The judicial officer presiding at any trial may, if he deems it
expedient for the administration of justice -
before
any evidence has been led; or
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
r
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 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." (emphasis added)
The
magistrate was not assisted by assessors in the trial. It is clear
from the wording of the aforestated section that it is only
where the
accused specifically requests the magistrate that assessors not be
summoned, that the trial may be proceeded with without
assessors. It
does not appear from the record that any such request was ever made
by the appellant or his attorney in this case.
In fact, it would
appear that the subject was never broached. In the circumstances, the
State and the defence are
ad
idem
that
the failure by the magistrate to have summoned assessors constituted
an irregularity.
Mr
De Villiers
submitted that since the aforestated provisions of the Act are
peremptory - "the judicial officer shall" - the conviction
cannot stand.
Ms
Cook
,
who appeared for the State, submitted that noncompliance with
the aforestated peremptory provisions do not necessarily amount
to a
failure of justice. She argued that it must be established whether
a reasonable Court, sitting with assessors, would not
inevitably have
convicted the accused.
The
consequences of non-compliance with section 93 ter (1) of the Act has
been considered by our Courts. In
S
v Khambule
.
1999(2) SACR 365 (O), it was held that non-compliance with the
section is not only irregular but also constitutes a failure of
justice.
In
S
v Titus
.
2005(2) SACR 204 (NCD), the Court came to a similar conclusion. In
paragraph 14 of that judgment the following was said by Tlaletsi
J
(Lacock J concurring):-
"In
my view the Act prescribes the manner in which a court should be
constituted. Non-compliance with the peremptory provisions
of how a
court should be constituted in murder trials is
per
se
grossly
irregular. One need not go further and check whether such an
irregularity amounts to a failure of justice, or that, given
the
circumstances of the case and the seriousness of the offence, it
would not be in the interests of justice to upset the conviction.
The
fact that the Legislature makes it incompetent for the magistrate to
preside alone under certain circumstances, cannot
be made
competent by the fact that there is overwhelming evidence that the
appelfant is guilty of the offence of which he has
been convicted."
In
S
v Naicker
,
2008(2) SACR 54 (NPD), a different view was adopted. The Natal Court
held that although non-compliance with the peremptory terms
of s 93
ter (1) amounts to an irregufarity, it does not necessarily follow
that it amounts to a failure of justice; the issue to
be determined
in each case is the effect the irregularity had on the integrity of
the proceedings.
In
my view it would be undesirable to conjecture in each case on the
effect the absence of assessors had on the proceedings. Assessors
fulfil an important function and have considerable power. I
respectfully associate myself with the remarks made by Tlaletsi J and
Lacock J in the Titus case, quoted above. See also
S
v Jaipal
,
2005(1) SACR 215 (CC) and
S
v Mitshama and Another
.
2000(2) SACR 181 (WLD).
I
would therefore order that the conviction and sentence be
SET
ASIDE
and it be left to the Director of Public Prosecutions to decide on
what course to follow. The appellant should understand that
he may be
tried again.
ROUX,
J
I
agree.
MEER,
J