Brief Summary

Criminal Procedure — Death sentence — Irregularity in trial proceedings — Appellant convicted of murder and sentenced to death with only one assessor present — Minister's appeal initiated to address potential irregularity regarding the absence of a second assessor as required by section 145(2) of the Criminal Procedure Act 51 of 1977 — Court held that the trial judge's failure to summon two assessors constituted a fatal irregularity, vitiating the proceedings and necessitating a reconsideration of the conviction.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was a criminal appeal in the Appellate Division (now the Supreme Court of Appeal) arising from a conviction for murder and the imposition of the death sentence. The proceedings came before the court not as an ordinary appeal noted by the accused, but as a referral initiated by the Minister under section 323 of the Criminal Procedure Act 51 of 1977 (a “Minister’s appeal”), on the basis of doubt concerning the correctness of the conviction.

The parties were Absolom Malinga as the appellant (the convicted person) and The State as respondent. The appeal was heard by Jansen, Joubert, Hoexter, Smalberger JJA and Kumleben AJA, with Kumleben AJA delivering the judgment.

The procedural history was central to how the issue reached the court. The appellant was tried in the Witwatersrand Local Division before Theron J sitting with one assessor, convicted of murder, and sentenced to death, with the trial court finding no extenuating circumstances. Leave to appeal was refused. A subsequent petition to the Chief Justice for leave to appeal was restricted to the finding of no extenuating circumstances and succeeded, but the appeal ultimately failed. During argument in that earlier appeal, the court drew attention to a potential irregularity: the death sentence had been imposed despite only one assessor having been summoned, raising a possible breach of section 145(2). The earlier appeal court could not decide the irregularity because it fell outside the restricted leave, and because there was insufficient information before it.

The general subject matter of the present dispute concerned whether the trial was properly constituted given the death sentence and the assessor requirement, and whether any non-compliance constituted a fatal irregularity justifying the setting aside of the conviction and sentence.

2. Material Facts

It was common cause that the appellant was tried on, among other charges, a count of murder, that he was convicted, and that the court imposed the death sentence after finding no extenuating circumstances. It was also common cause on the record that the trial judge sat with only one assessor.

The indictment and the summary of substantial facts alleged, in essence, that the appellant and the deceased were at the deceased’s home on the day in question; the appellant attacked the deceased and stabbed him several times with a knife in circumstances unknown to the State; and the appellant thereafter stole property from the deceased’s room, including an R1 rifle, forming the basis for additional counts of theft and unlawful possession of a firearm.

For purposes of determining whether there was an irregularity relating to assessors, the court had before it further information beyond the trial record. A letter dated 9 October 1985 from the Judge President of the Transvaal Provincial Division to the Director-General: Justice reported that Theron J had indicated that he had used only one assessor because a second assessor could not be obtained for the hearing of the case. The court treated this as directly bearing on the reason why two assessors were not appointed.

Two affidavits were also placed before the court: one by the prosecutor who appeared at trial (stating it was highly unlikely, given the seriousness of the charge, that she would not have told the judge that assessors were required, though she had no independent recollection), and one by a State Attorney’s office attorney recounting an interview with Theron J (indicating that the judge had no positive recollection of what led to his decision, but that the appointment of one assessor suggested that the prosecutor had informed him that assessors were necessary). The respondent objected to the admissibility of these affidavits, and the court ultimately found it unnecessary to decide their admissibility because it considered the letter and indictment sufficient for the conclusion reached.

3. Legal Issues

The central legal questions were, first, whether—given that the death sentence was imposed—the fact that the trial judge sat with only one assessor amounted to an irregularity under the proviso to section 145(2) of the Criminal Procedure Act 51 of 1977, properly interpreted in light of prior decisions.

Second, the court had to determine, within the framework of a Minister’s appeal under section 323, whether alleged irregularities (as opposed to insufficiency of evidence) could fall within the phrase “correctness of the conviction”, and whether the appeal could therefore be entertained on this basis.

Third, the court had to address a procedural-evidential issue: whether it could have regard, in a Minister’s appeal, to material not recorded at trial, particularly the letter from the Judge President (and, potentially, the affidavits), given that section 323 did not expressly provide a mechanism comparable to certain other appeal provisions.

The dispute primarily concerned questions of law, including statutory interpretation (the peremptory or discretionary nature of the assessor requirement), the legal characterisation of non-compliance as an irregularity, and the procedural competence of placing certain information before the appellate court. It also involved the application of law to fact, namely whether the circumstances apparent at the inception of the trial were such that the judge should have foreseen that the death sentence may be imposed or may have to be imposed, triggering the duty to summon two assessors.

4. Court’s Reasoning

The court began by construing section 323(1) and its function. It accepted that the provision empowers the Minister, in specified circumstances, to refer the record to the Appellate Division where the court must consider the correctness of the conviction as if hearing an appeal by the convicted person. The court emphasised that the manifest purpose is to reduce the risk of a serious miscarriage of justice. On that basis, it rejected any narrow reading that would confine “correctness of the conviction” to the question whether the evidence supported the verdict. It reasoned that a conviction tainted by a fatal irregularity could not properly be described as “correct,” and considered that section 323, read with related provisions, contemplated that an irregularity may constitute the subject matter of such an appeal.

Turning to section 145(2), the court treated the key interpretive question as whether the proviso made the summoning of two assessors mandatory where the offence was one for which the death sentence is competent, and the presiding judge formed the opinion that, on conviction and having regard to the circumstances, the death sentence may be imposed or may have to be imposed. The court reviewed four prior decisions dealing with this question.

From S v Chaane en Andere 1978(2) SA 891 (AD), the court extracted the principle that the proviso does not require assessors in every case where the death sentence is legally competent; rather, the obligation arises when, at the outset, the judge is of the opinion (having regard to the circumstances) that the death sentence may follow upon conviction. In S v Dyantyi 1983(3) SA 532 (AD), the court noted the reliance placed on the summary of substantial facts, and the suggestion that prosecution officials should provide timeous notice to assist the judge in deciding whether assessors should be summoned. In S v Schoba 1985(3) SA 881 (AD), the court noted the fallibility of predicting sentence outcomes from pre-trial information and stressed that the decision ultimately rests with the trial judge; to simply adopt counsel’s opinion would amount to an improper delegation of a statutory responsibility. From Van Willingh v Die Staat (Case No 296/85, AD, 30 May 1986), the court treated the assessor requirements as peremptory, holding that unless the possibility of a death sentence can be discounted in the judge’s opinion at the start of the trial, two assessors must be appointed; and that such an irregularity, if established, is per se a failure of justice vitiating proceedings.

The court then addressed the respondent’s argument that extra-record material, such as the letter, was inadmissible in a Minister’s appeal because section 323 did not provide a mechanism for it. The court reasoned that where an accused raises an irregularity through ordinary appeal processes, the statutory scheme provides mechanisms to place the necessary material before the appellate court, and that a similar need exists in Minister’s appeals which serve the same protective purpose. It observed that section 320 requires trial judges to furnish a report in certain appeal contexts, but does not mention Minister’s appeals, which the court characterised as a probable casus omissus. The court reasoned that since such a report is plainly admissible where required, there was no logical objection to receiving comparable information in a Minister’s appeal. It also reasoned that if the trial judge had stated on record at trial why only one assessor was used, that statement’s admissibility would not be contentious; in principle, a later communication should not be treated differently merely because it was subsequent, oral, or directed to the Judge President. Accordingly, the court held there was no objection to having regard to the contents of the Judge President’s letter.

Applying these principles to the facts, the court regarded the letter as establishing positively the reason for summoning only one assessor (the unavailability of a second) and, implicitly, that the judge considered the case one calling for two assessors. The court also considered that the indictment and summary of substantial facts did not provide assurance that the death sentence would not be imposed, because the murder appeared to have been committed for personal gain (in light of the theft after the stabbing) or otherwise for reasons unknown to the prosecution. On either basis, the court considered that the possibility of a death sentence could not be discounted at the outset. It therefore concluded that the trial judge ought to have appointed two assessors, and that the failure to do so constituted a fatal irregularity.

Given that conclusion, and having found sufficient basis in the letter and indictment, the court considered it unnecessary to decide the admissibility or significance of the two affidavits. It nevertheless reflected more generally (with reference to S v Schoba) on the systemic difficulty of forecasting whether a death sentence will eventuate at the beginning of a trial, the limited utility of a summary of substantial facts as an indicator of sentence-relevant information, and the unsatisfactory nature of relying on counsel’s opinion given the judge’s non-delegable duty.

Finally, the court discussed the statutory history of assessor use (from the 1917 Act, through 1935 amendments, 1955 and 1959 changes, to the 1977 Act), noting that the legislature had (at least in the then-current statutory framework) recognised the merit of appointing two assessors where the death penalty may be imposed. The court also referred to earlier appellate observations about the general advantage of assessors in difficult or serious cases. This historical discussion served to contextualise the legislative intention behind the proviso and the importance the court attached to compliance, though the decision itself rested on the construction of section 145(2) and the established consequences of non-compliance.

5. Outcome and Relief

The appeal was allowed. The Appellate Division set aside the conviction and the sentence on the basis that the trial proceedings were vitiated by a fatal irregularity arising from the failure to summon two assessors in circumstances where the proviso to section 145(2) required it.

The judgment as provided did not record a separate order on costs, and no costs order is reflected in the extracted text.

Cases Cited

S v Chaane en Andere 1978(2) SA 891 (AD). S v Dyantyi 1983(3) SA 532 (AD). S v Schoba 1985(3) SA 881 (AD). Van Willingh v Die Staat (Case No 296/85, Appellate Division, delivered 30 May 1986). The State v Moodie 1961(4) SA 752 (AD). The State v Naidoo 1962(4) SA 348 (AD). R v Matsego and Others 1956(3) SA 411 (AD). R v Mati and Others 1960(1) SA 304 (AD). S v Adriantos en 'n Ander 1965(3) SA 436 (AD).

Legislation Cited

Criminal Procedure Act 51 of 1977, sections 144(3), 145(2), 316(1), 316(3), 316(4), 316(6), 317, 319, 320, 322, and 323 (including section 323(1) and section 323(4) as discussed). Criminal Procedure and Evidence Act 31 of 1917, section 216(1). Act 46 of 1935, section 36 (introducing section 216(2) and its proviso). Criminal Procedure Act 56 of 1955, section 109(2). Act 75 of 1959, section 5.

Rules of Court Cited

No rules of court were cited in the provided text.

Held

The court held that a Minister’s appeal under section 323 of the Criminal Procedure Act 51 of 1977 is not confined to challenges based on evidential sufficiency and may encompass a challenge to the correctness of a conviction on the basis of a fatal irregularity.

It further held that, on the material before it, the trial judge was obliged by the proviso to section 145(2) to summon two assessors, and that the failure to do so—followed by the imposition of the death sentence—constituted a fatal irregularity vitiating the proceedings.

It accordingly held that the conviction and sentence could not stand and must be set aside.

LEGAL PRINCIPLES

A conviction is not “correct” for purposes of section 323(1) of the Criminal Procedure Act 51 of 1977 if the proceedings were tainted by a fatal irregularity; section 323 is capable of embracing irregularity-based challenges and is not limited to cases where the evidence does not support the verdict.

Under the proviso to section 145(2), the appointment of two assessors is peremptory where the offence is one for which the death sentence is competent and the presiding judge is of the opinion, at the inception of the trial and having regard to the circumstances, that the death sentence may be imposed or may have to be imposed. The appellate enquiry focuses on the trial judge’s opinion regarding that possibility at the start of the trial, as informed by the material properly available at that stage.

Non-compliance with the peremptory assessor requirement, where it applies, constitutes an irregularity of such a kind that it amounts per se to a failure of justice and vitiates the proceedings, with the result that the conviction and sentence are liable to be set aside.

In determining whether such an irregularity occurred, the appellate court may have regard to reliable information explaining the trial judge’s constitution of the court (such as an authoritative communication relaying the trial judge’s reason for not appointing a second assessor), particularly where the issue could not practically be ventilated on the trial record and where the protective purpose of the appeal mechanism would otherwise be undermined.

S v Malinga (388/86) [1987] ZASCA 42 (12 May 1987)