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[2024] ZAECMHC 32
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Dlephu v S (CA&R14/2023) [2024] ZAECMHC 32 (17 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION: MTHATHA
CASE
NO CA&R14/2023
In
the matter between
MONGEZI
DLEPHU
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL
JUDGMENT
NORMAN
J
:
Introduction
[1]
This is an appeal against both conviction and sentence imposed by the
regional court
magistrate, sitting in Sterkspruit on 24 January
2023. The appellant is before this court having been granted
leave to appeal
by the regional court.
[2]
The appellant was arraigned on a charge of murder read with the
provisions of
section 51
(1) of the
Criminal Law
Amendment Act 105 of 1997
. The state alleged that the
appellant was guilty of premeditated murder in that on 22 December
2019 at or near
Sterkspruit, he did unlawfully and
intentionally kill one Thando Libazi , a male person, by shooting him
with a firearm. Appellant
pleaded not guilty. Prior to the
commencement of the trial the appellant, who was legally
represented, indicated that he
required the presence of
assessors. Two assessors were indeed appointed and constituted the
court with the regional court magistrate.
[3]
During the proceedings and when the appellant was under cross –
examination,
one of the assessors recused herself . The
appellant insisted on having two assessors and did not consent
to the court proceeding
with one assessor. The regional court
magistrate decided that the trial would continue with one assessor
and it did.
I shall return to this issue later in this
judgment.
[4]
At the end of the trial the regional court magistrate was satisfied
that the state
had proved beyond reasonable doubt that the murder was
premeditated and convicted the appellant accordingly. He
sentenced
the appellant to life imprisonment.
[5]
Apart from attacking the conviction and sentence on several grounds,
the appellant
raised herein irregularities committed by the trial
court. He contends that the irregularities were so gross that they
vitiated
the proceedings.
[6]
Mr Jikwana appeared for the appellant and Mr Methuso for the
respondent.
Grounds
of appeal
[7]
Mr Jikwana submitted that there were several irregularities in the
proceedings which make
it difficult for both the conviction and the
sentence to stand. He submitted that those were ,
inter
alia
, the different names of assessors on record , failure of the
regional court magistrate to have the assessors take an oath before
the commencement of trial, the interaction between the prosecutor and
one assessor outside court, and the regional court magistrate’s
decision to proceed with one assessor despite the appellant’s
insistence that he elected to have two assessors, after one
of the
assessors was recused from the proceedings ; and the
misstatement by the court that there was agreement between parties
that the proceedings were to continue with one assessor.
[8]
He further submitted that the trial court committed several
misdirections which led to
the wrong conclusion that the appellant
was guilty of premeditated murder. The trial court erred in
finding that the state
proved its case beyond reasonable doubt ; that
it received the evidence of the eye witness , Mr August , without
administering
the oath or affirmation; and failed to consider all the
evidence in its totality prior to making a finding of guilt. Instead
the
trial court was of the view that the appellant had to convince it
and thus placed an onus on the appellant to disprove the state’s
case. He submitted that the state did not put its case to the
appellant. He relied on ,
inter alia
,
S
v Molimi
[1]
that:
‘
[t]he
right of the accused at all important stages to know the ambit of the
case [she or he] has to meet goes to the heart of a
fair trial.’
[9]
He criticized the findings of
premeditation by the trial court on the basis that in
S
v PM
[2]
that ‘premeditated’ was found to mean something done
deliberately after rationally considering the timing or method
of so
doing, calculated to increase the likelihood of success, or to evade
detection or apprehension. ‘Planned’
was found to
mean a reference to : ‘.. a scheme , , design or method of
acting , doing,proceeding or making, which is developed
in advance as
a process, calculated to optimally achieve a goal. He also found that
the trial court erred in sentencing the appellant
to life
imprisonment. He argued that having regard to the misdirections and
the irregularities this court should interfere with
the both the
conviction and sentence.
[10]
Mr Methuso , on the other hand , attributed the
different names of assessors to transcription errors. He
relied in
this regard on
Tuta
v The State
[3]
He conceded , correctly , in my view that , no steps were
taken by the state to have those alleged errors corrected
by the
presiding officer. He also accepted that this court , on appeal, is
enjoined to consider the record as it stands.
He submitted that
the appellant relied on both putative private defence and self-
defence, interchangeably. He relied
on
Steyn
v S
[4]
, as the leading authority on private defence, that when an accused
raises a plea of private defence, the court’s initial
enquiry
is to determine the lawfulness or otherwise of the accused’s
conduct and that, if found to be lawful, an acquittal
should follow.
He submitted that the fact that there were differences in the
observations of the state witnesses does
not mean that their
evidence was untruthful or unreliable . In this regard he relied on
S
v Sithole
[5]
.
[11]
He complained that the grounds of appeal based on the irregularities
about assessors were not raised in
the notice of appeal and therefore
they should not carry any weight. He submitted that the trial
court was well within its
rights to decide to proceed with one
assessor because the presiding officer had a discretion and not the
appellant. He submitted
that because the trial was at an
advanced stage it was in the interests of justice to continue with
the trial instead of starting
it
de novo.
In this regard
he relied on
Jekev
S
[6]
.
He
submitted that there is no legal requirement that an assessors’
oath should be reflected on record because assessors are
not
witnesses but members of the court.
[12]
He submitted that the state proved the guilt of the appellant beyond
reasonable doubt. On sentence
he relied on ,
inter
alia
,
S
v Vilakazi
[7]
,
that
when the crime is deserving of a substantial period of imprisonment
the questions of whether the accused is married or not
, has children
or not , are in themselves immaterial and may constitute flimsy
grounds that Supreme Court of Appeal in
Malgas
said should be avoided.
Discussion
Irregularities
regarding assessors
Identities
of the assessors
[13]
The trial court record reveals that on 6 September 2021, the trial
commenced with two assessors,
Ms Khobeni and Ms Kambasela. These
names appear on the record. However, in the regional court
magistrate’s judgment
the court referred to Ms Qcube and Ms
Canga as having sat as assessors. It is not clear from the record as
to what are the actual
names of the assessors that constituted the
court and the reason why the regional court magistrate referred to
names that are different
from those that appeared at the
commencement of the trial.
Unsworn
assessors
[14]
This becomes even more concerning when one deals with the
uncontroverted allegation that the assessors were
not sworn in.
Mr Jikwana submitted that the two assessors were not sworn in.
He submitted that it is accepted
that the assessors do not get sworn
in court as they are not witnesses. However, he submitted that when
the trial commenced the
regional court magistrate was obliged to
place on record the fact that the assessors had been sworn in.
Mr Methuso
submitted that because ordinarily the swearing in of
assessors takes place in chambers , it was not necessary to place
that on
record.
[15]
Section 93
ter
of the Magistrate’s Court Act 32 of 1944
provides:
‘
93
ter Magistrate may be assisted by assessors
(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 proper sentence,
as the case may be, to sit with him as assessors: Provided that
if an accused is standing trial
in any regional court on a
charge of murder, whether together with other charges oraccused or
not, the judicial officer shall at
that trial be assisted by
two assessors unless such an accused requests that the trial be
proceeded without assessors
whereupon the judicial officer may
in his discretion summon one or two assessors to assist him.”
(2)
...
(3)
Before the
trial or the imposition of punishment, as the case may be, the said
judicial officer shall administer an oath to
the person or
persons whom he has so called to his assistance that he or they will
give a true verdict or a considered opinion,
as the case may
be,according to the evidence upon the issues to be tried or regarding
the punishment, as the case may be, and thereupon
he or they shall be
a member or members of the court subject to the following
provisions...’
[16]
The above quoted provisions make the administering of an oath
peremptory. If the oath was not administered
to the assessors it
follows that they were not members of the court as envisaged in
section 93
ter
(3). The trial court is a court of
record. Every step that is taken and sanctioned by law , such as the
swearing in
of assessors must be recorded otherwise how else will it
be evident that such oath was administered? Those provisions
enjoined
the judicial officer, on the facts of this case, to
administer the oath before the commencement of the trial.
[17]
Once appointed, an assessor becomes a member of
the court and before he or she hears any evidence, he or
she has to
take an oath or make affirmation, administered by the trial judge to
give true verdict upon issues to be tried, on the
evidence placed
before him or her. It affirms the principle that an assessor who
takes an oath or affirmation shall become a member
of the court and
thus participate in all decisions of the court.
[8]
[18]
An inescapable conclusion is that a failure to administer an oath as
provided , constitutes an irregularity
that , in my view, is
not capable of being remedied.
Interactions
between the prosecutor and the assessors outside court
[19]
On 21 June 2022 the prosecutor began by addressing
the court as follows:
‘
This
matter served before you, your Worship. We could not proceed with the
matter due to the absence of the assessors. Ms Khambasela
is not
available and she said when I called her that Ms Qcube was unable to
come because of the problem that she has with her child.
Both assessors are
present today. Now I have had a conversation with Ms Kambasela in my
office and I have been able to establish
that Ms Kambasela is still
available to proceed. Ms. Qcube is unfortunately, no longer available
to proceed with the matter. She
is today here to bring an application
for her recusal on two grounds. The first ground is that she is now
looking after a one month
old baby. She has been trying to get people
to assist her with looking after the baby but because the child is
one month old and……..[indistinct].
The second ground is
that Ms Qcube had advised me that in between the postponement to
today that somebody had …….[
indistinct/audio
corrupted] while they were having a conversation happened to speak
about this matter. She was initially not aware
that the person was
talking about this case. And when she became aware of that , that
unsettled her as she became privy to some
information that she should
not have been privy to. This is generally the same ground that is
generally used by Magistrates or
Judges, when they become aware of
some information in the case which they are dealing with that they
should not become aware of,
then they have no other alternative but
to recuse themselves from the case. She is therefore of the opinion
that it is undesirable
for her to continue in this matter. That is
all, Your Worship.’
[20]
Both parties thereafter addressed the court in terms of section 147
of the Criminal Procedure Act . It
is not apparent from the
record why the parties employed that section when it governs a
trial before assessors in the superior
court instead of section 93
ter (11) (a) (v) of the
Magistrates’ Courts Act 32 of
1944
. They both agreed that in the interests of justice
Ms Qcube should be excused. It appears that the regional court
magistrate
was not concerned at all about the interaction that the
prosecutor had with the assessors in his office. This interaction did
not
occur in open court. It took place in the absence of the
appellant’s legal representative. The conversation was directly
related to the case. The prosecutor being an officer of the
court ought to have known that meeting with assessors outside
the court room was not only undesirable but was seriously prejudicial
to the appellant. Surprisingly, the regional court
magistrate
did not frown upon such conduct. Such interaction was , without a
doubt , not in the interests of justice and amounted
to an
irregularity.
Whether
the trial court committed a fatal irregularity by continuing the
trial before one assessor
[21]
The regional court magistrate remained with one assessor after the
recusal of the other assessor.
The appellant through his
attorney insisted that two assessors should be present. On 21
September 2022, the court directed
that the trial shall proceed with
the remaining assessor. There were no reasons given for the
decision to ignore the submission
made on behalf of the appellant .
Most importantly , both parties were
ad idem
that the
court had a discretion where the other assessor had been recused from
the trial as was the case herein.
[22]
Section 93
ter
(11) (a) (iv) of the Act
[9]
provides that:
‘
(11)(a)
If an assessor –
(i)
dies ;
(ii) in the
opinion of the presiding officer becomes unable to act as an
assessor;
(iii) is for any
reason absent; or
(iv)
has been ordered to recuse himself or herself or has recused himself
or herself in terms of subsection 10, at any stage before
the
completion of the proceedings concerned, the presiding judicial
officer may, in the interests of justice and after due consideration
of the arguments put forward by the accused person and the
prosecutor-
(aa)
direct that the
proceedings continue before the remaining member or members of the
court,
(bb)
direct that the
proceedings start afresh;or
(cc)
in the
circumstances contemplated in the subparagraph(iii), postpone the
proceedings in order to obtain the assessor’s presence:
Provided
that if the accused person has legal representation and the
prosecutor and the accused consent thereto, the proceedings
shall, in
the circumstances contemplated in subparagraphs (i), (ii), or (iv),
continue before the remaining member or members of
the court”.
[23]
This principle was confirmed by the Supreme Court of
Appeal, in
Mncwengi
& others v The State
[10]
where the court stated that:
‘
Where
it is impossible to obtain or secure the assessor’s presence,
the court may in the interests of justice direct that
the proceedings
to continue before the remaining member or members of the court or
direct that the proceedings start afresh.”
See
also
Jeke
v State
[11]
.
[24]
The law is settled that an accused person is at all stages of the
trial to be tried by the court as constituted
when the trial
commenced, subject to the exception authorized by section 147 of the
CPA ( Mncwengi supra). It is common cause that
on 21 September 2021
the court was not properly constituted. The court had a discretion as
mentioned in Jeke’s case,
supra
, to first consider the
submissions from both parties and whether it was in the interests of
justice to start the trial afresh.
The court directed that the trial
should proceed with the remaining member despite the objection by the
appellant. In addition,
it is not clear what the court considered to
justify that it was in the interests of justice to continue with
trial with one assessor.
There is no indication on record what
factors were considered by the trial court : whether the trial was at
an advanced stage,
or whether it would be prejudicial to both the
state and the appellant if the trial were to start de novo , or
whether the
trial court considered the status of the appellant?
It seems to me that in the exercise of its discretion the court
failed to apply
its mind judicially and in particular to the fact
that the appellant wished to have two assessors. I find that
the court
committed an irregularity by proceeding with one assessor
despite an objection by the appellant.
The
conviction and sentencing of a defence witness
[25]
In exercising its inherent powers and in observing a glaring
injustice from the record , this court directed
the parties to submit
supplementary heads of arguments in respect of the conviction
and sentence of the defence witness by
the regional court magistrate.
They were requested to address the court whether such a conviction
and sentence were in accordance
with justice. The court was of
the view that it would be prudent to deal with matters affecting Mr
Sandile Dyani at the same
time as it was dealing with the appeal.
[26]
It appears from the record that the defence witness, Mr Dyani
was not properly warned by court. On
24 March 2022, the matter was
postponed to 20 June 2022, the record reads “
the accused as
well as the witnesses are warned to appear at half past eight in the
morning.”
There is no mention of the names of the witnesses
that were warned by court. On 20 June 2022, Mr Dyani delayed and Mr
Mdleleni
placed himself on record as his attorney and explained to
the court that Mr. Dyani was attending to an urgent personal matter
at
the Traffic Department. The court was not satisfied with the
explanation and issued a warrant for his immediate arrest and the
matter was rolled over to the following day. It appears that the
warrant was executed on that very same day.
[27]
On 21 June 2022, the trial court proceeded with an enquiry in terms
of section 170 of the CPA
. Notwithstanding the explanation proffered
by his attorney, which Mr. Dyani confirmed, to the effect that he had
to rush to the
traffic department in Zastron because his vehicle had
been impounded by the traffic officers, the trial court found
him guilty.
Mr Dyani stated that he was directed to report at
the traffic department with documentation to prove that he owned the
vehicle.
The trial court convicted Mr. Dyani for failure to
appear before court on 20 June 2022.
[28]
Although the court found that his non -appearance was not
due to any wrongdoing on
his part , it proceeded to convict him ,
purportedly, in terms of section 170 of the CPA. Section 170 of
the CPA clearly
finds application where the enquiry is directed at an
accused person who failed to appear in court and not a
witness.
After convicting him , the court cautioned and
discharged Mr Dyani. Both parties submitted that both the
conviction and sentence
amounted to an irregularity and should be set
aside. The court appreciated the assistance received from both
Mr Jikwana and
Mr Methuso in this regard as Mr Dyani’s case was
not part of the appeal proceedings.
[29]
Section 170
of the
Criminal Procedure Act 51 of
1977
, provides that;
(1)
An accused at
criminal proceedings who is not in custody and who has not been
released on bail, and who fails to appear at the place
and on the
date and at the time to which such proceedings may be adjourned or
who fails to remain in attendance at such proceedings
as so
adjourned, shall be guilty of an offence and liable to the punishment
prescribed under subsection (2) .
(2)
The court may,
if satisfied that an accused referred to in subsection (1) has failed
to appear at the place and on the date and
at the time to which
proceedings in question were adjourned or has failed to remain in
attendance at such proceedings as so adjourned,
issue a warrant for
his arrest and, when he is brought before court, in a summary manner
enquire into his failure so to appear
or so to remain in attendance
and unless the accused satisfies the court that his failure was not
due to fault on his part, convict
him of the offence referred to in
subsection (1) and sentence him to a fine not exceeding three
months”.
[30]
The court a quo erred by convicting the defence witness in terms of
the above provisions. The explanation
proffered by the witness
appeared to have been reasonable and satisfactory. Infact the court
found that his non – appearance
was not due to any wrong doing
on his part. It follows that the court erred by convicting Mr. Dyani.
[31]
Consequently, the court is satisfied that both the conviction and
sentence of Mr Dyani were unnecessary
and resulted in an injustice.
The conviction and sentence of Mr Dyani should be set
aside.
Witness
not sworn in
[32]
The state called the first witness Athenkosi
August, an eye witness. It appears from the record that the
witness was not sworn
in nor caused to make an affirmation.
Mr Methuso criticized the transcriber that she did not state what
explanation
was given to the witness. One thing is clear from the
record and that is whenever other witnesses were sworn in, the
transcriber
recorded that in no uncertain terms. In relation to this
witness she stated clearly that the witness was not sworn in and
there
was no affirmation. Such an omission constitutes an
irregularity because the regional court magistrate considered the
testimony
of that witness and weighed it together with all the other
evidence.
Section 162
of the
Criminal Procedure Act 51 of 1977
provides that:
‘
(1)
Subject to the provisions of
sections 163
and
164
, no person shall
be examined as a witness in criminal proceedings unless he is under
oath, which shall be administered by the
presiding judicial officer
or, in the case of a superior court, by the presiding judge or the
registrar of the court..’
[33]
In reality because the witness did not testify
under oath , by admitting his evidence , the trial court
erred,
because his testimony lacked the status and character of evidence and
was accordingly inadmissible
[12]
.
[34]
The above irregularities and misdirections are
sufficient to warrant interference by this court with
the
convictions and sentences of both the appellant and Mr Dyani for all
the reasons set out above. The irregularities are fatal
and the only
result would be to quash the proceedings
[13]
.
There is accordingly no reason for this court to consider the merits.
[35]
In the result the appeal must be upheld and both the conviction and
sentence of the appellant must be set
aside. Both the conviction and
sentence of Mr Sandile Dyani must also be set aside.
ORDER
[36]
The following Order is made :
1.
The appeal is
upheld.
2.
The conviction
and sentence of the appellant are set aside.
3.
The conviction
and sentence of Mr Sandile Dyani are set aside.
4.
The
Registrar of this court is directed to send a copy of this Order to
the clerk of the Regional Court , Sterkspruit who
must ensure that
this order is brought to the attention of Mr Sandile Dyani.
T.V.NORMAN
JUDGE
OF THE HIGH COURT
I
agree .
F.MONAKALI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the APPELLANT
: MR
JIKWANA
Intructed
by
: CHRIS
BODLANI ATTORNEYS
28
MADEIRA STREET
MTHATHA
REF:
ECM/Jozana
TEL:
047 532 5711
EMAIL:
admin@bodlaniattorneys.co.za
For
the RESPONDENT
:
MR
METHUSO
Instructed
by
: OFFICE
OF THE DIRECTOR OF PUBLIC PROSECUTIONS, MTHATHA
LOWER
SISSON STREET
FORTGALE
MTHATHA
TEL:
047 501 2688
EMAIL:
lmethuso@npa.gov.za
REF:
10/2/5/3-21/23
Matter
heard on :
15 MAY 2024
Judgment
delivered on: 17 MAY 2024
[1]
S
v Molimi [
2008] ZACC 2
;
2008 (3) SA 608
( CC)
[2008] ZACC 2
; ;
2008 (5) BCLR 451
( CC) at para 54.
[2]
S
V PM
2014 (2) SACR 481
(GP) para 36 ; see also S Vv Jordaan and
Others
2018 (1) SACR 522
( WCC) para 127.
[3]
Tuta
v The State
(CCT 308/20)
[2022] ZACC 19
;
2023 (2) BCLR 179
(CC);
2024 (1) SACR
242
(CC) (31 May 2022).
[4]
Steyn
v S
2010
(1) SACR 411 ( SCA ) 411 (SCA) (27 November 2009).
[5]
S
v Sithole
(54/06)
[2006] ZASCA 173
(28 September 2006 ) at [8].
[6]
Jeke
v S
2012
JDR 1551 GSJ.
[7]
S v
Vilakazi
2009 (1) SACR 552 (SCA).
[8]
R
v Price
1955
(1) SA 219 (A); [1955] 1 All SA 332 (A).
[9]
Magistrates
Court Act, 32 of 1944.
[10]
Mncwengi
& others v The State
(395/2018)
[2019] ZASCA 135
(1 October 2019) .
[11]
Jeke
v S
2012
JDR 1551 (GSJ).
[12]
S
v B
2003 (1) SACR 52
( SCA) at [14] ; S v Ndlela
1984 (1) SA 223
(N) at
225 G-H.
[13]
S
v Petersen & Another
1998
(2) SACR 311
( C) at 312 b-h;
S
v Gayiya
[2016] ZASCA 65
;
2016 (1) SACR 165
(SCA) para 6.