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2024
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[2024] ZAECMHC 86
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Booi and Others v S (Appeal) (CA&R38/2024) [2024] ZAECMHC 86 (25 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
Case
No: CA&R 38/2024
In the matter between:
THEMBINKOSI
BOOI
1
st
Appellant
FUZILE
KANGO
2
nd
Appellant
MASIBULELE
MOLOSI
3
rd
Appellant
SIYABULELA
MCASA
4
th
Appellant
And
THE
STATE
Respondent
APPEAL
JUDGMENT
MHAMBI AJ
INTRODUCTION
1.
This is an appeal brought in terms of section
308 B (1) (a) of the
Criminal Procedure Act, 51 of 1977
.
2.
The basis of this appeal is whether the court a quo erred in
proceeding with a trial without observing or complying
with
section
93
ter of the Magistrates Court’s Act 32 of 1944 “
the
MCA”.
3.
The Appellants appeared before the Regional Court, Ngcobo and before
the Regional Court Magistrate, Mr. Gwazela.
On 23 November 2023 the
Appellants were convicted and on 24 November 2024, the Appellants
were sentenced on a charge of murder,
and a charge of assault with
intent to do grievous bodily harm.
4.
It is necessary for this court to stress that during conviction and
the subsequent sentencing of the Appellants,
the amended
section
93ter
(1) (b), having been substituted by
section 2
of Act 15 of 2023
was not operative as the amendment was with effect from 3 April 2024.
This appeal therefore will be considered
on the old dispensation of
section 93ter (1) (b) of the
MCA.
5.
This criminal appeal raises the following question of law:
a)
Whether the court a quo’s failure to summon two assessors to
assist him in the conduct of the trial,
and whether failure by the
court a quo to advise the Appellants of their rights to have two
assessors present during the trial
proceedings, and establish from
them whether trial could proceed in the absence of the assessors,
renders the trial a nullity.
b) This
point needs to be considered in the light of the charge of murder to
which the appellants were facing,
and the requirements of section
93ter of
MCA
.
6.
This appeal squarely falls within Section 93ter (1) of the
MCA:
The
relevant portion thereof reads as follows:
1. the judicial officer
presiding at any trial may, if he deems expedient for administration
of justice:
(a) before any evidence
has been led; 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 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 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 request
that the trial be proceeded
without assessors, where upon the judicial officer may in his
discretion summon one or two assessors
to assist him
.
My
emphasis added.
7.
The genesis
of or catalyst for all authorities on Section 93ter (1) of the MCA is
the Supreme Court of Appeal, (SCA) judgment in
S
v Gayiya
[1]
.
8.
Gayiya
was re-affirmed by the SCA in
S
v Mntambo
[2]
as follows:
(9) Until the judgment in
S v
Gayiya
there were conflicting judgments in relation to the interpretation of
S93 ter (1). This court referred to
Chala
and Others v Director of Public Prosecutions, KwaZulu Natal and
Another
[3]
,
stating that the conflicting authorities had succinctly been dealt
with in that case. In Gayiya, it was held that the appointment
of
assessors was peremptory, unless the accused request, prior to him
pleading to a murder, that the trial should proceed without
assessors.
9.
In
Chala
the court considered that where the Regional Court
Magistrate had not sat with assessors, and the accused had not
requested that
the trial proceed without assessors, the court was not
properly constituted and that the convictions and sentences had to be
set
aside.
10.
The court
in an orbiter in
Evodia
Manyophang v The State
[4]
held:
“
What S93ter (1)
requires is that an accused person must be informed of the Sections
mandatory provisions and that he may request
that the trial proceed
without assessors”.
11.
The court in
Evodia Manyophang, analysing the judgment in
DPP
KZN v Pillay
(2023 ZASCA 105
,
2023 (2) SACR 254
SCA
) says
:
“
where an
accused is represented, it must be established that the
representative and the accused were aware of the provisions of
the
section, and further whether the accused, as represented, has made a
request as envisaged. It is incumbent upon the presiding
officer to
ensure that the court is properly constituted in accordance with
section 93ter (1). As indicated in Gayiya, the presiding
officer must
take the lead in doing so, at the stage before any evidence is led”.
12.
Clearly, no evidence shall be led if there was an election to have
the assessors appointed, put differently, no evidence should
be led
without the presiding officer establishing from the accused or his
representative whether the assessors are requested or
not.
13.
In that regard the accused’s right to a fair trial is empty
without proper explanation to the manner and exigency of the
right
conferred by Section 93 (1) ter of the
MCA.
14.
It is apposite to state that once appointed, an assessor becomes a
member of the court and before he hears any evidence, he
or she has
to take an oath or make an affirmation, administered by the trial
judge to give true verdict upon issues to be tried,
on the evidence
placed before him or her.
15.
In
DPP, KZN v Pillay
(supra), the court held
that compliance with section 93(1) ter of the
MCA
is a
fact-based inquiry. Considering this, it is equally undesirable to
lay down a general rule regarding what must be done to comply
with
the section.
16.
In
S v SEJAPHALE
(2000 (1) SACR 603
(T),
where a
magistrate failed to advise the accused of his rights regarding the
evidence given at a bail hearing. At 604 I-J and 605
A-B,
Jordan J
said that where one was dealing with a mandatory provision of an
Act one should always bear in mind that the legislature had a reason
for it and that it was binding on the court.
17.
The record reflects that the trail proceedings in this matter started
on 14 September 2023, the appellants were legally represented
by Mr.
Rayi on private instructions. During the start of the trial
proceedings, the prosecutor put the charges, the court informed
the
appellants of the provisions of section 51(2) of the Criminal Law
Amendment act 105 of 1997, and the accused were made to plead
to the
charges.
18.
From the entire record, it shows, the appellants were not advised or
informed of their right to have the trial proceed with
assessors, and
their election on this regard was not established. As I have
demonstrated in authorities cited in this judgment,
the presiding
officer must take the lead in doing so, at the stage before any
evidence is led.
19.
The Regional Magistrate should have established whether the accused
legal representative was aware of the peremptory provisions
of S93
ter (1) and had a duty to establish whether the appellants elect to
proceed with two assessors or not, to ensure that the
court is
properly constituted.
CONCLUSION
20.
The failure by the court a quo to summon assessors or advise the
appellants of their right to have the trial heard in the presence
of
assessors constitutes an irregularity.
21.
Section 304
(2) of the
Criminal Procedure Act, 51 of 1977
empowers
this court to reverse or alter by the reason of an irregularity
proceedings which in the opinion of this court appears
to be a
failure of justice, resulting from such irregularity or defect.
22.
In
S v Naidoo,
1962 (4) SA 348
(A) at 354 D-G,
Holmes J
distinguished between irregularities which are so gross in nature
as per se to vitiate the trial and irregularities of a lesser nature
and regarding the former, which is relevant to this case, he states:
“
In such a case
the court of appeal sets aside the conviction without reference to
the merits. There remains thus neither a conviction
nor an acquittal
and the accused can be re-tried”
23.
In
S v Rice,
1955 (1) SA 219
A 223 D,
the court held
that:
“
if
in fact the
court convicting the accused was not properly constituted, this was
an irregularity that could not be waived”
24.
Consequently, on this ground of points of law, the appellants appeal
should succeed.
25.
It follows that the court a quo was not properly constituted.
The resultant proceedings were a nullity. The convictions
and
sentences imposed upon the appellants must be set aside on that
basis.
26.
It is important that a copy of this judgment be circulated to
the chief Magistrate and the regional magistrates
for the
district of Mthatha, on the basis that criminal trials and
convictions and sentences after 3 April 2024, be not dealt with
in
accordance with the authorities cited in this judgment or any other
authority decided before 3 April 2024, instead the regional
magistrates should deal with criminal trials on the basis of the
amended
section 93
(1) ter as substituted by
section 2
of Act 15 of
2023, that took effect from 3 April 2024.
ORDER:
1. The
appeals are upheld.
2. The
convictions and sentences of all the appellants are set aside.
3. The
registrar of this court is directed to send a copy of this judgment
to the clerk of the Regional Court,
Ngcobo and Mthatha for the
attention of the Chief Magistrate, and the Regional Court
Magistrates, Ngcobo and Mthatha.
M MHAMBI
JUDGE OF THE HIGH
COURT (ACTING)
I agree
RWN BROOKS
JUDGE OF THE HIGH
COURT
DATE
HEARD:
22 October
2024
DATE
DELIVERED:
25 October 2024
[1]
[2016]
ZASCA 65
,
2016 (2) SACR 165
(SCA)
[2]
Case
no 478/202
(2021 ZASCA 17
11 March 2021 para 9 and 10
[3]
2015
(2) SACR 283 (KZP)
[4]
Unreported
judgment of North West Division, CA08/2023 delivered 24 February
2024