2
2] At the commencement of the proceedings in the Regional Court, Benoni on 23
September 2014, the presiding magistrate stated the following:
“…the appearances in this matter is as follows; the presiding office is Mr Makamu, the
court in this instance is sitting with two assessors, Mrs Ntlam (?) and Mrs Sheboshego
(?) and for the state is Mr Marisham and for the defence Mrs Clarence and the
interpreter is Ms Khumalo.” (sic)
3] It appears that the charges were then read to the appellant, who pleaded not
guilty , who denied all the allegations made against him, and who elected not to give a
plea explana tion. The trial then commenced and over the following month, the State
and the appellant put on their respective cases and called their respective witnesses.
4] On 15 October 2014, the appellant was found guilty on both counts of rape. In
convicting the appellant, the court stated:
“And the decision is unanimous with the two assessors and the conclusion is that the
accused is the person that penetrated the complainant twice…”
5] On the same date he was sentenced to twenty -five years’ imprisonment for both
counts, taken together for purposes of sentencing, and also found unfit to possess a
firearm in terms of s103(1) of the Firearms Control Act 60 of 2000. Lastly, it was
ordered that the appellant’s name is to be recorded in the National Register of Sexual
Offenders.
6] It is to be noted that the appellant was in custody throughout the proceedings,
having been arrested on 27 January 2014 and has remained in custody to date.
3
7] It is as against both convention and sentence that this appeal serves before this
court with leave of the court a quo .
8] It is firstly with utter dismay that this court notes that it has taken this appeal
more than 10 years to find its way to this date of hearing on 16 April 2025. There is
absolutely no information provided for this lapse, other than appellant’s counsel noting
that there may have been an issue with the proper transcription of the matter be ing
obtained. Whatever the reason, this is unacceptable. But given the outcome of this
judgment, and the reasons provided, at this stage we say nothing more on this issue.
9] The main issue is that it appears that the presiding Magistrate appointed two
assessors to sit with him. One can only assume that this was done in terms of s93 ter
of the Magistrate’s Court Act 32 of 1944 (the MCA) – as the record does not state the
reason for the appointment
10] It is however un clear from the record when the assessors were appointed by
the court , their full names, whether they had been properly sworn in, or indeed how
and whether they participated in any decision -making process on the facts as they
were required to do. From the time when the case first came before court on 28
January 2014, it was postponed no fewer than on ten occasions before it finally
proceeded on trial on 23 September 2014. After the complainant’s evidence and cross -
examination was conclude d, the matter was adjourned to 8 October 2014 and then to
9 October 2014 where several other witnesses for the State testif ied, as did the
appellant and his on e witness. The matter was then postponed to 15 October 2014 for
argument and judgment on conviction and sentence .
4
11] Apart from the recording on 23 September 2014, there is no indication on the
Magistrate’s notes, or on the transcript itself, that the appointed assessors were
present on any of the prior or subsequent occasions , that they participated in the
proceedings or how they participated in the eventual findings and conviction . This, in
my view, constitutes an irregularity that taints the entire proceedings and which
renders the proceedings a nullity as it is not clear from the record that the court was
properly constituted a t all times.
12] Our courts have set aside proceedings in which the court had proceeded in the
absence of appointed assessors:
a) in S v Van der Merwe 1 the magistrate sat with two assessors. The State
case was concluded and after an adjournment the assessors were not
present. Both the accused and the prosecutor agreed that the case
should continue without the assessors. There was no evidence that the
assessors had become unavailable or could not be traced. No reason
was given for their non -attendance. The court was therefore not properly
constituted and the verdict of guilty was tainted with irregularity. The
conviction was set aside.2
b) in S v Mngeni 3 The appellant appeared in a magistrate's court on a
charge of assault with intent to do grievous bodily harm. He pleaded not
1 1997 (2) SACR 230 (T)
2 The court relied on the statement in R v Price 1955 (1) SA 219 (A) at 224 (C): 'Prima facie when a decision is
entrusted to a tribunal consisting of more than one person, every member of that tribunal shall take part in the
consideration of the decision’.
3 2001 (2) SACR 20 (E) ; also S v Daniels & another 1997 (2) SACR 531 (C) .
5
guilty and the trial proceeded before a magistrate and two assessors.
Whilst the complainant was still under cross -examination, the matter was
postponed. When the case was called after a further postponement,
the assessors were absent and the clerk of the court was requested to
contact them and advise them that the matter would be heard on a
subsequent date. On that date the assessors were again absent and the
court proceeded to hear the matter in their absence. No reason for their
absence was given and the appellant was convicted and sentenced in
the ensuing trial. The court found that if assessors absconded during the
trial without good reason and the magistrate continued with the trial
without them, this amounted to a fatal irregularity which vitiated the
proceedings. And that the amended s 93 ter(11) of the MCA did not
change the legal position pertaining to the absence of
assessors. Accordingly, the proceedings had to be set aside.
14] One last issue that requires comment is the fact that the intermediary that was
appointed was not sworn in by the court. The record simply states the following:
“COURT: I know that you have appeared before this court and worked as an
intermediary before and you are a competent and efficient intermediary and you are
appointed as such in this matter…”
15] According to Du Toit; Commentary on the Criminal Procedure Act4
“In S v QN 2012 (1) SACR 380 (KZP), … (t) he court in QN (supra) stressed, however,
that it did not wish to denigrate the practice that had arisen since Booi and Motaung of
4 RS 72, 2024 ch22 -p114B
6
swearing in an intermediary. Gorven J insisted that the function of an intermediary was
extremely important —this being to minimise the mental stress or suffering of the
witness by employing his or her specific expertise while the witness gave evidence.
And, to require an intermediary to discharge this function under oath seemed to him a
'salutary practice’ (at [26]). See, too, Banoobhai & Whitear -Nel 2013 Obiter 359 and
365, where the authors agree with the court and exhort the legislature to make
provision for the swearing in of intermediaries subject to the proviso reflected
in Motaung that the mere failure to swear in, or to swear in properly, an intermediary
should not in itself render the witness’s evidence inadmissible. The legislature has, in
the new sub -s (11), met the wish for a provision for swearing in intermediaries, but has
not added the proviso wished for by the authors.
S v QN was followed in S v Mahlangu (unreported, GP case no A382/2014, 17 July
2015), where the court disagreed with what was said to the contrary in Booi, although
Jansen J accepted, too, that it was 'clearly preferable’ that the intermediary be sworn
in 'as a precaution to alert a mediator to the grave repercussions of misinterpreting or
misrepresenting questions posed’ (at [4]). ”
13] Thus it would appear that it was “clearly preferable’ that the intermediary be
sworn in. However, as a result of the fact that the court was not properly constituted
and that this is an inescapable irregularity, nothing more need be said on the latter
issue.
14] As a result, it is unnecessary to delve into the merits of this appeal. The result
is that the conviction and sentence must be set aside .
8
For the defendant : Adv EV Sihlangu
Instructed by : National Director of Public Prosecutions
Date of hearing : 16 April 2025
Date of judgment : 17 April 2025