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[2019] ZASCA 135
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Mncwengi and Others v S (395/2018) [2019] ZASCA 135; 2019 (2) SACR 583 (SCA) (1 October 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 395/2018
In
the matter between:
MZIWABANTU
MADIBA
MNCWENGI FIRST
APPELLANT
MZIMASI
MADIBA
MNCWENGI SECOND
APPELLANT
BUYELWA
NOKWANDISA MNCWENGI THIRD
APPELLANT
LUMKO
BAMBALAZA FOURTH
APPELLANT
XOLANI
MAKAPELA FIFTH
APPELLANT
MAWANDE
SIBOMA SIXTH
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Mncwengi & others v The State
(395/2018)
[2019] ZASCA 135
(1 October 2019)
Coram:
Petse DP, Saldulker, Van der Merwe and Nicholls JJA and Hughes
AJA
Heard:
06 September 2019
Summary:
Criminal law and procedure - assessor sitting in prolonged trial
- assessor not unable to continue to act as such - trial court ruled
in terms of
s147
of the
Criminal Procedure Act 51 of 1977
that trial
continue before remaining members – ruling constituting
procedural irregularity vitiating the proceedings –
convictions
and sentences set aside.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Boqwana J sitting as court of first instance, with remaining
assessor, Mr H
Swart):
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 Magistrate’s Commission and the Legal Practice
Council.
JUDGMENT
Saldulker
JA (Petse DP, Van der Merwe and Nicholls JJA and Hughes AJA
concurring):
Introduction
[1]
The six appellants were tried in the Western Cape Division of the
High Court, Cape Town (the high court) on three counts of
murder,
four counts of kidnapping and one count of assault with the intent to
commit grievous bodily harm, before Boqwana J and
two assessors, Mr H
Swart and Ms S Solomons, the latter being a practicing attorney.
During a protracted trial, one of the assessors,
Ms Solomons, failed
to return to the trial. The trial then continued before the remaining
members of the court to its conclusion.
At the stage when Ms Solomons
failed to return, the trial had run for seven months and 22 witnesses
had already testified. On 19
November 2014, all the appellants were
convicted on three counts of murder and kidnapping, and one count of
assault with intent
to do grievous bodily harm. On 24 March 2015, the
high court imposed various sentences, which culminated in an
effective sentence
of 18 years’ imprisonment for each of the
appellants.
[2]
On 26 June 2015 the appellants applied for leave to appeal against
their convictions and sentences. Apart from attacking their
convictions and sentences on various grounds, the appellants also
pertinently raised the issue whether the high court had committed
a
fatal irregularity by continuing the trial in the absence of one of
the assessors, Ms Solomons. The applications for leave to
appeal the
convictions and sentences were refused, but leave to appeal was
granted to this court on the limited issue formulated
in the judgment
of the high court in the following terms: ‘whether the trial
should have continued or started
de novo
upon one of the
members of the court becoming unable to act as an assessor’.
[3]
Accordingly, the crisp question for decision in this appeal is
whether the continuation of the proceedings before the remaining
members of the court was authorised in terms of s147(1) of the
Criminal Procedure Act 51 of 1977 (the CPA). If this question is
answered in the affirmative, the appeal must fail, but not so if the
answer is in the negative. This issue must then be considered
against
the following factual backdrop.
Background
[4]
On 14 August 2013, the appellants’ trial commenced. On 17 March
2014, during a trial-within-a trial pertaining to the
admissibility
of certain warning statements, Boqwana J informed counsel for the
defence and the State that she had received a medical
certificate
from a Dr P C Ndomile, stating that Ms Solomons had been booked off
sick by him due to acute anxiety disorder from
17 to 19 March 2014.
The trial was then adjourned to 24 March 2014. Prior to the court
proceedings on 17 March 2014, Ms Solomons
had informed Boqwana J that
she had been offered a position to act as a magistrate in Upington.
Ms Solomons requested that she
be released from her obligations as an
assessor in the trial. Boqwana J declined the request. The office of
the registrar attempted
to contact Ms Solomons for the duration of
that week to ascertain the nature of her illness and the period of
her envisaged absence,
but to no avail.
[5]
When the trial resumed on 24 March 2014, Ms Solomons did not attend
court. At the behest of the trial judge, the registrar attempted
to
contact Ms Solomons on the telephone number she had provided, but
this proved fruitless. An attempt was made to contact Ms Solomons
at
the Upington Magistrate’s Court where it was suspected she
might be, and where she was in fact found. Ms Solomons was
then
requested by the trial judge to submit a written explanation for her
conduct. In response, Ms Solomons addressed a letter
to the high
court explaining her reasons for not returning. These were that the
duration of the trial had far exceeded the allocated
estimated time,
and that this had severely compromised her financial position. She
attributed her dire financial situation to the
fact that her practice
was not generating income because of her extended absence.
[6]
It is necessary to refer to portions of the letter which underpinned
Ms Solomons’ reasons:
‘
Dear
Judge and all the interested parties in the abovementioned matter. I
hereby wish to request your permission to excuse me permanently
from
the abovementioned matter
S v Mncwengi and 6 others.
My
reasons are as follows:
1.
When I was informed about the duration of the matter it was
communicated to me that the estimated period is six to eight weeks or
a little bit longer. At that stage I did not foresee any delay in the
matter or that the matter could probably run for this lengthy
period.
I first was not aware that the matter would take more than six
months on the Court’s roll. In the interim I did [lose] money,
clients and financially I am not doing well.
I
did alert the Honourable Judge NP Boqwana that I applied for other
jobs and that I was accepted to act as Magistrate in the District
Court in Upington.
The Honourable Judge NP Boqwana and Assessor
Mr Swart referred me to the provisions of the
Criminal Procedure Act
51 of 1977
as amended pertaining to the circumstances and conditions
under which an assessor could be excused from record.
I
then attempted to make an appointment with the Judge President to
discuss alternative ways or the possibility of me not forfeiting
the
position as magistrate (acting) offered to me in Upington.
I was
advised that my request to the Honourable Judge President would be
inappropriate. I then withdrew my planned appointment with
the Judge
President and was faced with my own decision.
I
stressed and panicked. I had to think about my family (3 children
plus 1 child, 4 children)
my financial difficulties as well as my
future in the legal profession.
I did not make a decision in
isolation of the rights of the other parties that is the State
Prosecutor, the defence advocates, the
accused and other parties
involved in this matter.
My
decision was based on the fact that there are cases in which only one
assessor is sitting my wish is for the matter to proceed
in my
absence and the rights of the accused will not be affected because of
my absence as the remaining assessor, Mr Swart is still
there
assisting the Judge on the aspect of facts.
I
hereby wish to apologise for the manner in which I dealt with the
situation as well as to plead to all the interested and relevant
parties in this case to accept my reason and absence from the case
as
I accepted and signed a contract to act as a magistrate in Upington
.
S Solomons.’ (My emphasis.)
[7]
The aforegoing letter was brought to the attention of counsel for the
defence and the State, and the matter was then postponed
to 2 April
2014, for the hearing of argument from all the parties as to whether
the provisions of
s147
of the CPA were applicable. On the resumption
of the trial, and after hearing argument, the matter was again
postponed to 14 April
2014 so as to obtain further details from Ms
Solomons with regard to her appointment as a magistrate in Upington.
On 14 April 2014,
Ms Solomons advised the high court in further
correspondence that she had signed a contract on 17 March 2014 to act
as a magistrate
in Upington, and that, in the circumstances, she
would not return to continue with the trial.
[8]
The effect of Ms Solomons’ absence from the trial in light of
s147
of the CPA was argued extensively and the prevailing case law
considered in the high court. After hearing submissions from both
the
defence and the State, the high court ruled that the provisions of
s147
of the CPA were applicable. It then considered that the absence
of Ms Solomons and her reasons for absenting herself from the trial
rendered her unable to continue with the trial as contemplated in
s147
of the CPA. Thus, it directed that the trial proceed before the
remaining members of the court. The high court’s reasoning
appear from the following passages in its judgment:
‘
[T]he
most important principle stated by the court in the
Jeke
case
which I find to be equally important to the present matter is that
where it is impossible to obtain or secure the assessor’s
presence the court may in the interest of justice direct the
proceedings
to continue before the remaining member or members of the
court or direct that the proceedings start afresh. The Court found it
would have been impossible to procure the presence of the assessor
and furthermore, because the matter was almost at the end of
the
State’s case. It would not have been in the interest of
justice, which is the chief and overriding factors, to order
that the
trial start de novo.
.
. .
In
the same manner the continued presence of Ms Solomons in this
trial
would not have served the interest of justice and those of the
accused as her commitment was questionable. Moreover, she departed
not having been released by the Judge. It would not have served the
interest of justice and the accused for Ms Solomons to be forced
to
sit in a trial in which she was not committed. I must stress that Ms
Solomons was not released by this court due to her unwillingness
to
act as assessor or due to lack of interest rather, she advised having
absconded that she could not come back citing financial
distress
arising from loss of clients, wrong estimation of the trial duration
which had caused her stress and emotional distress
and her
appointment to act as a magistrate in Upington.
.
. .
my
view is that the meaning of the word unable to act in
section 147
of
the
Criminal Procedure Act should
be interpreted to
include
inability to deliver justice to the accused. It must also be borne in
mind that four of the accused persons had been in
custody for just
over two years awaiting finalisation of the trial. The
trial had
been running for about seven months and the state was nearing the
close of its case in the main trial
and the trial-within-a-trial
had commenced when the assessor became absent. Witnesses had given
extensive evidence some of whom
individually testified for a number
of days.’ (My emphasis.)
[9]
It is against the foregoing background that the issue raised in this
appeal must be considered. In this exercise there are pertinent
statutory provisions and previous decisions of this court that come
to the fore.
Statutory
framework
[10]
Section 14(2)
of the
Superior
Courts Act 10 of 2013
prescribes that a high court in criminal
matters must be constituted in the manner prescribed in the
applicable law. In the context
of the facts of this case, the CPA is
evidently the applicable law which regulates the conduct of criminal
trials. It is necessary
to emphasise that its provisions must be
interpreted in a manner that promotes the “spirit, purport and
objects” of
the Bill of Rights. Because criminal proceedings
must be conducted in a way that conduces to a fair trial, s35(3) of
the Constitution
of the Republic of South Africa, 1996 is of primary
importance when interpreting the
Criminal Procedure Act.
[1
]
[11]
Section 145
of the CPA provides
for the participation of assessors in a criminal trial. In terms of
s145
a judge in the high court may hear a case with one or two
assessors. Once appointed, an assessor becomes a member of the court.
Before an assessor hears any evidence, he or she has to take an oath
or make an affirmation, administered by the trial judge to
give a
true verdict upon the 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 be a member of the court, and thus
participate in all the decisions of the court.
[2]
[12]
The relevant statutory provisions that deal with an assessor’s
inability to act as an assessor are located in
s147
of the CPA, which
permit a trial to be continued in the absence of an assessor in
certain specified circumstances.
Section 147
reads:
‘
Death
or incapacity of assessor.
(1)
If an assessor dies or, in the opinion of the presiding judge,
becomes
unable to act
as assessor at any time during a trial,
the presiding judge may direct –
(a)
that the
trial proceed before the remaining member or members of
the court; or
(b)
that the
trial start de novo
, and for that purpose summon an
assessor in the place of the assessor who has died or has become
unable to act as assessor.’
(My emphasis.)
Discussion
[13]
The proper interpretation of
s147
has been considered in several
judicial dicta of this and other courts. More than two decades ago,
this court had occasion to consider
the meaning of the words ‘unable
to act’ in
s147
in two decisions,
S v Gqeba & others
1989 (3) SA 712
(A);
[1989] 2 All SA 425
(A) and
S v Malindi &
others
1990 (1) SA 962
(A);
[1990] 4 All SA 433
(AD).
S
v Gqeba
[14]
In
Gqeba,
during the trial of 14 accused charged with murder,
one of the assessors was discharged by the trial judge in terms of
s147
of the CPA. The assessor had requested that he be released from
his duties as an assessor in order for him to accompany his only
daughter, who was suffering from advanced cancer, for medical
treatment. Having considered that such a matter fell within the
purview of
s147
, the assessor was discharged on humanitarian grounds,
with the unanimous consent of the defence and the State. The trial
continued
before the judge and the remaining assessor. At the end of
the trial, some of the accused were acquitted and six others were
convicted
and sentenced to death.
[15]
On appeal, Grosskopf JA (writing for the majority), found that the
desire of the assessor to be with his daughter was motivated
by
practical and emotional considerations. It was common cause that the
concept ‘unable to act’ embraced both physical
and mental
disability. Nevertheless this court said that it seemed clear that
the desire of an assessor to be discharged, however
pressing his
reasons might be, would not amount to an ‘inability to act’.
This court further noted that however understandable
the attitude of
the trial judge was, the discharge of the assessor was ‘not
based on any opinion regarding the [assessor’s]
ability or
“bekwaamheid” to carry on his duties as an assessor’.
Rather, continued the learned judge, this was
a case where the
assessor was ‘able’ but ‘unwilling to act’.
The convictions and sentences were therefore
set aside. In the
dissenting judgment, Steyn JA found that the assessor became unable
to act as such. In his view the assessor’s
emotional state and
his daughter’s condition were inseparably linked, and that the
assessor was and would indefinitely have
been unable to act as an
assessor. He emphasised that the assessor’s mind would be
elsewhere, and his continued presence
on the bench would have been
physically and juridically useless (or even harmful).
[16]
However all the judges in
Gqeba
were agreed that
‘incapacity’ in
s147
demanded that a judge find that an
assessor cannot proceed as such.
The assessor’s incapacity
may be physical or mental, possibly as a result of extended or
serious emotional stress. However,
the assessor’s mere wish,
irrespective of how serious the motives may be does not constitute
‘incapacity’ within
the meaning of the subsection.
[3]
Additionally, Grosskopf JA held with reference to the principles
enunciated in
R v Price
1955
(1) SA 219
(A) at 223D,
[4]
that, if in fact the court convicting the accused was not properly
constituted, this was an irregularity that could not be waived.
Grosskopf JA went further to say that the result reached may be
regarded as unsatisfactory, but could not be avoided since the
correct composition of the court was always a matter of importance.
S
v Malindi
[17]
In
Malindi,
the appellants were accused of treason;
alternatively terrorism, subversion, murder and furthering the
objects of an unlawful organisation.
Approximately 17 months after
the trial began, the trial judge made an order that one of the
assessors had become unable to continue
acting as an assessor in the
case. He further directed that the trial continue with the remaining
members. The accused brought
an application to have the trial
quashed,
inter alia
, on the grounds that the trial judge
erroneously acted in terms of
s147(1)
of the CPA, by ruling that the
assessor was unable to act. Thus, so the argument went, the court was
no longer properly constituted.
On appeal, this court considered the
meaning of the word ‘unable to act’ for the purpose of
the power that
s147(1)
conferred on judges. Corbett CJ said the
following:
‘
The
word “
unable”, in the context of
s 147(1)
conveys to
my mind an actual inability to perform the function of acting as an
assessor. Such an inability could derive from an
inherent physical or
mental condition or possibly also a situation which physically
prevented the assessor from attending the trial,
such as for example
indefinite detention here or in a foreign country
. I do not
think, however, that the word “unable” is appropriate to
describe or comprehend the situation where an assessor
becomes
legally incompetent to continue to act in a case because of some act
or occurrence which warrants his recusal. I am also
doubtful whether
the word “
onbekwaam
” even in the sense of
“
ongeskik”, is wide enough to comprehend such a
situation; but even if it is, it seems to me, applying the principles
enunciated
in S v Moroney, that the ambit of
s 147(1)
should be
restricted to what is common in the meaning of “unable”
and “onbekwaam”.’
(My emphasis.)
[18]
Before us counsel for the State conceded that Ms Solomons had
absconded. Nevertheless, he contended that her unwillingness
to
continue to act as an assessor fell within the purview of
s147
of the
CPA, in that she was unable to perform the functions of an assessor.
In contrast, counsel for the appellants contended that
s147
was not
applicable. Simply put, it was argued by the appellants that Ms
Solomons had absconded, and was unwilling to continue as
an assessor.
By doing so, she denied the appellants their right to have the
evidence presented and considered by every member of
the court, as
constituted when the trial commenced. This concluded the argument,
was a fatal irregularity which vitiated the trial.
[19]
The Constitutional Court stressed the importance of the role of
assessors in
S v Jaipal.
Their role lies in their
participation in judicial decision-making based on their experience
in the administration of justice or
their skills in specific matters
which may have to be considered at the trial. Assessors have
considerable power and play an important
role in the functioning of,
as well as the legitimacy of criminal courts. Their dignity, status
and needs must be respected by
all those who interact with them in
the performance of their judicial duties. At the same time assessors
must also be aware of
the significance of their role and act
accordingly, in terms of the law.
[20]
As alluded to above, the crux of this matter is whether Ms Solomons,
who having committed herself to act as an assessor in
a criminal
trial, and later found herself in a precarious financial position
because the trial had become protracted, was ‘unable’
to
continue as an assessor within the meaning of
s147
of the CPA.
[21]
Ms Solomons’ ability or inability to continue to act as an
assessor must be determined objectively. Having regard to
the
principles in
Malindi
and
Gqeba
there must be an actual
inability to perform the functions of an assessor. This could be
derived from an inherent physical impairment
or a prolonged emotional
upheaval (mental condition). There were no objective facts before the
learned judge to suggest that Ms
Solomons had become physically or
mentally unable to continue to act as an assessor as propounded in
Gqeba
and
Malindi.
Ms Solomons freely elected to sign a
contract of employment to act as a magistrate in another court whilst
she was committed to
act as an assessor in the high court. There was
no expert evidence on the basis of which the learned judge could form
an opinion
that Ms Solomons had become physically or mentally unable
to carry out her functions as an assessor.
[22]
Ms Solomons’ desire was that she be released from the trial
because of the financial predicament she found herself in,
due to the
prolonged trial. To find that she was unable to act within the
meaning of
s147
because she had become financially impoverished,
would be straining the language of the section beyond what is
contemplated by
the Legislature. There must be objectively sound
reasons for an assessor to become ‘unable to act’. In Ms
Solomons’
case her financial impoverishment cannot amount to an
objective inability to act as an assessor in terms of
s147
of the
CPA. The ambit of the words ‘unable to act’ in
s 147
does
not envisage the case where an assessor is unwilling to continue as
an assessor due to financial hardship, as a result of
a prolonged
trial.
[23]
The power vested in a trial judge to determine the inability of an
assessor to continue acting as an assessor must be narrowly
construed. Objectively adequate grounds for an inability must exist
for a court to form the opinion that an assessor is unable
to
continue as an assessor in the trial. The reasoning underpinning the
high court’s decision was that the interests of justice
militated against the trial being stopped and commencing
de novo
because it was not possible to secure Ms Solomons’
presence. Since Ms Solomons was unwilling to continue as an assessor,
for
the reasons articulated in her letter, the learned judge reasoned
that it was in the interests of justice to release her and continue
with the trial before the remaining members. In so doing the high
court erred.
[24]
The learned judge relied on
three decisions for justifying that the appellants’ trial
proceed before the remaining members
of the court. The first case was
S v Jeke
2012
JDR 1551 (GSJ)
[5]
(per Mbha J, Sutherland J concurring). This was an appeal from the
Germiston Regional Court where the assessors, who were drawn
from the
community as part of a pilot project, were released from their duty
as assessors because of their inability to continue.
The reason being
that the Department had terminated the usage of assessors due to a
depleted budget. As a result of non-payment,
the two assessors made
it clear that they would no longer be available to act as assessors.
The magistrate found that the assessors
were unable to continue as
assessors in terms of
s 93
ter
(1) and (11) of the
Magistrates’ Courts Act 32 of 1944
. Mbha J agreed with the
magistrate.
[25]
The second case was
S
v Matakati & others
[2007]
ZAWCHC 328.
[6]
In this matter an assessor had indicated to the court that in view of
the trial having continued for longer than two years, which
was more
than he had predicted, his income from his legal practice as an
attorney was severely affected. Ndita J found that the
circumstances
with which the court was confronted were precisely what
s147
of the
CPA contemplated. Ndita J was of the view that an assessor who lacked
commitment to a trial is incapable of delivering justice
to an
accused, and therefore unable to act as an assessor. Whilst
acknowledging that there has been consistency in judicial decisions
that the word ‘unable’ relates to the assessors physical
and mental inability, her firm view (relying on
S
v Zuma
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)), was that
s147
of the CPA includes eventualities such as
inability on the part of an assessor to deliver justice. She
concluded that the assessor
was unable to continue with the trial.
[26]
The third case that the
learned judge in the high court relied upon was
S
v Khumalo
2006 (9) BCLR
1117 (N)
[7]
.In
that matter during a protracted trial one of two assessors suffered a
stroke. As a result, the assessor was unable to continue
as an
assessor. The learned Judge President stated that it would not be in
the interests of justice that the case begin
de
novo.
Conclusion
[27]
From an analysis of the above
cases, relied upon by the high court, the following appears:
Jeke’s
case dealt with a different
statutory provision and is distinguishable.
Khumalo
is similarly
distinguishable. There the assessor
suffered a stroke and was for
that reason unable to act. For the reasons mentioned in this
judgment,
Matakati
was
wrongly decided. The high court appears to have paid little regard to
the decisions of this court in
Gqeba
and
Malindi
,
both of which were not only instructive but were directly on point,
and by which she was
bound.
[8]
[28]
Clearly, the high court was faced with a dilemma whether to proceed
with the trial in Ms Solomons’ absence, or direct
that the case
starts
de novo
before another court. The situation was
untenable especially since Ms Solomons had already absented herself
indicating that she
would not return. In these circumstances, the
exasperation of the trial judge is understandable.
[29]
The law is now 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 exceptions
authorised by
s147
of the CPA. Any deviation from that enduring
principle can only have but one result that the proceedings are
quashed.
[9]
[30]
Before I conclude this judgment, I am impelled to refer to the
conduct of Ms Solomons, which must be deprecated. This was a
clear
case of abscondment and a dereliction of her duty as an assessor. Her
conduct warrants a referral of this judgment to the
Magistrate’s
Commission and the Legal Practice Council to investigate whether her
conduct falls short of the standard expected
of an officer of the
court. To this end the registrar of this court will be directed to
send a copy of this judgment to the Magistrate’s
Commission and
the Legal Practice Council for whatever appropriate action they may
consider necessary against Ms Solomons.
[31]
In the result, the appeal must be upheld and both the convictions and
sentences set aside.
[32]
The following order is made:
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 Magistrate’s
Commission and the Legal Practice
Council.
__________________
HK
Saldulker
Judge
of Appeal
Appearances:
For
First to Third Appellants A Mia
Instructed
by:
Legal
Aid South Africa, Cape Town
Legal
Aid South Africa, Bloemfontein
For
Fourth to Sixth Appellants: M Calitz
Instructed
by:
Legal
Aid South Africa, Cape Town
Legal
Aid South Africa, Bloemfontein
For
Respondent: J C Ntela
Instructed
by:
Director
of Public Prosecutions, Cape Town
Director
of Public Prosecutions, Bloemfontein
[1]
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC);
2005 (1) SACR 215
(CC) para 32. S v Zuma 1995 (2) SA 642 (CC);
1995 (4) BCLR 401 (CC); 1995 (1) SACR 568.
[2]
R v Price 1955 (1) SA 219 (A); [1955] 1 All SA 332 (A).
[3]
In A Kruger Hiemstra’s Criminal Procedure (Electronic version,
2019) at 21-12, the author states in the commentary that
‘capacity
or incapacity of the assessor must be determined objectively –
one is not here concerned with perceptions
. . . “[i]ncapacity”
means an actual inability to fulfil functions, which inability can
be attributed to an inherent
physical or mental condition, or could
possibly also refer to a situation in which the assessor is
physically prevented from
attending the trial. However, “incapacity”
does not cover the situation where the assessor has simply lost
interest.
. .’.
[4]
Prima facie when a decision is entrusted to a tribunal consisting of
more than one person, every member of that tribunal should
take part
in the decision. If the court is not properly constituted then its
verdict and consequently its sentence are irregularities
that cannot
be waived by an accused person.
[5]
S v Jeke [2012] ZAGPJHC 153; 2012 JDR 1551 JDR (GSJ); [2013] JOL
29983 (GSJ).
[6]
S v Matakati & others
[2007] ZAWCHC 2006
(9) BCLR 1117 (N);
[7]
S v Khumalo 2006 (9) BCLR 1117 (N).
[8]
True Motives 84 (Pty) Ltd v Mahdi & another
[2009] ZASCA 4
;
2009
(4) SA 153
(SCA); 2009 7 BCLK 712 (SCA);
[2009] 2 All SA 548
(SCA)
para 100 cited with approval by the Constitutional Court in
Turnbull-Jackson v Hibiscus Coast Municipality
2014 (6) SA 592
(CC)
para 55.
[9]
S v Petersen & another
1998 (2) SACR 311
(C) at 312b-h; S v
Gayiya
[2016] ZASCA 65
;
2016 (1) SACR 165
(SCA) para 6.