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[2014] ZAWCHC 216
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S v Mncwengi and Others (SS02/2013) [2014] ZAWCHC 216 (19 November 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: SS02/2013
In
the matter between:
THE
STATE
and
MZIWABANTU
MADIBA
MNCWENGI Accused
1
MZIMASI
MADIBA
MNCWENGI Accused
2
BUYELWA
NOKWANDISA
MNCWENGI Accused
3
LUMKO
BAMBALAZA Accused
4
XOLANI
MAKAPELA Accused
5
MAWANDE
SIBOMA Accused
6
Judgment
:
Boqwana, J
Coram:
Boqwana,
J
Assessor:
Mr H Swart
For
the State:
Adv. T
Ntela
NPA
For
Accused 1
:
Adv. J Losch
Legal
Aid
For
Accused 2:
Adv. A
Caiger
Legal
Aid
For
Accused 3:
Adv. J
van Rensburg
Legal
Aid
For
Accused 4:
Adv A O`
Neill
Legal
Aid
For
Accused 5
:
Adv PL Colenzo
Legal
Aid
For
Accused 6:
Adv C
Givati
Legal
Aid
First
day of Hearing
:
13 August 2013
Last
day of Hearing:
03
November 2014
Date
of Judgment
: 19
November 2014
JUDGMENT
BOQWANA,
J:
The
accused were arraigned for trial before this Court on an indictment
consisting of altogether 8 counts namely; four counts of
kidnapping
count 1, 2, 3 and 4; one count of assault with the intent to do
grievous bodily harm count 5 and three counts of murder
counts 6, 7
and 8 read with section 51 of the Criminal Law Amendment Act 105 of
1977. It is alleged that the killing of the deceased
was committed by
a group of persons in the execution of a common purpose.
The
State alleges in respect of count 1, 2 and 3 that the accused during
the evening of Wednesday 14 March 2012 and at or near Harare
Khayelitsha wrongfully and intentionally deprived Sivuyile Rola,
Luxolo Mpontshane and Mabhuti Matinise of their freedom of mov
ement
by ty ing their hands with wire and keeping them against their will.
In respect of count 4 it is alleged that the accused
on the same date
and evening wrongfully and intentionally dep rived Mphuthumi Nobanda
herein after referred to as Mphuthumi, of
his freedom by keeping him
against his will and in respect of count 5 that the accused on the
same date and evening wrongfully
and intentionally assaulted
Mphuthumi Nobanda with blunt objects with the intention to do
grievous bodily harm.
In
respect of count 6, 7 and 8 the State alleges that the accused on the
same date and evening and at or near Macassar Sand Mines
at Macassar
in the district of Khayelitsha wrongfully and intentionally killed
Sivuyile Rola (hereinafter referred to as Mshwele
and also known as
Vido'), Luxolo Mpontshane ('hereinafter referred to as Luxolo'),
Mabhuti Matinise ('hereinafter referred to as
Mabhuti'), all male
persons by hitting them with blunt objects. All the acc used were
legally represented. They all pleaded not
guilty to all the charges.
Only accused gave a plea explanation.
The
trial commenced on 14 August 2013 with the Court constituted of the
Judge and two assessors Mr H Swart and Ms S Solomons. After
the trial
had run for over seven months and in the middle of a
trial-within-a-triaI received a medical certificate from a certain
Dr
P C Ndomile on 17 March 2014 stating that Ms Solomons was booked off
sick due to acute anxiety disorder from 17 to 19 March
2014. On the
same day of 17 March 2014 Ms Solomons contacted the Court's registrar
and advised her that she had collapsed the previous
week end and
could not attend court for the period she was booked off sick.
The
matter was accordingly postponed to Monday 24 March 2014 also taking
into account the fact that counsel for accused 5 had been
involved in
another matter that same week.
The
office of the registrar attempted to contact Ms Solomons for the
duration of that week to ascertain the nature of her sickness
and the
period of her envisaged absence to no avail. On Monday 24 March 2014
Ms Solomons did not attend the trial proceedings,
the registrar
attempted to contact her on the telephone numbers that she had
provided to no avail. An attempt was made to contact
the magistrate's
court in Upington where she was suspected to be. Ms Solomons had
indicated in the past week that she was offered
a position to act as
a magistrate in Upington and requested the presiding Judge to release
her from the trial which request was
declined. Indeed she was found
to be at the Upington Magistrate's Court where she was appointed as
an acting magistrate. Had it
not been for the attempts made by this
Court to locate Ms Solomons this Court would not have known of her
whereabouts as she f
ailed to answer her calls.
As
an explanation for her absence Ms Solomons furnished this Court with
a letter requesting to be excused from further attendance
of the
proceedings permanently for the following reasons:
1.
When she was requested to act as
assessor it was communicated to her that the estimated duration of
the trial would be six to eight
weeks. She was not aware that the
matter wouId run for such a lengthy period, it having run and having
been more than six months
on the court roll. It is not clear from her
letter who communicated this to her as it certainly was not an
instruction from this
court.
2.
She is a practicing attorney. In the
interim she has lost income, clients and financially is not doing
well. She was offered several
positions which she had declined
however, when she was offered a position to act as a magistrate in
the Upington District Court
she stressed, panicked and thought about
her four children and her financial difficulties as well as her
future in the legal profession
and she decided to accept the job
offer.
She
stated that she did not take this decision in isolation but with due
regard to the rights of the other parties involved in the
matter that
is the accused, the defence, advocates, the State prosecutor . She
further advised that her decision was based on the
fact that she was
aware that there were other trials in which only one assessor was
sitting and her wish was for the matter to
proceed in her absence. In
her view, the right s of the accused would not be affected as there
was still one assessor remaining.
She apologised for the manner in
which she dealt with the situation and pleaded to all interested and
relevant parties to accept
her reasons and absence from the case.
When
it was apparent that Ms Solomons would no longer avail herself to
continue with the trial the presiding Judge requested the
State and
defence counsel to present argument on the effect of her absence in
the proceedings in light of sect ion 147 of the
Criminal Procedure
Act 51 of 1977
and the prevailing case law. The matter was argued
extensively. The State submitted that
section 147
was not applicable
in this instance as it dealt with incapacity or death of the
assessor. It however submitted that taking into
account that no
prejudice would be suffered by any of the parties the Court may
release the assessor from her duties and with reference
to the
accused rights to a fair trial the trial shouId not start
de novo
as it had aIready run for a lengthy period, some of the accused
are in custody and witnesses might have to be recalled.
There
was consensus from defence counsel acting on behalf of accused 1, 2,
3 and 4 that it wouId not be in the interest of justice
for the trial
to start
de novo
taking into account the rights of the accused
to a f air trial and balancing those with the interests of the
society and the administration
of justice. The most common view held
by the respective counsel on behalf of the accused was that the
accused would be far more
prejudiced if the trial were to start
de
novo.
At the request of counsel for accused 5 and 6, the Court
requested further particulars from Ms Solomons regarding her absence
and
requested release fr om the proceedings. She responded on 14
April 2014 by confirming that she would not be able to further attend
in the matter due to her decision that was taken on 17 March 2014
that she had signed a contract on 17 March 2014 and she was currently
working as an acting magistrate and was bound by the contract. She
stated that she could not breach that contract as it may have
an
adverse impact on her future in the magistrate's profession.
The
matter was argued further on receipt of Ms Solomons' further
representations. Counsel for accused 5 and 6 were doubtful as to
whether the Court was empowered to release Ms Solomons as an assessor
based on the reasons that she had put forward. Counsel for
accused 5
suggested that arrangements could be made for Ms Solomons in her
position as a n acting magistrate to be seconded in
terms of the
Public Service Act 1994 to complete the case as assessor. Having
considered Ms Solomons' letter and argument on this
issue, I directed
that the trial proceed in the presence of the remaining members of
the court and reserved reasons for later,
here follows my reasons.
The
Court in this matter was faced with untenable and a unique situation.
Although Ms Solomons letter was couched as a request to
be excused
from further attendance in the trial she had already made herself
absent and gave a clear indication that she would
not be able to
return. Effectively the decision I was faced with was not whether or
not to release her but to determine and give
direction on the status
of the trial and whether it was to proceed in her absence or be set
aside and proceed
de novo
before a newly constituted court.
Perhaps before I continue I should mention that the proposal made by
counsel for accused 5 was
not applicable in this case as the
provisions of the Public Service Ac t 1994, that he referred to
applied to permanent government
officers and are not applicable in
this instance. Furthermore, Ms Solomons had indicated that she was
unable to continue as assessor
in the trial. I must also state
that she was given an opportunity and was requested to address the
situation with the relevant
authorities in charge of her acting
appointment before she sent her final letter of 14 April 2014
confirming her inability to continue
sitting as an assessor in this
matter.
Paramount
to this Court when a decision was made was the fairness of the trial
to all the accused persons, the interest of justice,
the
administration of justice and the circumstances placed by Ms Solomons
before this Court regarding her absence and her inability
to continue
to act as an assessor going forward. The relevant provision that
deals with the assessor's inability to act in the
Criminal Procedure
Act is
section 147.
Section 147(1)
provides as follows:
"If an
assessor dies or in the opinion of the presiding judge becomes unable
to act as an assessor at any time during the 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 starts
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."
The
issue to be determined was whether the assessor became unable to act
within the purview of
section 147.
The meaning of the words 'unable
to act' has been deliberated in many cases. In
S v Malindi and
Others
1990( 1) SA 962
(A) Corbett CJ held that:
"The word
"unable", in the context of
section 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 read
S v Malindi
to limit inability to act to physical
or mental impairment. The list of ex amp les provided in that case
includes a situation where
an assessor is detained for an indefinite
period here or abroad. The detainment situation has nothing to do
with illness, it has
to do with a n unforeseen situation that
restricts an assessor from being physic ally able to act, such as his
or her detention
here or abroad which may be indefinite or permanent.
I venture to s ay that situations of the assessor's inability to act
are not
limited to physical sickness or mental impairment. Clearly,
any other situation that prevents the assessor from being physically
or mentally present to act as an assessor for an indefinite or
permanent period could constitute inability to act in my view. Each
case would need to be treated on its own facts.
It
is also important that in this Constitutional dispensation
section
147
is not mechanically interpreted, fairness of a trial to the
accused, policy considerations, interest and administration of jus
tice become important. The judge, in my view, should in the
circumstances balance all these factors in coming to an appropriate
decision. To support this view, I refer to a decision of
S v Jeke
2012 JDR 1551(GSJ) at para 15 in that case Mbha J said the following:
"Moreover
the peculiarities of the reason for the absence of the assessors
ought to be a crucial factor because any concept
of unable must be
fact specific an aspect addressed more fully hereafter. Furthermore,
sight must not be lost of the important
fact that the Ac t does give
a court discretion to formulate an op inion as to whether or not
under the circumstances prevailing
at the time it can be said that an
assessor is unable to act as an assessor. The proper formulation of a
n op inion about an inability
of an assessor to continue
participating implies more than a mechanical fact-finding process.
The magistrate unavoidably must make
a value choice informed by
policy considerations about the administration of justice and chiefly
about the avoidance of a failure
of justice. In
Malindi
the
policy choice excluded factors pertinent to grounds for recusal.
Furthermore, the approach I adopt in fact is informed by the
minority
in the judgment of MT Steyn JA in
S v Ggeba and Others
1989(3)
SA 712 (A) at 718-719 where an assessor sought, during a trial, to be
discharged on the ground that he wanted to be with
his only child, a
daughter, who was in hospital having been diagnosed with terminal
cancer. The learned judge referred to the
Oxford English
Dictionary Volume XI
definition of the word unable meaning
"not
able, not having ability or power to do or perform (undergo or
experience) something specified (chiefly of persons),"
and
after considering the emotional attachment that existed between the
assessor and his daughter he held that:
a)
The ability to pay proper attention to
judicial proceedings is essential for the due performance of a n
assessor's task; and
b)
Should an assessor become incapable of
paying such attention he would whilst such ability lasts be
unable
to act as an assessor. (emphasis
added)"
The
court in the
Jeke
matter was of the view that the approach
adopted by the minority decision in
S v Gqeba
,
supra,
fell
within what Corbett CJ had envisaged in
S v Malindi
,
supra,
when he spoke of an ability deriving from a mental condition or
any situation which physically prevented the assessor from attending
the trial. The majority in
Ggeba
found that the assessor was
released on compassion ate grounds and not on inability. In the
Jeke
matter the magistrate had formed an opinion that the assessors had
become unable to act based on a number of factors. Firstly,
the
withdrawal from the court of the services of the assessors after the
collapse of the pilot project in terms of which the lay
assessors had
been appointed as a result of a depleted budget. The magistrate found
that the collapse of the budget also collapsed
their ability to
serve, that is, as fulltime assessors.
Secondly
, claims by assessors f or court services would not be paid due to
their unavailability of budget. Thirdly, there were
no prospects of
the pilot project being resuscitated in the near future. Fourthly,
the magistrate could not cause the assessors
to continue to act at
his own expense. Fifthly, the court could not order the assessors'
participation at their own expense. It
followed that if a n assessor
cannot be compelled to attend then from the perspective of the
administration of justice such assessor
is unable to participate.
Finally, the trial was at a stage where the State had called their
last witness. The appeal court agreed
with the view taken by the
magistrate. Although that case dealt with
section 93
ter (11) (iii)
of the Magistrate's Court Act 32 of 1944 the principles adopted
therein are similar to those required by
section 147
of the
Criminal
Procedure Act.
>
The
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 factor, to order that the trial start
de
novo.
See paragraphs 15, 16, 18 and 19 of the
Jeke
decision.
Another
important decision with circumstances similar to those in the present
matter is that of
S v Matakati and Others
2007 ZAWCHC 328 (1
January 2008) which is a decision from this division by Ndita J. In
that case 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 legal practice
as an attorney was heavily
impacted to the point that he had been reported to the Law Society by
clients, magistrates were complaining
about his matters being
constantly postponed, he had lost clients and was unable to pay staff
salaries and other expenses, due
to income being severely affected.
Ndita J held in those circumstances at paragraph 8 that:
"The
consistent approach of the courts to the release of an assessor is
understandable as the issue of an accused having his
case considered
by a properly constituted forum is crucial and conflated with the
right to a fair trial. Indeed it would be most
undesirable to have
assessors willy-nilly deciding to be excused from trial when it
suited their purpose to serve. Neither should
an accused be
unnecessarily deprived of the benefits and safeguards arising out of
a trial with a judge and two assessors. However,
this issue is not
only a matter f or form, but also of substance as well because two
assessors can overrule a judge on the merits.
Each matter should of
course be decided on its merits. In the present matter, it is not a
question of Mr Godla willy-nilly deciding
to excuse himself, the
substantive reasons he has submitted clearly demonstrate that a lot
of injustice will result to his person,
legal firm and clients whose
cases he cannot attend to. For all it is worth, Mr Godla has, to his
detriment served far more than
the estimated duration of the trial.
That to his credit shows commitment. It is not only a question of his
compelling personal
reasons but also about justice being denied or
delayed to numerous clients whose cases he cannot attend."
What
makes the present matter slightly different from the
Matakati
matter is that unlike Mr Godla who requested to be released by the
court due to his compelling personal reasons Ms Solomons in
essence
deserted from her duties as an assessor without being formally
released by the judge albeit for reasons similar of Mr Godla
in the
Matakati
decision. While it is desirable that the trial should
be completed in the presence of all members who constituted the court
at
the beginning of the trial, unforeseen circumstances do arise.
Section 147
was introduced to deal with eventualities specified in
that provision that is death and inability to act as assessor. See
S
v Baleka and 4 Others
1988(4) SA 688 (T).
There
is also no mechanism available for a judge to force a member who has
made her intentions clear that she would not be returning
to continue
sitting as an assessor to do so. Letting that assessor go is not to
condone irresponsible behaviour but to focus the
Court on its primary
function which is to ensure that the rights of the accused are
protected and the administration of justice
is attained and not
compromised by the assessor's absence . A situation like the one
prevailing in this case enjoins the judge
not only to look at the
circumstances of the assessor but also to balance the rights of the
accused to a fair trial with the interests
and administration of
justice. I am in agreement with Ndita J's remark s in the Matakati
matter where she found that circumstances
like these call to question
whether a person under such emotional and mental distress would be
able to apply his or her mind fully
to the facts and the evidence.
Ndita
J held as follows at paragraph 11:
"Section 35
(3) of the Constitution of the Republic of South Africa, Act 108 of
1996 provides that every accused person has
a right to a fair trial.
In my view, the substantive right to a fair trial demands from a
trier of facts a complete presence of
the mind and being alive to the
facts presented at triaI. Whilst the
dicta
referred to above
reflect a commitment by the courts to the strict enforcement of
procedural safeguards aimed at ensuring a fair
triaI, it is in my
mind doubtfuI that in the circumstances of this case, the accused's
right to a fair trial will be better served
by the continued presence
of an assessor whose commitment to the trial is questionable."
She
went on to state that at paragraph 13:
"When
regard is had to the notion of basic fairness and justice, I am not
of the view that an assessor who lacks commitment
to a trial is
capable of delivering justice to a n accused. This renders him
incapable of functioning as such. Whilst acknowledging
that there has
been consistency in judicial decisions that the word "unable"
relates to the assessor's physical and mental
inability, I am of the
firm view that the dictum in Zuma ,
supra,
justifies that the
scope of section 147 include eventualities such as inability of the
part of an assessor to deliver just ice.
In my opinion, Mr Godla is
unable to act as an assessor due to his inability to deliver justice
to the accused in these proceedings.
Thus , I made the direction that
the assessor in this matter was unable to continue with the trial."
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.
Like
Ndita J, 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. The procedural
safeguards in the form of the provisions for
the appointment of assessor in
section 145
of the
Criminal Procedure
Act are
without a doubt designed to ensure a fair trial although such
a right is not listed in section 35(3) of the Constitution. As
Tshabalala
JP observed in
S v Khumalo
2006(9) BCLR 1117 (N) if
section 145 is a proceduraI safeguard then section 147 is a
Iimitation to the protection afforded by that
safeguard.
Section 147
of the
Criminal Procedure Act permits
a trial to be continued in the
absence of an assessor in certain specified circumstances.
Tshabalala
JP in
S v Khumalo,
supra,
emphasised the point that the
fact that there was only one assessor remaining should not be a
threat to the fairness of the trial
because in terms of
section
146(d)
of the
Criminal Procedure Act a
judge is obliged to give
reasons for the decision or findings of the assessor that is
remaining where there is a difference of
opinion. The court in
Khumalo
found that on the balance a significant threat to the
administration of justice would have resulted if the trial started
de
novo .
A similar situation would have prevailed in this matter.
Concluding
on this matter it might perhaps serve the legislature well to revisit
the heading of
section 147
of the
Criminal Procedure Act which
reads
"Death or incapacity of assessor"
as such wording
might be the reason the provision tends to be interpreted in narrow
terms. The language of the body of the section
itself however makes
no reference to incapacity but rather refers to a judge forming an
opinion that the assessor is unable to
act as an assessor which in my
view is clearly broader than the heading. For the reasons above I
directed that the trial proceed
in the presence of the remaining
members of the court being myself and Mr H Swart.
______________________
BOQWANA,
J