Dyantyi v S (CA&R71/15) [2017] ZAECMHC 28 (29 August 2017)

Dyantyi v S (CA&R71/15) [2017] ZAECMHC 28 (29 August 2017)

The court found that the regional magistrates' court was not properly constituted as required by section 93 ter (1) of the Magistrates’ Court Act, since there was no evidence that the appellant was informed of his right to have assessors present or to waive that right. This omission is a peremptory procedural requirement. As a result, the conviction and sentence imposed by the trial court are incompetent and must be set aside in terms of section 324 (a) of the Criminal Procedure Act. The respondent conceded this point, and the appeal was upheld.

Citation
[2017] ZAECMHC 28
Parties
Appellant: Mzoxolo Dyantyi; Respondent: The State
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
29 August 2017
Case Number
CA&R71/15
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside; appellant to be released immediately.
Judges
S M Mbenenge, F Y Renqe
Legal Topics
Murder, Constitution of Court, Assessors, Criminal Procedure Act, Transkeian Penal Code
Criminal Law Civil Procedure Murder Constitution of Court Assessors Criminal Procedure Act Transkeian Penal Code

Case Brief

Summary, issues, holding and outcome

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Parties

Mzoxolo Dyantyi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the regional magistrates' court was properly constituted in terms of section 93 ter (1) of the Magistrates’ Court Act when convicting the appellant of murder.
  2. 2 Whether the appellant was made aware of his right to have assessors present or to waive that right.
  3. 3 Whether the conviction and sentence are competent in light of the improper constitution of the trial court.

Ratio Decidendi

The court found that the regional magistrates' court was not properly constituted as required by section 93 ter (1) of the Magistrates’ Court Act, since there was no evidence that the appellant was informed of his right to have assessors present or to waive that right. This omission is a peremptory procedural requirement. As a result, the conviction and sentence imposed by the trial court are incompetent and must be set aside in terms of section 324 (a) of the Criminal Procedure Act. The respondent conceded this point, and the appeal was upheld.

Court Disposition

Appeal upheld; conviction and sentence set aside; appellant to be released immediately.

Orders

  • The appeal is upheld.
  • The conviction and sentence imposed by the Court a quo are set aside.