Hlatshwayo and Another v S (AR 354/20) [2022] ZAKZPHC 8 (28 March 2022)

Hlatshwayo and Another v S (AR 354/20) [2022] ZAKZPHC 8 (28 March 2022)

The trial court failed to properly constitute itself in accordance with section 93ter of the Magistrate's Court Act. The record does not show that the accused were informed of their right to have assessors or that they made a positive, informed request to proceed without assessors. The statutory requirements demand a clear explanation and a recorded, knowledgeable waiver of the right to assessors. The absence of such explanation and request constitutes a fatal irregularity, rendering the trial court improperly constituted. Consequently, the convictions and sentences cannot stand and must be set aside.

Citation
[2022] ZAKZPHC 8
Parties
Appellant: Siyabonga Hlatshwayo; Appellant: Sibibusiso Mdlole; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 March 2022
Case Number
AR 354/20
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; convictions and sentences set aside.
Judges
Bezuidenhout, Ploos van Amstel
Legal Topics
Murder Trial, Constitution of Court, Section 93ter Magistrates Court Act, Waiver of Rights, Proper Explanation of Rights
Criminal Law Civil Procedure Murder Trial Constitution of Court Section 93ter Magistrates Court Act Waiver of Rights Proper Explanation of Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Siyabonga Hlatshwayo

Appellant

Sibibusiso Mdlole

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court was properly constituted in terms of section 93ter of the Magistrate's Court Act.
  2. 2 Whether the accused were properly informed of their rights regarding assessors.
  3. 3 Whether the accused made a valid request to proceed without assessors.

Ratio Decidendi

The trial court failed to properly constitute itself in accordance with section 93ter of the Magistrate's Court Act. The record does not show that the accused were informed of their right to have assessors or that they made a positive, informed request to proceed without assessors. The statutory requirements demand a clear explanation and a recorded, knowledgeable waiver of the right to assessors. The absence of such explanation and request constitutes a fatal irregularity, rendering the trial court improperly constituted. Consequently, the convictions and sentences cannot stand and must be set aside.

Court Disposition

Appeal upheld; convictions and sentences set aside.

Orders

  • The appellants’ appeals are upheld.
  • Both their convictions and sentences are set aside.