Lewis v S (A11/2008) [2008] ZAWCHC 244 (15 August 2008)

Lewis v S (A11/2008) [2008] ZAWCHC 244 (15 August 2008)

The court held that the absence of both assessors during part of the trial constituted a fatal irregularity, as every member of the fact-finding tribunal must participate in the consideration of the decision. The magistrate did not have the power to proceed without the assessors, as the circumstances did not fall within the exceptions provided by section 147 of the Criminal Procedure Act. Consequently, the conviction and sentence were set aside. The court declined to order a trial de novo, leaving the decision to prosecute to the Director of Public Prosecutions.

Citation
[2008] ZAWCHC 244
Parties
Appellant: Clive Desmond Lewis; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 August 2008
Case Number
A11/2008
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
Olivier, Moosa
Legal Topics
Irregularity in Trial, Assessors Absence, Setting Aside Conviction, Magistrates Court Act, Criminal Procedure Act
Criminal Law Civil Procedure Irregularity in Trial Assessors Absence Setting Aside Conviction Magistrates Court Act Criminal Procedure Act

Case Brief

Summary, issues, holding and outcome

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Parties

Clive Desmond Lewis

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the absence of assessors during part of the trial constituted a fatal irregularity.
  2. 2 Whether the magistrate had the power to proceed in the absence of assessors.
  3. 3 Whether the conviction and sentence should be set aside due to procedural irregularity.

Ratio Decidendi

The court held that the absence of both assessors during part of the trial constituted a fatal irregularity, as every member of the fact-finding tribunal must participate in the consideration of the decision. The magistrate did not have the power to proceed without the assessors, as the circumstances did not fall within the exceptions provided by section 147 of the Criminal Procedure Act. Consequently, the conviction and sentence were set aside. The court declined to order a trial de novo, leaving the decision to prosecute to the Director of Public Prosecutions.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence of the appellant are set aside.
  • It is for the Director of Public Prosecutions to decide whether the accused should be prosecuted.