Lubisi v S (CA&R114/2021) [2021] ZAECGHC 96 (6 October 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: CA&R114/2021

In the matter between:

DUMANI

LUBISI

Appellant

And

THE

STATE

Respondent

JUDGMENT

BESHE J:

[1] The appellant was arraigned in the Regional Court, East London for murder. At the conclusion of the trial, he was convicted as charged and sentenced to twelve (12) years imprisonment. With the leave of the court a quo, he is now appealing against both the conviction and the sentence.

[2] The appeal is mainly premised on the ground that the court that convicted the appellant was not properly constituted for want of compliance with the provisions of Section 93ter (1) of the Magistrates’ Courts Act.[1] This section provides that:

“93ter Magistrate may be assisted by assessor

(1) The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice ̶

(a) before any evidence has been led; or

(b) in considering a community-based punishment in respect of any person who has been convicted of any offence summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may in his discretion summon one or two assessors to assist him.” [my emphasis]

[3] It is common cause between the parties that the record of proceedings in the court a quo does not reflect that the provisions of Section 93ter (1) were dealt with. It can be safely assumed, until proved otherwise, that the appellant was not given the opportunity to indicate what his attitude was to the appointment of assessors by the presiding officer. The appellant was tried by the Regional Magistrate sitting alone.

[4] So, the issue for determination in this appeal is whether the appellant was tried and convicted by a properly constituted court.

[5] As would appear from a number of previously decided cases, Section 93ter (1) is peremptory in proceedings serving before the Regional Court in which the accused is charged with murder. See S v Gayiya[2] and authorities quoted therein. Recently in this division this issue was dealt with in two other matters. In S v Langalitshoni[3] and S v Papiyana and Another.[4] In both matters, it was once again confirmed that the provisions of Section 93ter are peremptory and that failure to comply therewith is fatal to the proceedings.[5]

[6] It is therefore clear that the court that convicted the appellant was not properly constituted. The conviction and the sentence that followed falls to be set aside.

[7] Accordingly, the appeal must succeed with the following order being issued:

The appeal succeeds, the conviction and the sentence that followed are set aside.

N G BESHE

JUDGE

OF THE HIGH COURT

RUGUNANAN

J

I agree.

M S RUGUNANAN

APPEARANCES:

For the Appellant : Adv: D P Geldenhuys

Instructed by : LEGAL

AID SOUTH AFRICA

69 High Street

GRAHAMSTOWN

For the respondent : Adv: M M van Rooyen

Instructed by : DIRECTOR OF

PUBLIC PROSECUTIONS

94 High Street

Date heard : 6 October 2021

Date Delivered : 6 October 2021

[1] Act 32 of 1944.

[2] 2016 (2) SACR 165 SCA.

[3] 2020 (3) SACR 65 ECM.

[4] 2021 (2) SACR 372.

[5] See Papiyana supra at paragraph [10], Langalitshoni supra paragraph [12].