Mbatha v S (AR 348/2018) [2018] ZAKZPHC 57 (25 October 2018)

Mbatha v S (AR 348/2018) [2018] ZAKZPHC 57 (25 October 2018)

The court found that the regional court was not properly constituted as it failed to sit with assessors in a murder trial, and there was no evidence that the appellant had been informed of his right to dispense with assessors. This omission constituted a material irregularity. The statutory requirement for assessors is peremptory, and the absence of any record of discussion with the accused regarding assessors rendered the proceedings invalid. The respondent conceded the irregularity, and the court held that both the conviction and sentence must be set aside as incompetent.

Citation
[2018] ZAKZPHC 57
Parties
Appellant: Msizi Mbuyiselwa Mbatha; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
25 October 2018
Case Number
AR 348/2018
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From Regional Court
Outcome
Appeal upheld. Conviction and sentence set aside. Appellant to be released from custody immediately.
Judges
Jappie, Mbatha
Legal Topics
Murder, Appointment of Assessors, Irregularity in Trial, Constitution of Court
Criminal Law Civil Procedure Murder Appointment of Assessors Irregularity in Trial Constitution of Court

Case Brief

Summary, issues, holding and outcome

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Parties

Msizi Mbuyiselwa Mbatha

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From Regional Court

Legal Issues

  1. 1 Whether the regional court was properly constituted in terms of Section 93ter(1) of the Magistrate's Court Act when it did not sit with assessors in a murder trial.
  2. 2 Whether the accused was given an opportunity to elect for the trial to proceed without assessors.
  3. 3 Whether the failure to appoint assessors constitutes a material irregularity warranting the setting aside of conviction and sentence.

Ratio Decidendi

The court found that the regional court was not properly constituted as it failed to sit with assessors in a murder trial, and there was no evidence that the appellant had been informed of his right to dispense with assessors. This omission constituted a material irregularity. The statutory requirement for assessors is peremptory, and the absence of any record of discussion with the accused regarding assessors rendered the proceedings invalid. The respondent conceded the irregularity, and the court held that both the conviction and sentence must be set aside as incompetent.

Court Disposition

Appeal upheld. Conviction and sentence set aside. Appellant to be released from custody immediately.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.