Mncwengi and Others v S (395/2018) [2019] ZASCA 135; 2019 (2) SACR 583 (SCA) (1 October 2019)

Mncwengi and Others v S (395/2018) [2019] ZASCA 135; 2019 (2) SACR 583 (SCA) (1 October 2019)

The Supreme Court of Appeal held that the trial court erred in applying s147 of the Criminal Procedure Act to the absence of the assessor, Ms Solomons. The statutory provision requires an objective inability to act, such as physical or mental incapacity, not mere unwillingness or financial hardship. Ms Solomons absconded due to financial distress and a new appointment, but there was no evidence of incapacity. The continuation of the trial before the remaining members constituted a procedural irregularity, as the court was not properly constituted throughout the proceedings. This irregularity vitiated the trial, and the convictions and sentences must be set aside. The conduct of the...

Citation
[2019] ZASCA 135
Parties
Appellant: Mziwabantu Madiba Mncwengi; Appellant: Mzimasi Madiba Mncwengi; Appellant: Buyelwa Nokwandisa Mncwengi; Appellant: Lumko Bambalaza; Appellant: Xolani Makapela; Appellant: Mawande Siboma; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2019
Case Number
395/2018
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Sentences From the Western Cape Division of the High Court, Cape Town
Outcome
Appeal upheld; convictions and sentences set aside.
Judges
Petse, Saldulker, Van der Merwe, Nicholls, Hughes
Legal Topics
Trial Composition, Assessor Incapacity, Procedural Irregularity, Fair Trial Rights
Criminal Law Civil Procedure Trial Composition Assessor Incapacity Procedural Irregularity Fair Trial Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Mziwabantu Madiba Mncwengi

Appellant

Mzimasi Madiba Mncwengi

Appellant

Buyelwa Nokwandisa Mncwengi

Appellant

Lumko Bambalaza

Appellant

Xolani Makapela

Appellant

Mawande Siboma

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Sentences From the Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the trial court was authorised under s147(1) of the Criminal Procedure Act 51 of 1977 to continue the trial in the absence of one assessor.
  2. 2 Whether the absence of the assessor constituted a procedural irregularity that vitiated the proceedings.
  3. 3 Whether the convictions and sentences should be set aside due to improper constitution of the trial court.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in applying s147 of the Criminal Procedure Act to the absence of the assessor, Ms Solomons. The statutory provision requires an objective inability to act, such as physical or mental incapacity, not mere unwillingness or financial hardship. Ms Solomons absconded due to financial distress and a new appointment, but there was no evidence of incapacity. The continuation of the trial before the remaining members constituted a procedural irregularity, as the court was not properly constituted throughout the proceedings. This irregularity vitiated the trial, and the convictions and sentences must be set aside. The conduct of the...

Court Disposition

Appeal upheld; convictions and sentences set aside.

Orders

  • The appeals are upheld.
  • The convictions and sentences of all the appellants are set aside.