Ndawonde and Another v S (A107/2018) [2019] ZAGPJHC 61 (4 March 2019)
- Citation
- [2019] ZAGPJHC 61
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright, Wanless
- Case number
- A107/2018
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright, Wanless
- Case number
- A107/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the provisions of section 93ter of the Magistrates' Courts Act are peremptory in murder trials before a regional court. The purported waiver of assessors by the appellants, even if valid, was made too late in the proceedings and did not cure the irregularity. The judicial officer failed to administer the required oath to assessors before the trial, resulting in a fatal procedural irregularity. Following the precedent in S v Gayiya, the appeals must be upheld and the convictions and sentences set aside. The court made no finding on whether the appellants should or could be retried.
Court disposition
Appeals upheld; convictions and sentences set aside.
Orders
- The appeals of both appellants against their convictions and sentences on both counts are upheld.
- The convictions and sentences on both counts are set aside.
02
Material facts
Parties
Ndawonde, Justice
Appellant Counsel: Adv W RobertseChinuze, Fernando
Appellant Counsel: Adv G Y SidwellThe State
Respondent Counsel: Adv K T Ngubane03
Procedural history
Posture
Criminal Appeal / Appeal Against Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the trial court erred by proceeding without assessors in a murder trial.
- 02
Whether the purported waiver of assessors by the appellants was valid and timely.
- 03
Whether the convictions and sentences should be set aside due to non-compliance with section 93ter of the Magistrates' Courts Act.
Party arguments
- Applicant
- The appellants argued that their trial was irregular because the presiding magistrate proceeded without assessors, contrary to the mandatory provisions of section 93ter of the Magistrates' Courts Act. They contended that any waiver of assessors was not properly canvassed with them and, in any event, occurred too late in the proceedings. As a result, their convictions and sentences should be set aside.
- Respondent
- The respondent maintained that the appellants' legal representatives indicated assessors were not necessary and that this constituted a valid waiver. The respondent argued that the trial was conducted fairly and that the convictions and sentences should stand.
05
Court’s reasoning
Legal principles
- 01
Magistrates' Courts Act 32 of 1944, section 93ter
Section 93ter of the Magistrates' Courts Act requires that, in murder trials before a regional court, the judicial officer must be assisted by two assessors unless the accused requests otherwise. The assessor(s) must be sworn in before the trial commences.
- 02
S v Gayiya 2016 (2) SACR 165 (SCA)
A purported waiver of the right to assessors must be valid and timely; a late waiver does not cure non-compliance with the statutory requirement.
- 03
R v Matonsi 1958 (2) AD 450
The extent to which an accused's views on assessors must be canvassed by their legal representatives depends on the circumstances, but the statutory requirements remain peremptory.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the provisions of section 93ter of the Magistrates' Courts Act are peremptory in murder trials before a regional court. The purported waiver of assessors by the appellants, even if valid, was made too late in the proceedings and did not cure the irregularity. The judicial officer failed to administer the required oath to assessors before the trial, resulting in a fatal procedural irregularity. Following the precedent in S v Gayiya, the appeals must be upheld and the convictions and sentences set aside. The court made no finding on whether the appellants should or could be retried.
Obiter and limits
- The court declined to make a finding on the possibility of a retrial for the appellants.
- The leeway afforded to legal representatives in canvassing the need for assessors with their clients may vary, but statutory requirements must be strictly observed.
Court disposition
Appeals upheld; convictions and sentences set aside.
- The appeals of both appellants against their convictions and sentences on both counts are upheld.
- The convictions and sentences on both counts are set aside.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
LOCAL SEAT, JOHANNESBURG
CASE NO: A 107/2018
DPP REF: 10/2/5/1 – (2018/103)
DATE: 4 MARCH 2019
In the matter between: NDAWONDE, JUSTICE CHINUZE, FERNANDO
FIRST APPELLANT
SECOND APPELLANT and
THE STATE
RESPONDENT
JUDGMENT
WRIGHT J
1. The two appellants were each tried, convicted and sentenced to life imprisonment on two counts of murder. They appeal their convictions
and sentences as of right. The presiding regional magistrate sat without assessors.
2. Under section 93ter of the Magistrates’ Courts Act 32 of 1944, where 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.”
3. During the evidence of the first state witness, the prosecutor asked the court to “clarify” the question of lack of assessors. The legal representatives for both appellants indicated that assessors were not necessary. It would appear from the record that, at least when the prosecutor raised the question of assessors, neither legal representative asked his or her client about the need for assessors. Whether or not the appellants were asked about assessors by their lawyers at an earlier stage is not known. Given the circumstances of this case, it is in my view not necessary to go into the extent to which the appellants’ views needed to be canvassed by their lawyers and, concomitantly the leeway allowed the lawyers to run the defences as they saw fit. See R v Matonsi 1958 (2) AD 450 at 455 – 458.
4. In my view, the purported waiver of the rights of the appellants, even if otherwise valid, and I make no finding thereon, came too late in the proceedings. See S v Gayiya 2016(2) SACR 165 SCA. The provisions of section 93ter are peremptory. Under section 93ter (3) the judicial officer is required to administer an oath to the assessor or assessors before the trial.
5. In Gayiya the SCA left their order at simply upholding the appeals and setting aside the convictions and sentences.
6. I make no finding on whether or not the appellants should or could be re-tried.
7. I propose the following order:-
ORDER
1. The appeals of both appellants against their convictions and sentences on both counts are upheld and their convictions and sentences on both counts are set aside.
WRIGHT
J
WANLESS
AJ
I agree
It is so ordered
Appearances: On behalf of Appellant 1 Adv W Robertse 079 191 3105 On behalf of Appellant 2: Adv G Y Sidwell 082 920 2950 Instructed by: Legal Aid SA On behalf of the state: Adv K T Ngubane Instructed by: DPP 011 220 4207
Date of Hearing: 4 March 2019 Date of Judgment: 4 March 2019
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