Ndawonde and Another v S (A107/2018) [2019] ZAGPJHC 61 (4 March 2019)
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...
Source-derived case information.
- Citation
- [2019] ZAGPJHC 61
- Parties
- Appellant: Ndawonde, Justice; Appellant: Chinuze, Fernando; Respondent: The State
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Judgment Date
- 4 March 2019
- Case Number
- A107/2018
- Procedural Posture
- Criminal Appeal / Appeal Against Conviction and Sentence
- Outcome
- Appeals upheld; convictions and sentences set aside.
- Judges
- Wright, Wanless
- Legal Topics
- Murder, Assessors in Criminal Trial, Waiver of Rights, Magistrates Courts Act, Conviction and Sentence
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndawonde, Justice
Appellant
Chinuze, Fernando
Appellant
The State
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the trial court erred by proceeding without assessors in a murder trial.
- 2 Whether the purported waiver of assessors by the appellants was valid and timely.
- 3 Whether the convictions and sentences should be set aside due to non-compliance with section 93ter of the Magistrates' Courts Act.
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.
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.
Full Case Text
Judgment text and source record
26 paragraphs
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