Phakathi and Others v S (CA&R03/17, CA&R71/16, CA&R76/14) [2017] ZAECMHC 47 (29 June 2017)

Phakathi and Others v S (CA&R03/17, CA&R71/16, CA&R76/14) [2017] ZAECMHC 47 (29 June 2017)

The Supreme Court of Appeal has authoritatively held that section 93 ter(1) of the Magistrate's Courts Act 32 of 1944 is peremptory in murder trials before regional courts. The presiding magistrate must inform the accused of the requirement for two assessors and appoint them unless the accused requests that the trial proceed without assessors. In all three appeals, the magistrates failed to comply with this requirement: no assessors were appointed, and the accused were not informed of their rights. As a result, the courts were not properly constituted, and the proceedings are a nullity. The convictions and sentences imposed in these matters must be set aside.

Citation
[2017] ZAECMHC 47
Parties
Appellant: Mkulekeleni Richman Phakathi; Appellant: Bongile Mlonyeni; Appellant: Sonwabo Linyana; Respondent: The State
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
29 June 2017
Case Number
CA&R03/17, CA&R71/16, CA&R76/14
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeals succeed. All convictions and sentences are set aside due to nullity of proceedings.
Judges
RWN Brooks, FBA Dawood
Legal Topics
Constitution of Regional Court, Appointment of Assessors, Minimum Sentences, Nullity of Proceedings
Criminal Law Civil Procedure Constitution of Regional Court Appointment of Assessors Minimum Sentences Nullity of Proceedings

Case Brief

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Parties

Mkulekeleni Richman Phakathi

Appellant

Bongile Mlonyeni

Appellant

Sonwabo Linyana

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the regional courts were properly constituted in terms of section 93 ter(1) of the Magistrate's Courts Act 32 of 1944 when trying murder charges.
  2. 2 Whether failure to appoint assessors rendered the proceedings a nullity.
  3. 3 Whether convictions and sentences imposed in improperly constituted courts should be set aside.

Ratio Decidendi

The Supreme Court of Appeal has authoritatively held that section 93 ter(1) of the Magistrate's Courts Act 32 of 1944 is peremptory in murder trials before regional courts. The presiding magistrate must inform the accused of the requirement for two assessors and appoint them unless the accused requests that the trial proceed without assessors. In all three appeals, the magistrates failed to comply with this requirement: no assessors were appointed, and the accused were not informed of their rights. As a result, the courts were not properly constituted, and the proceedings are a nullity. The convictions and sentences imposed in these matters must be set aside.

Court Disposition

Appeals succeed. All convictions and sentences are set aside due to nullity of proceedings.

Orders

  • In Mkulekeleni Richman Phakathi v The State (CA&R03/2017), the appeal succeeds; all convictions and sentences under case RCNGQ19/15 are set aside; the appellant is to be released from custody with immediate effect.
  • In Bongile Mlonyeni v The State (CA&R71/2016), the conviction and sentence under case RCPS05/2014 are set aside.