S v Gqeba and Others (120/88) [1989] ZASCA 60; [1989] 2 All SA 425 (A) (24 May 1989)

S v Gqeba and Others (120/88) [1989] ZASCA 60; [1989] 2 All SA 425 (A) (24 May 1989)

The Supreme Court of Appeal held that the discharge of the assessor, Mr van Rensburg, was not authorised by section 147(1) of the Criminal Procedure Act. The assessor's inability to act must relate to incapacity to perform his duties, not merely a desire to be discharged for personal compassionate reasons. The trial judge's ruling was based on the assessor's wish to be with his ill daughter, not on any opinion regarding his actual inability to act as assessor. Consequently, the court was not properly composed after the discharge, and the convictions and sentences imposed by the trial court cannot stand. The accused's consent to the continuation of the trial before two members of the court...

Citation
[1989] ZASCA 60
Parties
Appellant: Mzwandile Gqeba; Appellant: Whanto Silinga; Appellant: Lundi Wana; Appellant: Thembinkosi Pressfeet; Appellant: Mzwandile Mninzi; Appellant: Monde Tingwe; Appellant: Thozamile Bacela; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 May 1989
Case Number
120/88
Procedural Posture
Criminal Appeal / Appeal on Special Entry Regarding Irregularity in Trial Composition
Outcome
Appeal allowed; convictions and sentences set aside.
Judges
E M Grosskopf, Steyn, F H Grosskopf
Legal Topics
Trial Composition, Assessor Discharge, Criminal Procedure Act Section 147, Death Sentence, Irregularity in Proceedings
Criminal Law Civil Procedure Trial Composition Assessor Discharge Criminal Procedure Act Section 147 Death Sentence Irregularity in Proceedings

Case Brief

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Parties

Mzwandile Gqeba

Appellant

Whanto Silinga

Appellant

Lundi Wana

Appellant

Thembinkosi Pressfeet

Appellant

Mzwandile Mninzi

Appellant

Monde Tingwe

Appellant

Thozamile Bacela

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal on Special Entry Regarding Irregularity in Trial Composition

Legal Issues

  1. 1 Whether the discharge of an assessor during the trial was authorised by section 147(1) of the Criminal Procedure Act.
  2. 2 Whether the continuation of the trial before the remaining members of the court constituted an irregularity.
  3. 3 Whether the convictions and sentences imposed by a court not properly composed can stand.

Ratio Decidendi

The Supreme Court of Appeal held that the discharge of the assessor, Mr van Rensburg, was not authorised by section 147(1) of the Criminal Procedure Act. The assessor's inability to act must relate to incapacity to perform his duties, not merely a desire to be discharged for personal compassionate reasons. The trial judge's ruling was based on the assessor's wish to be with his ill daughter, not on any opinion regarding his actual inability to act as assessor. Consequently, the court was not properly composed after the discharge, and the convictions and sentences imposed by the trial court cannot stand. The accused's consent to the continuation of the trial before two members of the court...

Court Disposition

Appeal allowed; convictions and sentences set aside.

Orders

  • The appeal is allowed.
  • The convictions and sentences of the appellants are set aside.