S v Khambule (203/04) [2005] ZANWHC 4 (1 January 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 203/04

In the matter between:

SAMUEL

MXETISI KHAMBULE APPELLANT

AND

THE

STATE RESPONDENT

CRIMINAL

APPEAL

MMABATHO

HENDRICKS J & TLHAPI

AJ

JUDGMENT

TLHAPI AJ:

[1] The Appellant was convicted of murder on 12 September 2002 by the Regional Court sitting at Mankwe. He was sentenced on 17 September 2002 to 18 (eighteen), years imprisonment and was declared unfit to possess a firearm in terms of section 12 of Act 75 of 1969.

[2] The Appellant sought leave to appeal against his conviction and sentence. He was only granted leave to appeal against sentence by the Learned Magistrate on 8 July 2004. On 28 July 2004 the Appellant petitioned the Judge President of this Court for leave to appeal against the conviction. The petition was granted by Landman J, on 25 March 2005.

[3] The appeal came before Hendricks J and I on 24 June 2005. The conviction and sentence were set aside. Reasons were reserved and these now follow:

[4] The appeal revolves around the following grounds:

Ad Conviction

4.1 That the Learned Magistrate failed to consider the appointment of assessors in this case as provided in the proviso contained in section 93 ter (1) of the Magistrates’ Court Act 32 of 1944 as amended by section 19 of the Magistrates’ Court Amendment Act 118 of 1999.

4.2 That the proviso contained in Section 93ter (1) of the Magistrates’ Court Act, supra, was peremptory, and that the Learned Magistrate erred in failing to appoint two assessors to assist him in the murder trial of the Appellant. The Learned Magistrate also failed to advise the Appellant of his right to elect to proceed in the absence of assessors and of the Magistrate’s right to exercise his discretion to overrule such choice in the interest of justice.

4.3 The Learned Magistrate failed and/or neglected to deal with the issue of the assessors in its judgment when it was brought up during the application for condonation and leave to appeal against conviction and sentence and that such neglect or failure amounted to a fatal irregularity, so gross as to vitiate the proceedings.

There were other grounds of appeal based on the merits and sentence which were not considered by us when the conviction and sentence were set aside.

[5] The Respondent conceded that non-compliance with the proviso contained in section 93 ter (1) of the Magistrates’ Court Act 32 of 1944 as amended, was fatally irregular, which vitiated the proceedings and that the conviction and sentence should be set aside. The Respondent submitted that the matter be referred back for a trial de novo before another Magistrate.

[6] The Respondent did not respond to the other grounds of appeal on the merits and sentence raised by the Appellant.

[7] What has to be considered is whether these irregularities are so fatal as to vitiate the whole proceedings. The proviso to section 93 ter (1) of the Magistrates’ Courts Act, supra, is couched in mandatory language. It reveals “the judicial officer shall be assisted by two assessors’. (My underlining)

7.1 Section 93 ter (1) of the Magistrates’ Court Act 32 of 1944 as amended provides that a judicial officer at any trial before evidence is led or before the court has to consider a community-based punishment may appoint an assessor/s to assist at such trial, however, the proviso contained in such provision obliges the judicial officer before whom an accused person appears on a charge of murder, to appoint two assessors to assist him unless the accused elects not to have assessors, in which event the Magistrate is expected to exercise his discretion to appoint assessors in the interests of justice.

7.2 According to Section 93 ter (3) the assessors undertake under oath, and subject to their limitation in respect of issues of law, to give a “true verdict or a considered opinion. . . . . according to the evidence upon the issues tried or regarding the punishment. . .”

7.3 During the application for condonation and leave to appeal against conviction and sentence (at pages 34–37) of the record Ms Zwiegelaar, on behalf of the Appellant, drew the Magistrate’s attention to the fact that at the trial he had failed to appoint assessors as prescribed in the proviso contained in section 93 ter (1) Magistrates’ Court’s Act 32 of 1944 as amended. As a result of which the court had not been properly constituted at the trial. The Court was referred to a judgement of this Court dealing with the same issue.

7.4 The Magistrate did not deal with the issue of the appointment of assessors in his judgment. This in my view exacerbated the irregularity. The Magistrate should have been aware at that stage that the proceedings at the trial were irregular and should not have delayed in redressing the situation more especially where he was made aware of a decision of this Court relating to a similar matter. As at that time the accused had been in prison since September 2002. The Magistrate granted leave to appeal against sentence only.

7.5 Proceedings are fatally irregular where an accused person had in a trial been denied the opportunity to have his matter tried before a judicial officer, sitting with assessors as is required by law.

7.6 In an unreported decision of this Court in Charles Tau v Regional Magistrate Djadje (Bophuthatswana Provincial Division) case number 14/2003, Gura J stated that, even though section 93 ter (1) allowed a judicial officer to exercise his discretion, the whole of the proviso to this section was couched in mandatory language. He held that failure by the Magistrate in that case to appoint assessors amounted to a fatal irregularity so gross as to vitiate the proceedings. He relied in his judgment on the conclusion reached in S v SEJAPHALE 2000 (1) SACR 603 (T) where a Magistrate failed to advise the accused of his rights regarding evidence given at a bail hearing. At 604 I-J and 605 A-B, Jordaan J said that where one was dealing with a mandatory provision of an Act one should always bear in mind that the Legislature had a reason for it and that it was binding on the Court:-

“Waar ʼn hof ʼn diskresie mag hê by die nie nakoming van ʼn persoon se Konstitusionele regte. . . . . is die situasie totaal en al anders wanneer ʼn mens te make het met die gebiedende bepaling van ʼn Wet. Die Wetgewer het verkies om in gebiedende taal ʼn plig op ʼn hof te lê. . . . . . Ek is gebonde aan wat die artikel vir my sê.”

7.7 The importance of assessors was emphasized in S v Maphanga [2001] 4 All 657(W) where a Magistrate in a murder case appointed assessors in terms of section 93 ter (1) of the Magistrates’ Court Act 32 of 1944 as amended, referred the matter for review before the trial commenced regarding the role of lay-assessors during the trial. He was of the opinion that it was not practicable to use assessors in view of their limited participation and knowledge of the law and sought the Court’s guidance. According to Labe J Magistrates could not dispense with a mandatory requirement of the law, and at 660 G-J he said:

“….the learned Magistrate does not have to be satisfied that the assessors will be of assistance to him. It is sufficient if they may be of assistance to him. . . . . .The assessors should be regarded by the magistrate as being in a position analogous mutatis mutandis to lay jurors who also do not have any legal experience, but are in some jurisdictions regarded on proper instruction to be the sole arbiters of fact “

There is therefore a reason why the legislature deemed it necessary to appoint assessors to assist regional court Magistrates in murder cases. A magistrate is therefore duty bound to comply with the provisions of the Act in this regard.

7.8 Although a Magistrate is given a discretion to appoint assessors in any trial the proviso makes a distinction where it relates to a murder trial before a regional division. Where the accused person requests, that the trial proceed without assessors, the judicial officer is still expected to exercise his discretion to appoint assessors in the interest of justice. In the Maphanga case, supra, it was said that a Magistrate must not be too keen to dispense with the assistance of assessors.

7.9 In S v Naidoo 1962 (4) SA 348 (A) at 354 D-G Holmes J distinguished between irregularities which are so gross in nature as per se to vitiate the trial and irregularities of a lesser nature and with regard to the former, which is relevant in this case, he states:

“In such a case the Court of Appeal sets aside the conviction without reference to the merits. There remains thus neither a conviction nor an acquittal on the merits and the accused can be re-tried “

7.10 This brings us to the Respondent’s submission that the matter be referred back for trial de novo before a different Magistrate. In S v Balatseng 2005 (2) SACR 28 (Bophuthatswana Provincial Division), an application was made on behalf of the State that the matter be referred to a trial de novo, and this application was opposed. After several cases were considered the following was said at 39E-F by Mogoeng JP:

“such an order should be made only when all parties to the appeal agree that the accused be tried de novo. The only instance where it is permissible to order that a trial should start de novo without first securing the agreement of the accused is in the case of an automatic review “

7.10 Again at 39 G-I of the Balatseng case supra, Mogoeng JP stated that the provisions of section 322(1)(c) of the Criminal Procedure Act 51 of 1977 empowered the Court to make such an order as would serve the interests of justice. However, where the court had determined that the trial proceedings were irregular and where it was not necessary for consideration of the merits of such case, the Court would not order a trial de novo in the absence of an agreement by the parties to the appeal. In this way the accused would be afforded the opportunity to raise such defence/s he may wish to raise at a retrial

.

The Court was not made aware that an agreement had been secured by the parties.

7.11 I am also of the view that even though no submissions were made regarding an agreement, the decision to re-try the Appellant in this instance rests in the hands of the Respondent.

In the premises

1. The appeal is upheld.

2. The conviction and sentence is set aside.

______

V

V TLHAPI

ACTING

JUDGE OF THE HIGH COURT

I agree

R

D HENDRICKS

JUDGE

OF THE HIGH COURT

10