S v Malinga (388/86) [1987] ZASCA 42 (12 May 1987)

S v Malinga (388/86) [1987] ZASCA 42 (12 May 1987)

The Supreme Court of Appeal held that section 145(2) of the Criminal Procedure Act is peremptory: unless the trial judge can discount the possibility of a death sentence at the outset, he is obliged to appoint two assessors. In this case, the summary of substantial facts and the trial judge's communication indicated that the possibility of a death sentence could not be excluded. The failure to appoint two assessors constituted a fatal irregularity, amounting to a failure of justice and vitiating the proceedings. The conviction and sentence were accordingly set aside.

Citation
[1987] ZASCA 42
Parties
Appellant: Absolom Malinga; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 May 1987
Case Number
388/86
Procedural Posture
Criminal Appeal / Minister's Appeal Under Section 323 of the Criminal Procedure Act
Outcome
Appeal allowed; conviction and sentence set aside.
Judges
Jansen, Joubert, Hoexter, Smalberger, Kumleben
Legal Topics
Death Sentence, Trial Irregularity, Appointment of Assessors, Criminal Procedure Act, Failure of Justice
Criminal Law Civil Procedure Death Sentence Trial Irregularity Appointment of Assessors Criminal Procedure Act Failure of Justice

Case Brief

Summary, issues, holding and outcome

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Parties

Absolom Malinga

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Minister's Appeal Under Section 323 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the trial judge's failure to appoint two assessors in a murder trial where the death sentence was imposed constituted a fatal irregularity.
  2. 2 Whether the conviction and sentence should be set aside due to non-compliance with section 145(2) of the Criminal Procedure Act.

Ratio Decidendi

The Supreme Court of Appeal held that section 145(2) of the Criminal Procedure Act is peremptory: unless the trial judge can discount the possibility of a death sentence at the outset, he is obliged to appoint two assessors. In this case, the summary of substantial facts and the trial judge's communication indicated that the possibility of a death sentence could not be excluded. The failure to appoint two assessors constituted a fatal irregularity, amounting to a failure of justice and vitiating the proceedings. The conviction and sentence were accordingly set aside.

Court Disposition

Appeal allowed; conviction and sentence set aside.

Orders

  • The appeal is allowed.
  • The conviction and sentence are set aside.