S v Papiyana and Another (CA&R 19/2021) [2021] ZAECMHC 8; 2021 (2) SACR 327 (ECM) (23 February 2021)

S v Papiyana and Another (CA&R 19/2021) [2021] ZAECMHC 8; 2021 (2) SACR 327 (ECM) (23 February 2021)

The court held that the provisions of section 93 ter(1) of the Magistrates' Court Act are peremptory and require the presence of two assessors in murder trials in the regional court unless the accused requests otherwise. In this case, both accused elected for the presence of assessors, and the magistrate had no...

Source-derived case information.

Citation
[2021] ZAECMHC 8
Parties
Applicant: The State; Respondent: Malibongwe Papiyana; Respondent: Luvo Mbana
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
23 February 2021
Case Number
CA&R 19/2021
Procedural Posture
Criminal Review / Review Proceedings Under Section 304 a of the Criminal Procedure Act
Outcome
The convictions of both accused are set aside as the proceedings were not in accordance with justice.
Judges
M Notyesi, M Malusi
Legal Topics
Proper Constitution of Court, Assessors in Regional Court, Gross Irregularity, Section 93 Ter Magistrates Court Act, Administration of Justice
Criminal Law Civil Procedure Proper Constitution of Court Assessors in Regional Court Gross Irregularity Section 93 Ter Magistrates Court Act Administration of Justice

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Parties

The State

Applicant

Malibongwe Papiyana

Respondent

Luvo Mbana

Respondent

Procedural Posture

Criminal Review / Review Proceedings Under Section 304 a of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the trial was properly constituted in terms of section 93 ter of the Magistrates' Court Act when only one assessor was present after the accused elected for assessors.
  2. 2 Whether the conviction of the accused persons is valid given the irregularity in the constitution of the court.
  3. 3 Whether lack of human resources can justify non-compliance with statutory requirements for assessors.

Ratio Decidendi

The court held that the provisions of section 93 ter(1) of the Magistrates' Court Act are peremptory and require the presence of two assessors in murder trials in the regional court unless the accused requests otherwise. In this case, both accused elected for the presence of assessors, and the magistrate had no discretion to proceed with only one assessor. The failure to properly constitute the court was a gross irregularity that vitiated the proceedings. Lack of human resources cannot justify non-compliance with statutory requirements. The conviction was set aside as the proceedings were not in accordance with justice.

Court Disposition

The convictions of both accused are set aside as the proceedings were not in accordance with justice.

Orders

  • The proceedings in which the accused persons were convicted by the regional Magistrate are declared not to be in accordance with justice, and the conviction of both accused is set aside.
  • The registrar is to make a copy of this judgment available to the Minister of Justice and Constitutional Development for appropriate remedial actions, if any, in the circumstances dealt with in paragraph 11 of this judgment.