Sass v S (A411/2008) [2008] ZAWCHC 279 (31 October 2008)

Sass v S (A411/2008) [2008] ZAWCHC 279 (31 October 2008)

The court held that the failure by the magistrate to summon assessors in terms of section 93 ter (1) of the Magistrates' Courts Act 32 of 1944 in a murder trial is a gross irregularity. The statute prescribes the constitution of the court, and non-compliance renders the proceedings incompetent. The absence of a request by the accused to proceed without assessors means the trial should not have proceeded without them. The conviction and sentence must therefore be set aside, and it is left to the Director of Public Prosecutions to decide on further action. The appellant may be retried.

Citation
[2008] ZAWCHC 279
Parties
Appellant: K Sass; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 October 2008
Case Number
A411/2008
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
Roux, Meer
Legal Topics
Murder Trial, Magistrates Courts Act, Irregularity in Trial, Constitution of Court
Criminal Law Civil Procedure Murder Trial Magistrates Courts Act Irregularity in Trial Constitution of Court

Case Brief

Summary, issues, holding and outcome

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Parties

K Sass

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the failure to summon assessors in a murder trial constitutes an irregularity.
  2. 2 Whether non-compliance with section 93 ter (1) of the Magistrates' Courts Act 32 of 1944 invalidates the conviction and sentence.
  3. 3 Whether the absence of assessors amounts to a failure of justice.

Ratio Decidendi

The court held that the failure by the magistrate to summon assessors in terms of section 93 ter (1) of the Magistrates' Courts Act 32 of 1944 in a murder trial is a gross irregularity. The statute prescribes the constitution of the court, and non-compliance renders the proceedings incompetent. The absence of a request by the accused to proceed without assessors means the trial should not have proceeded without them. The conviction and sentence must therefore be set aside, and it is left to the Director of Public Prosecutions to decide on further action. The appellant may be retried.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.
  • It is left to the Director of Public Prosecutions to decide on the further course of action.