Shange v S (613/2016) [2017] ZASCA 51 (2 May 2017)

Shange v S (613/2016) [2017] ZASCA 51 (2 May 2017)

The Supreme Court of Appeal held that the regional magistrate was required by s 93ter(1) of the Magistrates' Courts Act to sit with two assessors in a murder trial unless the accused requested otherwise. The appellant was not legally represented and there is no evidence he was informed of his right to request a trial without assessors. The record does not reflect any such request or the presence of assessors. The requirement is peremptory, and non-compliance rendered the trial court improperly constituted. Accordingly, the convictions and sentences were incompetent and had to be set aside. The State conceded the point, and the court ordered the appellant's immediate release.

Citation
[2017] ZASCA 51
Parties
Appellant: Lucky Vincent Shange; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 May 2017
Case Number
613/2016
Procedural Posture
Criminal Appeal / Appeal From Kwa Zulu Natal High Court, Durban
Outcome
Appeal upheld; convictions and sentences set aside; appellant to be released from custody immediately.
Judges
Lewis, Petse, Mathopo, Gorven, Mbatha
Legal Topics
Constitution of Criminal Court, Assessors in Regional Court, Non Compliance With Statutory Requirements, Setting Aside Conviction
Criminal Law Civil Procedure Constitution of Criminal Court Assessors in Regional Court Non Compliance With Statutory Requirements Setting Aside Conviction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Lucky Vincent Shange

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Kwa Zulu Natal High Court, Durban

Legal Issues

  1. 1 Whether the regional magistrate was required to sit with assessors in terms of s 93ter(1) of the Magistrates' Courts Act 32 of 1944.
  2. 2 Whether the appellant was made aware of his right to request that the trial proceed without assessors.
  3. 3 Whether non-compliance with the statutory requirement rendered the court improperly constituted and the convictions incompetent.

Ratio Decidendi

The Supreme Court of Appeal held that the regional magistrate was required by s 93ter(1) of the Magistrates' Courts Act to sit with two assessors in a murder trial unless the accused requested otherwise. The appellant was not legally represented and there is no evidence he was informed of his right to request a trial without assessors. The record does not reflect any such request or the presence of assessors. The requirement is peremptory, and non-compliance rendered the trial court improperly constituted. Accordingly, the convictions and sentences were incompetent and had to be set aside. The State conceded the point, and the court ordered the appellant's immediate release.

Court Disposition

Appeal upheld; convictions and sentences set aside; appellant to be released from custody immediately.

Orders

  • The appeal is upheld.
  • The convictions and sentences in respect of the appellant are set aside.