Siwela v S (AR509/2017) [2018] ZAKZPHC 24 (20 June 2018)

Siwela v S (AR509/2017) [2018] ZAKZPHC 24 (20 June 2018)

The court held that the magistrate's failure to comply with section 93 ter of the Magistrates' Courts Act, by not sitting with assessors or canvassing the issue with the accused, constituted a fundamental irregularity. The statute's provisions are peremptory, and non-compliance vitiates the entire proceedings, regardless of the appellant's admission of guilt or the absence of a defence. The appeal court has no discretion to assess the impact of such failure; the conviction and sentence must be set aside. The matter is referred back for a new trial before a properly constituted court, with assessors unless the appellant requests otherwise. The period already served by the appellant should...

Citation
[2018] ZAKZPHC 24
Parties
Appellant: Musawenkosi Solomon Siwela; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
20 June 2018
Case Number
AR509/2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside; matter referred for retrial before another magistrate with assessors unless appellant requests otherwise.
Judges
Madondo, Sishi
Legal Topics
Murder Trial, Magistrates Courts Act Section 93 Ter, Irregularity in Proceedings, Proper Constitution of Court
Criminal Law Civil Procedure Murder Trial Magistrates Courts Act Section 93 Ter Irregularity in Proceedings Proper Constitution of Court

Case Brief

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Parties

Musawenkosi Solomon Siwela

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the failure of the magistrate to sit with assessors in a murder trial constitutes a fatal irregularity.
  2. 2 Whether the proceedings were vitiated due to non-compliance with section 93 ter of the Magistrates' Courts Act.
  3. 3 Whether the conviction and sentence should be set aside and the matter referred for a new trial.

Ratio Decidendi

The court held that the magistrate's failure to comply with section 93 ter of the Magistrates' Courts Act, by not sitting with assessors or canvassing the issue with the accused, constituted a fundamental irregularity. The statute's provisions are peremptory, and non-compliance vitiates the entire proceedings, regardless of the appellant's admission of guilt or the absence of a defence. The appeal court has no discretion to assess the impact of such failure; the conviction and sentence must be set aside. The matter is referred back for a new trial before a properly constituted court, with assessors unless the appellant requests otherwise. The period already served by the appellant should...

Court Disposition

Appeal upheld; conviction and sentence set aside; matter referred for retrial before another magistrate with assessors unless appellant requests otherwise.

Orders

  • The appeal is upheld.
  • Both conviction and sentence are set aside.