Director of Public Prosecutions Kwazulu-Natal v Pillay
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Dambuza ADP, Schippers JA, Mothle JA, Matojane JA and Goosen JA |
| Judgment Date | 23 June 2023 |
| Citation | 2023 JDR 2237 (SCA) |
| Hearing Date | 05 May 2023 |
| Docket Number | 706/2022 |
| Court | Supreme Court of Appeal |
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring):
This is an appeal by the Director of Public Prosecutions, KwaZulu-Natal (the DPP), in terms of s 311 of the Criminal Procedure Act 51 of 1977 (the CPA). It lies against an order of the High Court, KwaZulu-Natal Division, Pietermaritzburg (the high court), which set aside the conviction and sentence of the respondent on a charge of murder.
The appeal was prosecuted on the basis that it raises a question of law, namely the proper interpretation and application of s 93ter(1) of the Magistrates’ Courts Act 32 of 1944 (the MCA). [1] The respondent rightly conceded that the issue in this matter, raises a question of law.
2023 JDR 2237 p3
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring)
The facts are common cause. The respondent and a co-accused were charged with murder. The trial proceeded before the Regional Court for the Regional Division of KwaZulu-Natal at Durban (the trial court). It commenced on 18 May 2018. The respondent was legally represented throughout the proceedings before the trial court. The record reflects several court appearances before the commencement of the trial. The entries consist of handwritten notes recorded by the presiding officer. On 26 February 2018, the accused appeared in court. They were represented by Mr Luckychand. The case was remanded to 7 March 2018 ‘for PTC’, which was accepted to be shorthand for ‘pre-trial conference’.
On 7 March 2018, the pre-trial conference occurred in open court. Both the respondent and his co-accused were present and were represented by Mr Luckychand. The re-typed entry on the record reads as follows:
‘Both accused before Court.
Both accused are advised of the use of lay assessors – duly understood.
Mr Luckychand confirm that no assessors will be required.
Both accd confirm the same
PTC held – See annexure.
1 day available for trial [illegible] evidence admitted.’
The trial commenced on 18 May 2018. The record reads as follows:
‘COURT: Okay, just before we proceed, Mr Luckychand, you confirm for the record that no assessors are required in this matter?
MR LUCKYCHAND: That’s correct, Your Worship.’
On 18 August 2018, the respondent was convicted of murder. His co-accused was acquitted. He was sentenced to 10 years’ imprisonment on 21 August 2018. The respondent was granted leave to appeal against his conviction. On 25 May 2022, shortly before the hearing of the appeal, the high court issued a
2023 JDR 2237 p4
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring)
directive requiring the parties to file supplementary heads of argument dealing with whether there had been compliance with s 93ter(1) of the MCA. That issue had not been raised as a ground of appeal. The appeal was heard on 2 June 2022. On 10 June 2022, the high court delivered judgment, which dealt only with the constitution of the trial court. It held that the peremptory requirements of s 93ter(1) had not been satisfied and it set aside the respondent’s conviction.
The appeal squarely raises the proper interpretation of s 93ter(1) of the MCA and its application. The section provides that:
‘The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice —
before any evidence has been led; or
in considering a community-based punishment in respect of any person who has been convicted of any offence,
summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at the trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may in his discretion summon one or two assessors to assist him.’
In S v Gayiya [2] this Court held that s 93ter(1) prescribes the proper constitution of the court before which an accused stands trial. [3] It was held that in the event that the court is not properly constituted, the proceedings are a nullity.
In relation to the effect of the section, this Court held:
‘The section is peremptory. It ordains that the judicial officer presiding in a regional court before which an accused is charged with murder (as in this case) shall be assisted by two
2023 JDR 2237 p5
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring)
assessors at the trial unless the accused requests that the trial proceed without assessors. It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor. The starting point, therefore, is for the regional magistrate to inform the accused, before the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.’
The passage is clear and unequivocal. This statement of law has been reiterated by this Court in Shange v S [4] and in Mtambo v The State. [5] Since the Gayiya judgment in numerous high court judgments have addressed s 93ter(1) of the MCA and sought to apply Gayiya. Some conflict in the interpretation and application of Gayiya has emerged. In the light of this, it is necessary to resolve the conflict.
In S v Langalitshoni, [6] a full bench of the Eastern Cape Division set aside the conviction of the accused by a regional court on the basis that s 93ter(1) was not complied with. In that matter, the accused was legally represented. After referring to the quoted passage from Gayiya, the court said:
‘The statement of the legal principle quoted in the preceding paragraph has the effect of creating an obligation on the part of a regional magistrate presiding over a trial involving a charge of murder. There are two essential elements to the obligation. The first is to inform the accused person before the commencement of the proceedings what the peremptory provisions of the law require to ensure the proper constitution of the regional court. The second is to inform the accused person that he or she may elect to proceed with the trial without assessors.’ [7]
The court then set out what a trial magistrate is required to do to discharge the obligation, both when the accused is unrepresented and represented. In relation to the latter scenario, the court said,
2023 JDR 2237 p6
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring)
‘What is required is a repetition of the legal principle quoted elsewhere in this judgment. Ideally, communication of the legal principle should be made in a direct manner by the magistrate addressing the accused person, who should be asked at that stage to indicate whether he or she has been made aware of the peremptory provisions. The legal representative of the accused person may then be asked by the magistrate to confirm the correctness of the answer given by the accused person. It is then necessary for the magistrate to ask specifically whether the accused person wishes to permit the trial to proceed without assessors. At this point a magistrate would not be criticised for giving a brief outline of the role played by assessors in a criminal trial. The magistrate ought to be satisfied that the answer given by the accused person demonstrates an appreciation of the nature of the question and reflects a reliable response in the circumstances. The accused person has the right to be tried in a fully constituted court. An election to proceed without assessors amounts to a waiver of such right. A waiver of a right cannot be achieved without knowledge thereof. That this is so should be checked with the accused person and the legal representative.’ [8]
The court concluded that in asking the legal representative ‘are you going to use the services of the assessors?’, the magistrate did not convey that the ‘proper constitution of the court requires that the magistrate ordinarily sit with two assessors. [9] It concluded that the question was misleading since it suggested that the use of assessors involved an ‘additional right’. The questions and answers did not, it found, indicate that the accused with full knowledge, waived his right to a trial before ‘a properly constituted court’.
In S v Ngomane and Another, [10] the accused was also legally represented and, on two separate occasions before the commencement of the trial, the question of the composition of the court in terms of s 93ter(1) was addressed. The record of these exchanges was cryptic. The court took the view that the fact that
2023 JDR 2237 p7
Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring)
the notes were cryptic, was of no consequence. The magistrate was, it held, clearly alert to the issue of assessors by addressing it on two occasions. [11]
Dealing with Langalitshoni, the court in Ngomane, reasoned that: ‘Accordingly, when the accused is legally represented, there is no overriding duty on the presiding magistrate to explain to the accused in any detail each and every single one of his numerous constitutional rights.’ [12]
‘It is obvious in this case that the legal representative of the appellants was also fully alert to the issue of assessors, which was attended to and disposed of when the appointment of assessors was addressed by the magistrate and waived on behalf of the appellants. The section provides that only the accused, obviously as advised by his legal representative and through his legal representative, may...
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