R v Price

• Jurisdiction: South Africa

R v Price
1955 (1) SA 219 (A)

1955 (1) SA p219

Citation	1955 (1) SA 219 (A)
Court	Appellate Division
Judge	Centlivres CJ, Greenberg JA and Fagan JA
Heard	November 15, 1954; November 16, 1954
Judgment	November 18, 1954

Flynote : Sleutelwoorde H

Criminal procedure — Trial — Verdict — Every member of tribunal must take part in decision — Trial by Judge and assessors ordered in terms of sec. 216 (5) of Act 31 of 1917 — One assessor dying

1955 (1) SA p220

before verdict given — Judge ordering trial to continue on a request by defence with concurrence of Crown — Verdict given by remaining members of Court — Court not properly constituted — Sec. 214 (3) A not applicable to non-jury trials — Judge not precluded from making a special entry.

Headnote : Kopnota

Prima facie when a decision is entrusted to a tribunal consisting of more than one person, every member of that tribunal should take part in the consideration of the decision.

The appellant had been charged (a) with a number of counts of breaches of the regulations dealing with the price and control of hides and (b) with falsitas. The Minister of Justice, acting under section 216 (5) of B Act 31 of 1917, as amended, had ordered that he be tried by a Judge and two assessors. The appellant had pleaded not guilty and, at the end of the Crown case, the defence closed its case without calling evidence. Counsel for the defence indicated that the appellant did not dispute that the evidence on certain counts had established the offences charged and stated that the appellant pleaded guitly to these. No plea of guilty was entered however. After hearing argument the Court adjourned to consider its verdict. During the adjournment and before a verdict on any C count had been determined, one of the assessors died. At a later sitting of the Court, at which the Judge presided, with the remaining assessor present, the defence made a request for an order, in terms of section 214 (3) of the Act, that the case proceed before the Court as constituted. This request was supported by the Crown and the order was made accordingly. The Court thereupon adjourned and at a later date delivered its verdict, convicting the appellant. After sentence had been passed a special entry was made as to whether the presiding Judge, notwithstanding the application made to that end on behalf of the D appellant and with the concurrence of the Crown, had wrongly and irregularly ordered the proceedings to continue after the death of one of the assessors, inasmuch as there was, after his death, no longer a properly constituted Court. In an appeal thereon,

Held, that the appellant was not precluded from contending that the Court which had convicted him was not a properly constituted Court.

Held, further, apart from section 216 (7) of the Act, that the Court had E not been properly constituted.

Held, further, that section 214 (3) did not apply to non-jury trials by a Judge and assessors.

Held, therefore, that the Court which had convicted the appellant had not been properly constituted.

Held, further, that the death of the assessor did not affect the power of the presiding Judge to make a special entry. F

Case Information

Appeal upon a special entry entered by SAMPSON, J., in a trial in the Port Elizabeth Circuit Local Division. The nature of such entry appears from the judgment of GREENBERG, J.A.

N. E. Rosenberg, Q.C. (with him L. R. Dison) and H. M. Bloch, Q.C. G (with him G. van R. Muller), for the appellant, Rosenberg, Q.C., arguing the special entry on the record: It was necessary for the Court as constituted to function until the verdict should be determined and delivered. Prior thereto it was not competent for the Judge and one assessor to function and to determine the verdict; see sec. 216 of Act 31 of 1917. The Judge and the two assessors constituted a bare quorum which had to continue until verdict; see R v Johnson, 1947 (4) SA 849; Green v Fitzgerald and Others, 1914 AD 652, and cf. R. v. H Joseph, 1948 A.C. 215. Once there is not the requisite quorum it is not competent for the remaining members to continue the proceedings; cf. Hassan & Co v Potchefstroom Municipality, 1926 T.P.D. 699; R v Silber, 1940 AD 189; R v Ras Behari Lal, 150 L.T. 3. The continuation of the proceedings after the death of one assessor and the verdict by the Judge

1955 (1) SA p221

and the remaining assessor were entirely incompetent and null and void. Even in civil cases it has been held that the continuation of a case after the death of a Judge is irregular; see Halsbury's Laws of England (2nd ed., vol. 26, para. 158); Bolton v Bolton, 1949 (2) A.E.R. 908. It A follows that the consent of the Crown and defence could not, in law, validate such continuation or verdict. The position might be different in a civil case; cf. Samuel and Others v Seedat, 1949 (3) SA 984; Riversdale Divisional Council v Pienaar, 3 S.C. at p. 255; R v Bertram, L.R. 1867, 1 P.C. at p. 534. The Criminal Code contains no provisions permitting the trial to continue after the death of an assessor. Unless sec. 216 (7) can be invoked, sec. 214 (3) can be B applied to jury trials only. This is based on the language of the section. It was never intended that in a trial without jury a Court below the statutory quorum should be capable of functioning. Assessors are members of the Court; see sec. 216 (3). But this is not the case with jurors. It is not essential to have nine jurymen; cf. secs. 201 - 2. But it is essential to have two assessors. Generally, Chap. X of the C Code is applicable only to jury trials. Sec. 216 (7) does not permit the application of sec. 214 (3) to nonjury trials. If it were so intended, it would have been expressly provided. The words 'in so far as they can be applied' negative such an intention. Sec. 216 (7) does not mean that the provisions relating to jury trials shall apply to non-jury D trials because in each case such provisions are either separately provided for in the case of non-jury trials or such provisions were intended to apply only to jury trials; see secs. 165 - 9, 200 (1), 216 (3), 200 (2) and 266 (1), 200 (3), 201 and R v Afrikander, 1932 AD 86; secs. 202, 203 and 216 (3), 205 and 216 (3), 206, 207, 203, 205 and 216 (3), 208 - 11, 212 (1)...