Recent Case: Criminal procedure

• Published date: 06 July 2020
• Date: 06 July 2020
• Author: Reddi, M.
• Pages: 225-238

Criminal procedure

MANAGAY REDDI

University of KwaZulu-Natal, Durban

1 Assessor absconding from trial

Se ct io n 145 (1)(a) of the Crimi nal Procedure Act 51 of 1977 (hereafter

the CPA) confers upon superior court judges the discretion to sit with

or without assessors during a cri minal trial. Usua lly, the seriousness of

the charge or the complexity of the legal issues would inform a judge’s

exercise of this discretion. Th at assessors are important par ticipants in

the judicial decision-making process i s evident in that two assessors

in a trial may overrule t he judge on factual questions. Therefore, an

assessor is a key member of the court for two signica nt reasons:

(i) participation in the adjudication process; and (ii) representing

community involvement in dispensing justice (S v Jaipal 2005 (1) SACR

215 (CC) paras [34]–[36]). In ins tances where an assessor behaves in a

manner depicting a lack of appreciation of the onerous nature of t he

responsibilities of the position, the only remedy is for the proceed ings

to be vitiated and the trial to begi n anew (S v Matji 2004 (1) SACR 261

(W) paras [3]–[17]).

An example of a case where the conduct of an assessor showed

an egregious lack of appreciation of the duties of an assessor is

S v Mncwengi 2019 (2) SACR 583 (SCA). The case concerned an appeal

by six appellants against thei r convictions and sentences on various

counts of murder, kidnapping and assault with intent to commit

grievous bodily harm. A lthough the applications for leave to appeal

against the convictions and sentences were denied, leave was granted

to appeal to the Supreme Court of Appeal on a narrowly dened

issue framed thus in the High Cou rt: ‘whether the trial should have

continued or started de novo upon one of the member s of the court

becoming unable to act as an assessor’ (at para [2d]).

The appellants had been tried in t he High Court, before a judge and

two assessors, on three counts of murder, four counts of kidnapping

and one count of assault with intent to commit grievous bodi ly harm.

About seven months into the trial, and af ter 22 witnesses had already

testied, one of the assessors, an attor ney, failed to attend the trial.

Upon establishing that she had taken up a position as a magist rate, the

High Court determi ned that, in line with the provisions of s147 of the

CPA, the assessor’s situation had caused her to be unable to act. In the

court’s view, this entitled it to proceed with the trial in t he absence of

the assessor’s services (at paras [7]–[8]). The trial continued before the

remaining members of the cour t and ended with the six accused being

Recent Cases 225

(2020) 33 SACJ 225

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