S v Mabaso

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mlaba J and Nkosi J
• Judgment Date: 03 February 2023
• Citation: 2023 (2) SACR 217 (KZP)
• Hearing Date: 03 February 2023
• Counsel: P Andrews for the appellant, instructed by Legal Aid South Africa, Pietermaritzburg. G Mkhize for the respondent.
• Docket Number: AR 77/2022
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mlaba J (Nkosi J concurring):

[1] On 14 December 2012 the appellant, together with his co-accused, was convicted on a charge of murder (read with the provisions of ss 51(1) and (2) of the Criminal Law Amendment Act 105 of 1997), read with the provisions of ss 257 and 258 of the Criminal Procedure Act 51 of 1977. They were sentenced to 21 years' imprisonment. They applied for leave to appeal, which was refused. The appellant petitioned this honourable court, and the court granted leave to appeal against his conviction.

[2] The appellant raised a point in limine and submitted that the court a quo failed to comply with s 93ter(1). On 25 January 2010, when the appellant appeared before the court a quo for an adjournment, the defence indicated that 'the accused are dispensing with assessors'.

[3] The matter was adjourned on several occasions prior to the trial proceeding on 14 October 2011.

[4] The record reflects that the accused was present in court on 25 January 2010. It does not reflect however, that the presiding officer explained to the accused the provisions of s 93ter, nor that she did confirm with the accused that the accused understood the proviso and that he indeed had elected to dispense with the use of assessors.

[5] The record reflects that, when the trial started on 14 October 2011, before a different presiding officer, no explanation of the proviso was made by the presiding officer. In fact, nothing was mentioned about the use of assessors and the appellant's rights in terms of s 93ter. The appellant was legally represented throughout the trial by the same legal representative who had indicated to the court that the use of assessors would be dispensed with.

[6] The issue to be determined in this appeal is whether the court was properly constituted and whether an indication to a different presiding officer by the legal representative during an adjournment was so sufficient that it amounted to a waiver by the appellant of the use of assessors.

[7] Section 93ter of the Magistrates' Courts Act 32 of 1944 provides that, if an accused is standing trial on a charge of murder —

'the judicial officer shall at that 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'.

Mlaba J (Nkosi J concurring)

[8] In Chala and Others v Director of Public Prosecutions,...