S v Mathe

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 63 (GJ)

S v Mathe
2017 (2) SACR 63 (GJ)

2017 (2) SACR p63

Citation	2017 (2) SACR 63 (GJ)
Case No	A242/14
Court	Gauteng Local Division, Johannesburg
Judge	Keightley J and Kuny AJ
Heard	October 18, 2016
Judgment	October 28, 2016
Counsel	K Cosyn for the appellant, instructed by the Justice Centre, Johannesburg.; N Naidoo for the state.

Flynote : Sleutelwoorde

Trial — Assessors — Absence of — Magistrate dispensing with assessors for G lack of resources — Irregularity as envisaged by s 324 of Criminal Procedure Act 51 of 1977.

Headnote : Kopnota

In a matter where the appellant had been convicted of murder in a regional H magistrates' court and sentenced to 20 years' imprisonment, it appeared on appeal that the magistrate had decided, without any enquiry into whether the appellant required an assessor, that no assessor would be appointed 'for lack of resources'.

Held, that the failure of the presiding officer to invoke the provisions of s 93ter of the Magistrates' Courts Act 32 of 1944 was an irregularity as envisaged by the provisions of s 324 of the Criminal Procedure Act 51 of 1977. I The conviction and sentence accordingly had to be set aside and the state was authorised to institute proceedings de novo (see [16]).

Cases cited

Chala and Others v Director of Public Prosecutions, KwaZulu-Natal and Another 2015 (2) SACR 283 (KZP): followed J

2017 (2) SACR p64

S A v Gayiya 2016 (2) SACR 165 (SCA): dictum in para [8] applied

S v Malindi and Others 1990 (1) SA 962 (A): referred to

S v Mokalaka 2010 (1) SACR 88 (GNP): dictum in para [7] applied.

Legislation cited

The Criminal Procedure Act 51 of 1977, s 324: see Juta's Statutes of South B Africa 2015/16 vol 1 at 2-408

The Magistrates' Courts Act 32 of 1944, s 93ter: see Juta's Statutes of South Africa 2015/16 vol 1at 2-60.

Case Information

K Cosyn for the appellant, instructed by the Justice Centre, Johannesburg.

N C Naidoo for the state.

An appeal from a conviction and sentence imposed in a regional magistrates' court for murder.

Order

1.

D The appeal is upheld and the appellant's conviction and sentence are set aside.

2.

The murder charge is referred to the regional court for prosecution de novo if the Director of Public Prosecutions decides to reinstitute the charge.

Judgment

Kuny E AJ (Keightley AJ concurring):

[1] The appellant, a Mozambican, was charged with one count of murder read with the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. The crime was alleged to have been F committed on 8 November 2011.

[2] The trial commenced in the Germiston Regional Magistrates' Court on 3 April 2013. The accused pleaded not guilty. He was legally represented during the proceedings.

[3] G After pleading, the presiding officer, magistrate H Mashimbye, informed the appellant '(f)or lack of resources there will be no participation of assessorship in the proceedings'. The matter was then postponed to 25 April 2013 for the leading of evidence.

[4] H The record commences again on 18 February 2014 on which occasion the state witness, January Mlambo, was called to complete his evidence. The record is clearly incomplete because it appears from the record that Mlambo had commenced testifying on a previous occasion. His evidence-in-chief however, is not reflected on the record.

[5] I The appellant was ultimately convicted of murder and was sentenced to 20 years' imprisonment. He was also declared unfit to possess a firearm in terms of s 103(1) of the Arms Control Act 60 of 2000. Leave to appeal was granted against sentence only.

[6] The point has been taken in heads of argument...