S v Mncwengi and Others

• Jurisdiction: South Africa
• Judge: Petse DP, Saldulker JA, Van der Merwe JA, Nicholls JA and Hughes AJA
• Judgment Date: 06 September 2019
• Citation: 2019 (2) SACR 583 (SCA)
• Docket Number: 395/2018 [2019] ZASCA 135
• Hearing Date: 06 September 2019
• Counsel: A Mia for the first to third appellants, instructed by Legal Aid South Africa, Cape Town and Bloemfontein. M Calitz for the fourth to sixth appellants, instructed by Legal Aid South Africa, Cape Town and Bloemfontein. JC Ntela for the state.
• Court: Supreme Court of Appeal

Saldulker JA I (Petse DP, Van der Merwe JA, Nicholls JA and Hughes AJA concurring):

Introduction

[1] The six appellants were tried in the Western Cape Division of the J High Court, Cape Town (the High Court), on three counts of murder,

Saldulker JA (Petse DP, Van der Merwe JA, Nicholls JA and Hughes AJA concurring)

four counts of kidnapping and one count of assault with the intent to A commit grievous bodily harm, before Boqwana J and two assessors, Mr H Swart and Ms S Solomons, the latter being a practising attorney. During a protracted trial, one of the assessors, Ms Solomons, failed to return to the trial. The trial then continued before the remaining members of the court to its conclusion. At the stage when Ms Solomons failed B to return, the trial had run for seven months and 22 witnesses had already testified. On 19 November 2014 all the appellants were convicted on three counts of murder and kidnapping, and one count of assault with intent to do grievous bodily harm. On 24 March 2015 the High Court imposed various sentences, which culminated in an effective sentence of 18 years' imprisonment for each of the appellants. C

[2] On 26 June 2015 the appellants applied for leave to appeal against their convictions and sentences. Apart from attacking their convictions and sentences on various grounds, the appellants also pertinently raised the issue whether the High Court had committed a fatal irregularity by continuing the trial in the absence of one of the assessors, Ms Solomons. D The applications for leave to appeal the convictions and sentences were refused, but leave to appeal was granted to this court on the limited issue formulated in the judgment of the High Court in the following terms: 'whether the trial should have continued or started de novo upon one of the members of the court becoming unable to act as an assessor'. E

[3] Accordingly, the crisp question for decision in this appeal is whether the continuation of the proceedings before the remaining members of the court was authorised in terms of s 147(1) of the Criminal Procedure Act 51 of 1977 (the CPA). If this question is answered in the affirmative, the appeal must fail, but not so if the answer is in the negative. This issue must then be considered against the following factual backdrop. F

Background

[4] On 14 August 2013 the appellants' trial commenced. On 17 March 2014, during a trial-within-a-trial pertaining to the admissibility of certain warning statements, Boqwana J informed counsel for the defence G and the state that she had received a medical certificate from one Dr PC Ndomile, stating that Ms Solomons had been booked off sick by him due to acute anxiety disorder from 17 – 19 March 2014. The trial was then adjourned to 24 March 2014. Prior to the court proceedings on 17 March 2014 Ms Solomons had informed Boqwana J that she had H been offered a position to act as a magistrate in Upington. Ms Solomons requested that she be released from her obligations as an assessor in the trial. Boqwana J declined the request. The office of the registrar attempted to contact Ms Solomons for the duration of that week to ascertain the nature of her illness and the period of her envisaged absence, but to no avail. I

[5] When the trial resumed on 24 March 2014 Ms Solomons did not attend court. At the behest of the trial judge, the registrar attempted to contact Ms Solomons at the telephone number she had provided, but this proved fruitless. An attempt was made to contact Ms Solomons at the Upington Magistrate's Court where it was suspected she might be, J

Saldulker JA (Petse DP, Van der Merwe JA, Nicholls JA and Hughes AJA concurring)

and A where she was in fact found. Ms Solomons was then requested by the trial judge to submit a written explanation for her conduct. In response Ms Solomons addressed a letter to the High Court explaining her reasons for not returning. These were that the duration of the trial had far exceeded the allocated estimated time, and that this had severely compromised her financial position. She attributed her dire B financial situation to the fact that her practice was not generating income because of her extended absence.

[6] It is necessary to refer to portions of the letter which underpinned Ms Solomons' reasons:

'Dear C Judge and all the interested parties in the abovementioned matter. I hereby wish to request your permission to excuse me permanently from the abovementioned matter S v Mncwengi and 6 others. My reasons are as follows:

. . . When I was informed about the duration of the matter it was communicated to me that the estimated period is six to eight weeks or D a little bit longer. At that stage I did not foresee any delay in the matter or that the matter could probably run for this lengthy period. I first was not aware that the matter would take more than six months on the Court's roll. In the interim I did [lose] money, clients and financially I am not doing well.

I did alert the Honourable Judge NP Boqwana that I applied for other E jobs and that I was accepted to act as Magistrate in the District Court in Upington. The Honourable Judge NP Boqwana and Assessor Mr Swart referred me to the provisions of the Criminal Procedure Act 51 of 1977 as amended pertaining to the circumstances and conditions under which an assessor could be excused from record.

I then attempted to make an appointment with the Judge President to discuss F alternative ways or the possibility of me not forfeiting the position as magistrate (acting) offered to me in Upington. I was advised that my request to the Honourable Judge President would be inappropriate. I then withdrew my planned appointment with the Judge President and was faced with my own decision.

I stressed and panicked. I had to think about my family (3 children plus G 1 child, 4 children) my financial difficulties as well as my future in the legal profession. I did not make a decision in isolation of the rights of the other parties that is the State Prosecutor, the defence advocates, the accused and other parties involved in this matter.

My decision was based on the fact that there are cases in which only one H assessor is sitting my wish is for the matter to proceed in my absence and the rights of the accused will not be affected because of my absence as the remaining assessor, Mr Swart is still there assisting the Judge on the aspect of facts.

I hereby wish to apologise for the manner in which I dealt with the I situation as well as to plead to all the interested and relevant parties in this case to accept my reason and absence from the case as I accepted and signed a contract to act as a magistrate in Upington. S Solomons.'

[My emphasis.]

[7] The aforegoing letter was brought to the attention of counsel for the defence and the state, and the matter was then postponed to 2 April 2014, J for the hearing of argument from all the parties as to whether the

Saldulker JA (Petse DP, Van der Merwe JA, Nicholls JA and Hughes AJA concurring)

provisions of s 147 of the CPA were applicable. On the resumption of the A trial, and after hearing argument, the matter was again postponed to 14 April 2014 so as to obtain further details from Ms Solomons with regard to her appointment as a magistrate in Upington. On 14 April 2014, Ms Solomons advised the High Court in further correspondence that she had signed a contract on 17 March 2014 to act as a magistrate in Upington, and that, in the circumstances, she would not return to B continue with the trial.

[8] The effect of Ms Solomons'...