S v Mokalaka

• Jurisdiction: South Africa

S v Mokalaka
2010 (1) SACR 88 (GNP)

2010 (1) SACR p88

Citation	2010 (1) SACR 88 (GNP)
Case No	A534/08
Court	North Gauteng High Court, Pretoria
Judge	Southwood J and Makgoka AJ
Heard	March 17, 2009
Judgment	June 9, 2009
Counsel	AM Viviers for the appellant, instructed by the Legal Aid Board.; L Swart for the respondent.

Flynote : Sleutelwoorde

B Trial — Assessors — Appointment of — For purposes of trial — Murder trial — Section 93ter(1)(a) of Magistrates' Courts Act 32 of 1944 — Appointment of assessors peremptory unless accused requesting otherwise — Record in casu not showing that magistrate having required appellant to elect whether to proceed with assessors or not — If court not properly constituted, C having no power to hear matter — In same position as court lacking jurisdiction — Conviction and sentence set aside.

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Regional court imposing sentence where accused convicted of raping complainant D twice — In terms of s 51(1) of Act (prior to amendment by Criminal Law (Sentencing) Amendment Act 38 of 2007), trial court ought to have stopped proceedings and referred matter to High Court for sentencing — Trial court also precluded by s 52A of Act 105 of 1997 from sentencing accused for any other offence — Both sentence for rape and that for robbery to be set aside and matter referred to appropriate court for E sentencing — According to transitional provisions of Act 38 of 2007, appropriate court in such instance regional court.

Headnote : Kopnota

Having been convicted in a regional court of murder, rape and robbery, the appellant was sentenced to 15, 10 and 10 years' imprisonment, respectively. The latter two sentences were ordered to run concurrently, resulting in an F effective 25-year sentence. He appealed against both the convictions and the sentences, but neither the murder conviction nor that for robbery was attacked, while the court dismissed the appeal against the rape conviction on its merits. The court found, however, that the trial had been procedurally irregular in two respects.

Held, that s 93ter(1) of the Magistrates' Courts Act 32 of 1944, which provided G that a regional court magistrate presiding at a murder trial must be assisted by two assessors, unless the accused requested otherwise, was peremptory and must be complied with. The record in casu did not show that the magistrate had required the appellant to elect whether to proceed with assessors or not. If a court was not properly constituted it had no power to hear a matter; it was in the same position as a court that lacked jurisdiction. H Accordingly, the conviction and sentence for murder must be set aside. (Paragraphs [5]–[8] at 91a–i.)

Held, further, that the rape complainant had testified that the appellant had raped her twice. In terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2 to the Act (as they read prior to their amendment by Act 38 of 2007), the prescribed sentence was one of life I imprisonment and, under s 52(1) of Act 105 of 1997, the trial court ought to have stopped the proceedings and referred the matter to the High Court for sentencing. In addition, the trial court was precluded by s 52A of Act 105 of 1997 from sentencing the appellant for any other offence. Accordingly, both the sentence for rape and that for robbery were a nullity; they must be set aside and the matter referred to the appropriate court for J sentencing. Act 38 of 2007 had introduced transitional provisions which

2010 (1) SACR p89

were applicable in casu; their effect was that the appropriate court to impose A sentence was the regional court, and the matter was therefore to be referred back to the regional court for sentencing in terms of Act 105 of 1997, as amended by Act 38 of 2007. (Paragraphs [9] and [10] at 91i–92b and 92e–f.)

Appeal against rape and robbery convictions dismissed. Appeal against murder conviction upheld. Sentences for rape and robbery referred back to regional B court.

Annotations:

Cases cited

Reported cases

Direkteur van Openbare Vervolgings, Transvaal v Makwetsja 2004 (2) SACR 1 (T) ([2003] 2 All SA 249): referred to C

S v Daniels and Another 1997 (2) SACR 531 (C): referred to

S v Khambule 1999 (2) SACR 365 (O): followed

S v Liau 2005 (1) SACR 498 (T): referred to

S v Naicker 2008 (2) SACR 54 (N): not followed

S v Ndzamdela and Another 1990 (2) SACR 282 (TkA): referred to

S v Titus 2005 (2) SACR 204 (NC): followed D

S v Van der Merwe 1997 (2) SACR 230 (T): referred to.

Unreported cases

S v Camako (TPD case No A450/207, 18 September 2008): referred to.

Legislation...