S v Moyo

• Jurisdiction: South Africa
• Citation: 2018 (1) SACR 658 (GJ)

S v Moyo
2018 (1) SACR 658 (GJ)

2018 (1) SACR p658

Citation	2018 (1) SACR 658 (GJ)
Case No	A 204/2017
Court	Gauteng Local Division, Johannesburg
Judge	Opperman J and Nair AJ
Heard	November 6, 9, 2017; November 10, 2017
Judgment	November 30, 2017
Counsel	E Guerneri for the appellant, instructed by Legal Aid South Africa.; KT Ngubane for the state.

Flynote : Sleutelwoorde

Trial B — Assessors — Failure to appoint in violation of s 93ter(1) of Magistrates' Courts Act 32 of 1944 — Explanation that assessors not appointed due to 'lack of resources' — Court's concern at this brought to attention of Minister of Justice.

Review C — In what cases — Leave to appeal against conviction in regional magistrates' court refused, but granted in respect of sentence — Discovery at hearing of appeal that no assessors appointed in violation of s 93ter(1) of Magistrates' Courts Act 32 of 1944 — Fatal irregularity that could be corrected on review — Court accordingly setting aside proceedings.

Headnote : Kopnota

The D appellant was convicted in a regional magistrates' court of murder and intimidation and was sentenced to 23 years' imprisonment. He was refused leave to appeal, but on petition to the Judge President he was granted leave to appeal against his sentence. When the matter was heard, counsel for the appellant contended that, in respect of the count of murder, the court a quo E was not properly constituted in terms of s 93ter(1) of the Magistrates' Courts Act 32 of 1944. This was because the regional magistrate had not informed the appellant before the commencement of the trial that it was a requirement of the law that he had to be assisted by two assessors, unless the accused requested that the trial proceed without assessors. It was contended that this amounted to a failure of justice and the conviction and sentence had to be set aside. Seeing as the matter had come before the court F on appeal only against sentence, the court had to decide whether it could determine the appeal against the conviction where leave had not been granted beforehand.

Held, that the fact that the appellant in the present matter had noted an appeal should not preclude him from being able to approach the court to review the proceedings, and accordingly review proceedings were available, despite G leave to appeal against the conviction having been refused. (See [27].)

The court accordingly made an order setting aside the proceedings in the regional magistrates' court as not being in accordance with justice. The court also noted that the regional magistrate had, in explanation, commented on the failure to appoint assessors as being because of a 'lack of resources'. The court was greatly concerned about this state of affairs and H ordered that a copy of the judgment be referred to the Minister of Justice. (See [41] – [42].)

Cases cited

Hansen v The Regional Magistrate, Cape Town, and Another 1999 (2) SACR 430 (C): referred to

R I v Beck 1958 (4) SA 250 (C): referred to

R v Mtembu 1961 (3) SA 60 (O): referred to

S v Alfred 2014 JDR 0117 (GNP): referred to

S v Anderson 1962 (2) SA 286 (O): referred to

S v Botha 1978 (4) SA 543 (T): referred to

S v De Villiers 2016 JDR 0550 (SCA): applied

S J v Eli 1978 (1) SA 451 (E): referred to

2018 (1) SACR p659

S v Gayiya 2016 (2) SACR 165 (SCA) ([2016] ZASCA 65): dicta in A para [8] applied

S v Hoema 1978 (2) SA 703 (T): referred to

S v Kubheka 1999 (1) SACR 65 (W): referred to

S v Khumalo 2009 (1) SACR 503 (T): followed

S v Mohlala 2014 JDR 0116 (GNP): referred to

S v Molaudzi 2015 (2) SACR 341 (CC) (2015 (8) BCLR 904; [2015] B ZACC 20): compared

S v Monchanyana 1968 (1) SA 56 (O): referred to

S v Olyn 1984 (2) SA 75 (NC): referred to

S v P FB 322/2013: referred to

S v Pieterse 2017 JDR 0748 (GJ): not followed

S v Rautenbach 1991 (2) SACR 700 (T): referred to C

S v Sawman 2001 (1) SACR 649 (E): compared

S v Van der Merwe 2009 (1) SACR 673 (C): not followed

Sefatsa and Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A): considered.

Legislation cited

The Magistrates' Courts Act 32 of 1944, s 93ter(1): see Juta's Statutes of D South Africa 2016/17 vol 1 at 2-47 to 2-48.

Case Information

E Guerneri for the appellant, instructed by Legal Aid South Africa.

KT Ngubane for the state.

An appeal with leave granted on petition against a sentence imposed in E a regional magistrates' court. The case was, however, finalised by way of a review of the conviction.

Order

1.

In terms of s 304(4), read with s 303, of the Criminal Procedure Act F 51 of 1977, as amended, the proceedings in which the sentences were imposed are declared not to be in accordance with justice, and the convictions and sentences are reviewed and set aside.

2.

The registrar is to make a copy of this judgment available to both the office of the Minister of Justice and Constitutional Development, G and the Chairperson of the Magistrates' Commission, and to draw their attention to [40] – [43] of this judgment.

Judgment

Opperman J (Nair AJ concurring):

[1] The appellant appeared in the regional court sitting in Germiston, on H charges of murder (count 1) and intimidation (count 2). He was legally represented, pleaded not guilty, but was found guilty and sentenced to 20 years' imprisonment in respect of count 1, and 3 years in respect of count 2. He was declared unfit to possess a firearm in terms of s 103(1) of the Firearms Control Act 60 of 2000.

[2] His application for leave to appeal against both his conviction and I sentence was refused, but on 12 May 2017, having petitioned the Judge President, was granted leave to appeal his sentence.

[3] At the hearing of this matter, the appellant contended that, in respect of count 1 (the murder charge), the court a quo was not properly J

2018 (1) SACR p660

Opperman J (Nair AJ concurring)

constituted A in terms of s 93ter(1) of the Magistrates' Courts Act 32 of 1944 (the Magistrates' Courts Act) and referred us to S v Gayiya 2016 (2) SACR 165 (SCA) ([2016] ZASCA 65) para 8 in which it was held that:

'The section [s 93ter(1)] is peremptory. It ordains that the judicial officer B presiding in a regional court before which an accused is charged with murder . . . shall be assisted by two assessors at the trial, unless the accused requests that the trial proceed without assessors. It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor. The starting point, therefore, is for the regional magistrate to inform the accused, before C the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.'

[Emphasis in original.]

[4] D The record does not reflect the starting point envisaged by the section, nor does it reflect that the learned magistrate had advised the appellant of the requirement contained in the subsection.

[5] In light of this failure (the s 93 issue), the appellant requested this court to set aside the conviction and sentence.

[6] E The matter is before us on appeal in respect of sentencing only. The question which falls for consideration is whether this court has jursidiction to entertain the appeal in respect of the s 93 issue, in circumstances where leave to appeal was granted in respect of the sentence imposed only, and the petition was dismissed in respect of the conviction.

[7] F In Sefatsa and Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A) it was held that a superior court — including the Appellate Division — was a creature of statute and such other relevant statutory provisions as there may be, and that it was incorrect to state, as a general proposition, that it has a jurisdiction which is general and G unlimited unless forbidden by law. Rabie ACJ stated at 837H – J that:

'It seems to me that it is to be inferred from what is said in this passage, and from the decision at which the Court arrived, that it was the view of this Court that its jurisdiction relating to appeals and the reopening of a criminal trial is governed entirely by the provisions of the Criminal H Procedure Act, and that consequently, when it has dismissed an appeal, it has no further jurisdiction in the matter. If this Court had at all thought that it had, after its dismissal of an appeal, an inherent jurisdiction to order the reopening of a trial, it would, I think, have made mention thereof and would not, as it did, have recommended to the authorities the adoption of a procedure as suggested in the last I paragraph of its judgment.'

[8] Sefatsa supra was, of course, decided before our constitutional era. In Hansen v The Regional Magistrate, Cape Town, and Another 1999 (2) SACR 430 (C) Davis J held that the judgment in Sefatsa now has to be considered in the light of provisions of the Constitution which has J broadened the inherent jurisdiction of the court, in that it provides that

2018 (1) SACR p661

Opperman J (Nair AJ concurring)

the Constitutional Court, Supreme Court of Appeal and High Courts A have inherent power to protect and regulate their own processes, and to develop the common law, taking into account the interests of justice. Section 173 of the Constitution confirms a concept of inherent jurisdiction, which promotes the interests of justice within the context of the values of the Constitution. This is a wider concept than that provided for B in s 19(1)(a) and s 19(3) of the Supreme Court Act 59 of 1959, which formed the basis of the analysis of inherent jurisdiction in Sefatsa supra.

[9] We were urged to invoke the provisions of s 304(4) of the Criminal Procedure Act 51 of 1977 (the...