S v Prince

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hendricks JP and Petersen J
• Judgment Date: 12 April 2023
• Citation: 2023 JDR 1171 (NWM)
• Hearing Date: 17 March 2023
• Docket Number: CA 59/2022
• Court: North West High Court, Mafikeng

Hendricks JP:

Introduction:

[1]

Mr. Handsome Prince Sibanda (the appellant) was arraigned before the Regional Court, Taung on a charge of rape read with the provisions of section 51 (1) and Part 1 of Schedule 2 of Act 105 of 1997. It was alleged that the complainant was raped more than once and that grievous bodily harm was inflicted, which brings the offence within the purview of section 51 (1) read with Part 1 of Schedule 2 of Act 105 of 1997. He was convicted and sentenced to twenty (20) years imprisonment. No order was made in terms of section 103 (1) of the

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Firearms Control Act 60 of 2000 and section 50 of the Criminal Law Amendment Act 105 of 1997. His name will consequently be included in the National Register for Sexual Offences. Leave to appeal was granted by the court a quo in respect of both the conviction as well as the sentence; hence this appeal.

Condonation:

[2]

There is an application for condonation for the late prosecution of the appeal. An affidavit accompanying the Notice of Appeal and application for condonation which was deposed to by the appellant as deponent, was filed. It is quite apparent that the appellant was all-along desirous to prosecute his appeal. Leave to appeal was granted shortly after the matter was finalized by the trial court on 26 September 2022. The appellant cannot be blamed for the delay caused by the transcription of the record and he being transferred to Rooigrond Prison in Mahikeng. On 11 November 2022, he instructed his Legal Aid representative to note the appeal, which he states is against conviction only.

[3]

Condonation is not for the mere asking. The law on condonation is best summarised with reference to the oft quoted passage by Holmes JA in Melane v Santam Bank Insurance co. ltd 1962 (4) SA 531 (A) at 532 B-E where the following was stated:

"In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon the consideration of all the facts, and in essence

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it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects of success, and the importance of the case. Ordinarily, those facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of al/ the facts. Thus a slight delay and a good explanation may help to compensate for the prospects of success which are not strong. Or the importance of the issue and the strong prospects of success may tend to compensate for a long delay. "(See also Wynberg and Another (1998) SACR 18, 1998 (3) SA 34 (SCA) at 40 H-41 9"

[4]

The Supreme Court of Appeal (SCA) in Mulaudzi v Old Mutual Life Assurance Company (SA) Limited 2017 ZASCA 88 restated the factors that are to be given due consideration in a condonation application as stated in Melane, that:

"Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation thereof, the importance of the case, the respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice."

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[5]

In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at paragraph [23] the following was said:

"It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default."

The first ground of appeal:

[6]

The Notice of Appeal consist of six (6) grounds of appeal, five (5) of which relate to the conviction and one (1) to sentence. I shall, for present purposes, only concentrate on the first ground of appeal which reads thus:

"1.

In convicting the appellant it will be argued that the trial court misdirected itself by failure to inform the appellant, before the commencement of trial, that it is a requirement of the law in terms of the provisions of section 2 of the Magistrate's Court Act ("MCA") 67 of 1998, that he must be assisted by two assessors, unless he (the appellant) request that the trial proceed without the assessors, and this rendered the trial unfair."

(my emphasis)

Section 2 of the Magistrates' Courts Act 67 of 1998

[7]

Before one can even venture into the facts, merits and demerits of the evidence tendered, this seminal point of law needs to be addressed.

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The focal point is thus whether the Regional Magistrate misdirected himself by failing to appoint two assessors in terms of section 2 of the Magistrates' Courts Act 67 of 1998. The President assented to Act 67 of 1998 (the English text signed by the President) on 28 September 1998, which was publishedin Government Gazette (GG) 19323 of 7 October 1998. The date of commencement of Act 67 of 1998 was, however, still to be proclaimed by Proclamation in the Government Gazette. Section 6 of Act 67 of 1988 specifically provided that:

"6

Short title

(1)

This Act is called the Magistrates' Courts Amendment Act, 1998, and shall take effect on a date fixed by the President by proclamation in the Gazette.

(2)

Different dates may be so fixed in respect of –

(a)

different items contained in Schedule 2 to the principal Act; and

(b)

different areas in the Republic."

[8]

On 20 April 2000, two years after Act 67 of 1998 was assented to, Proclamation R24 was published in Government Gazette GG 21124 of 20 April 2000. Proclamation R24 reads as follows:

"No. R. 24, 2000

COMMENCEMENT OF THE MAGISTRATES' COURTS AMENDMENT ACT 67 OF 1998

Under section 6 of the Magistrates' Courts Amendment Act, 1998 (Act No. 67 of 1998), I hereby fix 20 April 2000 as the date on which section 2 of the said Act, in so far as it inserts section 93ter (10) and (11) in the Magistrates' Courts Act, 1944 (Act No. 32 of 1944),

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and substitutes section 93ter (5) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), shall come into operation.

Given under my Hand at Pretoria this Seventeenth day of April, Two thousand.

T. M. MBEKI

President

By Order of the President-in-Cabinet:

P. M. MADUNA

Minister of the Cabinet"

[9]

Therefore, only section 2 was put into operation with effect from 20 April 2000 in so far as it substitutes sub-section (5) and inserts sub-sections (10) and (11). Section 93ter (5), (10) and (11) of the Magistrates' Courts Act 32 of 1944 deals with the oath or affirmation every assessor shall take upon registration on the roll of assessors (sub-section 5) and applications for recusal of an assessor (sub-section 10) and the death of an assessor (sub-section 11).

[10]

In so far as the ground of appeal states that ". . . it is a requirement of the law in terms of the provisions of section 2 of the Magistrate's Court Act ("MCA") 67 of 1998, that he (the learned Regional Magistrate) must be assisted by two assessors, unless he (the appellant) request that the trial proceed without the assessors, and this rendered the trial unfair.", in respect of a charge of rape, this appears to be predicated rather on the substitution of section 93ter which was envisaged by section 1(a) of the Magistrates' Courts Amendment Act, Act 118 of 1991. Under the heading "Substitution of Section 93 ter of Act 32 of 1944, as substituted

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by section 10 (2) of Act 91 of 1977 and amended by section 1 (a) of Act 118 of 1991", the following is stated:

"2.

The following section is hereby substituted for section 93 ter of the principal Act:

"Magistrate to be assisted by assessors at certain criminal proceedings.

93 ter (1) In this section assessor means a person where name is registered on a roll of assessors, in terms of regulation referred to in section 93 quat.

(2) A judicial officer shall be assisted by two assessors at the trial of an accused person in respect of any offence referred to in Schedule 2."

[11]

Schedule 2 states:

"Schedule 2

Offences in respect of which judicial officers must be assisted by two assessors in terms of section 93 ter (2):

1.

Murder

2.

Rape

3.

Robbery, where serious bodily harm has been inflicted on the victim.

4.

Assault, where serious bodily harm has been inflicted on the victim.

5.

Indecent assault."

[12]

Section 2 read with Schedule 2 of Act 117 of 1991, was never put into operation and similarly the remainder of section 93ter as substituted by section 2 of Act 67 of 1998, is still not operative and will seemingly never become operative. In this regard an amendment of section 93ter is pending in Parliament in which the

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peremptory requirement to sit with assessors in murder matters will no longer be a requirement. See: General Notice 1678 of 2023: Publication of Explanatory Summary of the Judicial Matters Amendment Bill, 2023 and the subsequent publication of the Judicial Matters Amendment Bill 7 of 2023.

[13]

It axiomatically follows that the amendments in terms of section 2 read with Schedule 2 of Act 67 of 1998 was never promulgated and is therefore not the current applicable law and will seemingly never be law. It was therefore not necessary for the learned Regional Magistrate...