S v Sparks and Another

• Jurisdiction: South Africa
• Judge: Holmes JA, Potgieter JA and Trollip JA
• Judgment Date: 18 May 1972
• Hearing Date: 09 May 1972
• Citation: 1972 (3) SA 396 (A)
• Court: Appellate Division

B Holmes. J.A.:

This is an appeal against sentence. There is also a special entry, and a question of law reserved.

The two appellants, each of whom was represented by a senior counsel of standing, were convicted by DIEMONT, J., sitting with assessors in the C Cape Provincial Division, on a considerable number of charges of theft (41 in the case of the first appellant, and 40 in the case of the second appellant) to which they had pleaded guilty.

Thereafter evidence was led, including that of the appellants, each of whom said in essence that he had not realised, when the thefts were D committed over a period of a few years, that he was doing anything blameworthy because the chairman of the company (now deceased) had sanctioned the procedure. This explanation of unawareness of blameworthiness was rejected by the trial Judge as untrue.

The first appellant was sentenced to a fine of R5 000, payable by E instalments; and also to imprisonment for four years, of which three years were suspended. The second appellant was sentenced to the same fine; and also to imprisonment for three years, of which two-and-a-half years were suspended.

It will be convenient to deal first with the special entry and the question of law reserved. Each was in the same terms, namely -

F 'Whether the proceedings were irregular or not according to law in so far as the presiding Judge ruled that the assessors were functus officio in the regard to the issues of fact which arose after the conviction of the accused.'

The learned trial Judge sat with two assessors. At the outset, the appellants pleaded guilty to the counts in question, and they were thereupon found guilty. This appears from the foot of p. 19 of the G record. Thereafter, evidence was led in regard to sentence. The assessors were not then asked to retire; nor is this done in practice. Indeed, one's experience is that it is usual for the Judge to discuss the sentence with the assessors. The special entry, and the question of H law reserved, arose in this case because the assessors were not ad idem with the learned Judge, or with each other, in regard to the effect of the evidence led in mitigation. The learned Judge decided that his view must prevail. The appellants contend that, after verdict, assessors are de jure entitled to a voice on any issues of fact arising in connection with sentence, even to the point of binding the Judge if they differ from him.

The argument on behalf of the appellants was based primarily on sec. 109 (2) of Act 56 of 1955, as amended. It reads -

Holmes JA

'(2)

The Judge presiding at the trial may summon to his assistance any person who has, or any two persons who have, in the opinion of the Judge, experience in the administration of justice, or skill in any matter which may have to be considered at the trial, to sit with him at the trial, as assessor or assessors.'

A The argument was that the word 'trial', bearing in mind its use in certain other sections of the Act, can include proceedings after verdict. As to that, one must look also at sub-sec. (3), which is in the following terms -

'(3)

Before the trial the said Judge shall administer an oath to the person or persons whom he has so called to his assistance that he B or they will give a true verdict, according to the evidence upon the issues to be tried, and thereupon he or they shall be a member or members of the court...'

As to that, counsel for the appellants urged, after a diligent scrutiny of other sections of the Act, that 'the issues to be tried' can include factual issues arising after conviction; and that 'verdict' seems no C more than the finding on any issues of fact.

In my view, the foregoing two sub-sections must be read together, in order to appreciate their context and meaning. In that light, the words 'trial' 'verdict' and 'the issues to be tried', in their ordinary meaning, do not refer to any proceedings after conviction. In D particular, 'verdict' is traditionally understood to refer to the decision whether the accused is guilty or not guilty. Indeed, on a plea of guilty being entered, the 'trial' ends, since there are then no further issues to be tried in regard to verdict; cf. sec. 173. This leaves the question of sentence, including facts relating thereto, exclusively within the jurisdiction of the Judge. Findings of E extenuating circumstances in murder trials provide no exception. Whether made together with the verdict of guilty or thereafter, that finding is part of the verdict; see S. v Shabalala, 1966 (2) SA 297 (AD) at p. 300B. The same may be said in regard to findings of aggravating circumstances in housebreaking or robbery trials; see sec. 330 (1) of Act 56 of 1955.

F In the result, we hold that an assessor's function does not extend beyond verdict.

This is also the view of text-book writers, Gardiner and Lansdown, South African Criminal Law and Procedure, 6th ed. (1957), vol. 1, p. 348 say this -

'It is to be observed that the assessors are members of the Court G only for the purposes of the trial, and that their oath is to give a true verdict according to the evidence upon the issues to be tried....

A trial is the determination of the matters put in issue, and it concludes with the verdict, or, in the case of a verdict of guilty of murder, with the decision of the question whether there are extenuating circumstances. The assessors have therefore no part with the Judge in the assessment or the imposition of the sentence, although the Judge will, as a general rule, seek consultation with them in the matter.'

H That statement stands as it appeared at p. 261 of vol. 1 of the 4th ed. (1939) under the editorship of Mr. Justice LANSDOWN, who was one of the original authors of the work.

In Suid-Afrikaanse Strafproses by Hiemstra (Mr. Justice HIEMSTRA) there is the following succint passage at p. 131 -

'Vonnis is die funksie van die Regter alleen. Die assessore kry in die wet alleen die funksie van die geskil voor die hof. By moord sluit dit die vraag in of daar versagtende omstandighede is. Daar is egter niks onreëlmatigs in om vonnis met die assessore te bespreek nie.'

Holmes JA

To sum up, when the appellants pleaded guilty there was no issue between them and the State, in regard to verdict, which required to be tried. On their resultant conviction, the remaining issue related to sentence; and it was the function of the learned Judge alone to decide it. In the A result, the special entry must be dismissed, and the question of law reserved must be answered in favour of the State. (We have assumed, without deciding, in favour of the...