REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Case No: A231/10

(1)	REPORTABLE: YES 
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

CHANA BERNARD JEKE

and

THE STATE

J U D G M E N T
______________________________________________________________

MBHA J

[1]	The appellant and his co-accused were convicted in the Germiston Regional Court on one count of robbery committed with aggravating circumstances and two counts of murder and sentenced to ten years imprisonment for robbery and life imprisonment on each count of murder.  He now appeals against the convictions and sentences imposed.
[2]	This appeal also turns on the question whether or not the directive by the learned magistrate that the trial must continue before him without the assessors that were previously appointed by him in terms of section 93ter (1) of the Magistrates Courts Act 32 of 1944 (the Act), was irregular and if so whether this vitiates the fairness of the trial.

[3]	I first deal with the issue concerning the decision to proceed without assessors during the trial in the court a quo, and thereafter consider the merits of the appeal.

[4]	It is common cause that the trial of the accused commenced on 3 November 2008 before the court consisting of the learned magistrate Mr Mashimbe, and two assessors Mr Ngonyama and Dr Winnaar, who were appointed in terms of section 93ter  (1) of the Act.

[5]	The trial proceeded and adjourned after the State had led two witnesses.  During cross examination of the third and last witness for the State, Mr Victor Karabo Mohale (Mohale), the prosecutor drew the attention of the court that the trial was at that stage continuing without the presence of the assessors referred to above.  The learned magistrate responded saying he needed to “… dismiss the services of the assessors…” for their inability to continue with their functions, meaning that he was releasing them from duty as assessors because of their inability to continue as such.  Both counsel for the accused, namely Mr Soeleman for appellant’s co-accused, and Mr Botha for the appellant, confirmed that they were agreeable and comfortable with the trial continuing in the absence of the assessors.  The trial then continued without the assessors.

[6]	According to the judgment of the learned magistrate, before the trial resumed for the leading of the evidence of Mohale, the learned magistrate summoned counsel for the State and for both accused to his chambers and explained the predicament he was in regarding the absence and inability by the assessors to continue with the trial.  Everybody agreed that there was proper justification to discharge the assessors from duty and that the trial had to continue and not start de novo.   Clearly, when the proceedings resumed the learned magistrate merely continued with the trial sitting alone without first putting it on record that he had decided to release the assessors for their inability to perform their duties and that he was going to continue with the trial and not order that it should start de novo.  As I have pointed out, it was only during the cross examination of Mohale when the anomaly was corrected.

[7]	From the judgment of the court a quo, the reasons for the dismissal of the assessors were as follows:

7.1	The usage and appointment of lay assessors was a pilot project 
initiated by the Department of Justice to involve the community in the administration of justice in the country.  

7.2	Assessors appointed were paid stipulated daily allowances for services rendered and transport costs for attending court.

7.3	Because of a depleted budget, the Department of Justice terminated the usage of assessors altogether and payment for their services and transport costs was no longer forthcoming.

7.4	As a result of non payment, both Mr Ngonyama and Dr Winnaar made it clear to the learned magistrate they would no longer be available to act as assessors. 

7.5	The learned magistrate was accordingly of the opinion that the assessors were unable to continue to act as assessors.

[8]	Section 93ter (1) of the Act provides as follows:

	“(1) 	The judicial officer presiding at any trial may, if he deems it                
		expedient for the administration of justice –
(a)	before any evidence has been led; or
(b)	in considering a community-based punishment in respect of any 
person who has been convicted of any offence,

summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors:  Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors whereupon the judicial officer may in his discretion summon one or two assessors to assist him.” (emphasis added)

[9]	The transcribed record shows that the learned magistrate summoned the assessors to assist him in compliance with the proviso in subsection (1).  The word “shall” in the proviso indicates that in a case where the accused is charged with murder, the magistrate is compelled to be assisted by two assessors unless requested otherwise.  There is nothing in the record indicating that the appellant and his co-accused requested at the beginning of the trial, that they would prefer to proceed without assessors.  In my view, this is indicative therefore, that they preferred to proceed with assessors.

[10]	Section 93ter (11) of the Act provides that:

	“(11)(a)if an assessor –
(i)	dies;
(ii)	in the opinion of the presiding officer becomes unable to act as 
an assessor;
(iii)	is for any reason absent; or
(iv)	 has been ordered to recuse himself or herself or has recused 
himself or herself in terms of subsection (10)

at any stage before the completion of the proceedings concerned, the presiding judicial officer may, in the interests of justice and after due consideration of the arguments put forward by the accused person and prosecutor –

(aa)	direct that the proceedings continue before the remaining member or members of the court;
(bb)	direct that the proceedings start afresh; or
(cc)	in   the  circumstances  contemplated  in  subparagraph  (iii), 
postpone the proceedings in order to obtain the assessor’s presence:

Provided that if the accused person has legal representation and the prosecutor and the accused person consent thereto, the proceedings shall, in the circumstances contemplated in subparagraphs (i), (ii) or (iv), continue before the remaining member or members of the court”

[11]	The issue that must be determined is whether or not in the circumstances of the matter, the assessors became “unable” to act as assessors.  In S v Malindi and Others 1990 (1) SA 962 (A) at 969 paragraph D-F, Corbett CJ stated that the “word ‘unable’ … conveys to my mind an actual inability to perform the function of acting as an assessor.  Such an inability could derive from an inherent physical or mental condition or possibly also a situation which physically prevented the assessor from attending the trial, such as for example indefinite detention here or in a foreign country” 

[12]	The appellant submits that on the facts, the absence of the assessors - because of non-payment for their services – does not amount to an inability to act as such.  Reliance was placed on the decision in S v Petersen and Another 1998 (2) SACR 311 (C).  The facts of the case, a special review, were briefly that the trial of the accused began before a court constituted by a magistrate and an assessor.  After attending court until the closure of the State’s case, the assessor refused to come to court.  After some postponements, the presiding magistrate recorded that the assessor refused to come to court for reasons unknown to him and stated that as the trial could not proceed before the court as originally constituted, he recommended that the proceedings be set aside and that the trial start de novo.

[13]	The court referred to Malindi (supra) and remarked that it was clear that where an assessor decides that he or she will not sit further in the trial, it could not be said that the assessor had become “unable” or “incapable” of acting as such.  Furthermore, this was so whether the reason for the refusal to continue was a good reason (e.g a proper recusal) or a bad reason.  The court reiterated Corbett CJ’s dicta that the word “unable” conveyed an actual inability to perform the function of acting as an assessor.

[14]	In my view the reasoning in Petersen and Another (supra) is with respect, unpersuasive.  As the reasons for the assessor’s refusal were unknown, it was simply not proper to merely conclude that the assessor was “unable” to continue to perform as such.  What if it was eventually shown for example, that the assessor or his family were factually being intimidated or threatened with harm if he continued to act as such?  Surely, if the assessor deemed the threats to be serious and refused to come to court, it cannot by any stretch of imagination be said that he was still physically able to continue to act as an assessor.

[15]	In any event the facts of this case are in particular distinguishable as the reasons for the assessors’ refusal are known, unlike in Petersen, where the reason for the assessor’s refusal to continue with the trial was unknown.  Moreover, the peculiarities of the reason for the absence of the assessors ought to be a crucial factor because any concept of “unable” must be “fact specific”, an aspect addressed more fully hereafter.  Furthermore, sight must not be lost of the important fact that the Act does give a court a discretion to formulate an opinion as to whether or not under the circumstances prevailing at the time, it can be said that an assessor is “unable” to act as an assessor.  The proper formulation of an opinion about an inability of an assessor to continue participating implies more than a mechanical fact finding process;  the magistrate unavoidably, must make a value choice, informed by policy considerations about the administration of justice and chiefly about the avoidance of a failure of justice.  In Malindi, the policy choice excluded factors pertinent to grounds for recusal.  Furthermore, the approach I adopt in fact is informed by the minority judgment of MT Steyn JA in S v Gqeba and Others 1989 (3) SA 712 (A) at 718-719, where an assessor sought, during a trial, to be discharged on the ground that he had wanted to be with his only child, a daughter, who was in hospital having been diagnosed with terminal cancer.  The learned judge referred to The Oxford English Dictionary (Vol XI) definition of the word “unable”, meaning, “Not able, not having ability or power, to do or perform (undergo or experience) something specified (chiefly of persons)”, and after considering the emotional attachment that existed between the assessor and his daughter, he held that:

(a)	the ability to pay proper attention to judicial proceedings is essential for the due performance of an assessor’s task; and

(b)	should an assessor become incapable of paying such attention he would, whilst such inability lasts, be unable to act as an assessor (emphasis added).

In my view this approach falls within what Corbett CJ had envisaged in Malindi, when he also spoke of an ability deriving from a mental condition or a (any) situation which physically prevented the assessor from attending the trial.  This notion, derived from Malindi, was expressly acknowledged by the majority in Gqeba (at 716E and 717A) but they differed from the minority judgment in that they construed the decision of the judge a quo to release the assessor to have been based on compassionate grounds not on inability.  In this regard, the present case differs as the magistrate applied his mind to the question of whether or not there was an inability to continue to serve.

[16]	I am of the view that the learned magistrate correctly formed the opinion that the assessors had become unable to act as such, and that it would have been inappropriate to postpone the matter and rule that the trial start de novo, after he had considered the following factors; namely

1.	The total collapse of the pilot project by the Department of Justice as a result of a depleted budget resulting in the sudden withdrawal from court of the services of assessors.  This dimension of the facts is most important because it was upon the premise of this project that the two individual assessors accepted office in the first place;  ie, in the absence of the project, the two individuals would never have been available to join the magistrate in the trial and it was the very project that facilitated their “ability” to act at the outset of the trial.  Its collapse also collapsed their “ability” to serve;  ie as paid full time assessors.

2.	Claims by assessors for court services rendered would not be paid due to the unavailability of budget.

3.	The fact that there were no prospects of the pilot project being resuscitated in the near future.

4.	The learned magistrate could not be able to cause the assessors to continue at his own expense.

5.	The fact that the court could not order the assessors’ participation at their own expense.  It ought to follow that if an assessor cannot be compelled to attend, then from the perspective of the administration of justice, such assessor is “unable” to participate.

6.	The stage at which the trial was at when the assessors were dismissed namely, that Mohale was the last State witness to testify. 

[17]	Therefore, after the magistrate formed his opinion, he was wholly justified in moving to the next step;  ie to address the requirements of the proviso to the section requiring informed consent by the parties.  Most importantly, the court a quo correctly took into account the views, input and argument by the prosecutor and both defence counsel, as well as the interests of justice, before directing that the matter should proceed.  As pointed out already, all counsel were agreed that the trial should proceed to finality without the assessors.

[18]	Section 93ter 11 (iii) specifically deals with a situation where the assessor is for any reasons absent.  In such a case, the presiding officer must postpone the proceedings to obtain the assessors’ presence.  However, where it will be impossible to obtain or secure the assessors’ presence, the court may in the interests of justice direct that the proceedings continue before the remaining member or members of the court, or direct that the proceedings start afresh.

[19]	In light of the reasons I have alluded to in paragraph [16] above, I am of the opinion that the assessors attendance was impossible to procure.  Furthermore, as it was almost at the end of the State’s cases, it would not have been in the interests of justice, which ought to be the chief and overriding factor, to order that the trial start de novo.

[20]	In the circumstances I find that the court a quo did not misconstrue the section, correctly found that the assessors were unable to act as such, and that it was properly constituted when it proceeded with the trial to its finality.

MERITS

[21]	Shaun Fernandez Sebastian (Shaun), whose parents were killed during the robbery, Samuel Mkhwanazi (Mkhwanazi), who was employed by the Sebastians at the shop where the robbery occurred, and Mohale, an accomplice and participant in the robbery who was convicted separately and sentenced to 15 years imprisonment for taking part in the commission of the crimes, were the State’s main witnesses.  The evidence of Shaun and Mkhwanazi is summarized as follows:

21.1	The two deceased in the counts of murder and their son Shaun owned a shop, Platinum Mini Market, situated at Lower Boksburg Street, Germiston.  On 2 May 2007 at approximately 19h00, the two deceased, Shaun and Mkhwanazi locked and secured the shop and got into their vehicle which was parked inside the premises and prepared to leave.  The two deceased were seated in the front of the vehicle whilst Shaun and Mkhwanazi were seated at the back.

21.2	As the vehicle reversed out of the premises a group of approximately five people approached the vehicle.  Shots were fired at the vehicle and both Shaun’s parents were struck by bullets.  Two of the assailants opened the doors of the vehicle and dragged both deceased out of the vehicle and back to the premises.  In that process Shaun’s father was again shot at point blank in the chest.

21.3	The assailant’s forced Shaun to drive the vehicle back into the premises and forced him to re-open the shop and switch off the alarm.  An amount of approximately R8000,00 was robbed from the shop.  The robbers also took a pump action shotgun as well as two celllphones which were in possession of Shaun’s parents who died at the scene of gunshot wounds.

21.4	During the trial Shaun pointed out appellant’s co-accused as one of the assailants.  He also knew Mohale, the third State witness, who was a regular customer at the store.  Mkhwanazi could not identify any of the robbers.

[22]	Mohale’s evidence is summarized as follows:

22.1	He has been convicted and sentenced for the offences in question after pleading guilty.

22.2	He and the appellant were friends and he also knew the appellant’s co-accused.  Early in the morning on 2 May 2007, the appellant came to his home and suggested they should go and rob a certain store.  As he was busy collecting empty bottles for selling he could not go along.  The appellant came back to fetch him later that evening at around 19h00.  They later met with two others namely the appellant’s co-accused and Koyani who managed to evade arrest.

22.3	On the way to the shop, which he knew because he used to buy items there, the robbery was planned and each was allocated a task.  He was to remain outside and guard the premises whilst the appellant’s co-accused who was in possession of a firearm, had to threaten the victims during the robbery.  The appellant who also had a firearm, and Koyani, were to take the money.

22.4	On arrival at the shop and as the deceased’s vehicle was reversing, the appellant’s co-accused fired shots both on the driver’s and passenger’s sides of the vehicle.  Thereafter Koyani and the appellant opened the doors and dragged both deceased out of the vehicle.  They also took their cellphones and dragged them back into the premises.

22.5	Shaun drove the vehicle back into the premises.  Shortly thereafter the appellant, his co-accused and Koyani came back with robbed money.

[23]	The appellant denied any involvement in the offences and raised an alibi.  He testified that on 2 May 2007, at approximately 15h00, he left Gauteng Province for the Lebombo Border Post.  He said he slept over at the border gate, crossed the border the following morning on 3 May 2007 into Mozambique and returned to South Africa on 17 May 2007.  He submitted his passport to the Court as proof of his movements.

[24]	The learned magistrate correctly found that Mohale’s evidence was corroborated by that of Shaun, in particular:

24.1	That the robbery and murders took place on 2 May 2007 at around 19h00.

24.2	That the appellant and his co-accused were armed with firearms and the shooting started when the deceased’s motor vehicle was reversing out of the premises.

24.3	That both deceased were shot and dragged back to the shop and robbed of their cellphones and a pump action shotgun by the appellant and his co-accused.

24.4	That the motor vehicle was driven back to the premises by Shaun whereafter the shop was robbed of money; and

24.5	that the appellant’s co-accused was also present during the robbery.

[25]	Significantly, Mohale’s testimony that he knew the appellant and that they had been friends for some time and that he had also known the appellant’s co-accused was never disputed.

[26]	In his analysis of evidence, the learned magistrate was alive to the danger of convicting the appellant and his co-accused on the evidence of Mohale who was an accomplice to the commission of the offences.  Clearly when he gave evidence, Mohale anticipated no benefit in return for his evidence implicating the appellant and his co-accused as he was already convicted and sentenced.

[27]	In R v Gumede 1949 (3) SA 749 (A) at 756, Van den Heever JA observed that because the accomplice had already been convicted and sentenced, his evidence would be regarded with considerably less suspicion.  In Isaacs and Another v S 2006 (2) ALL SA 163 (c) at paragraph [31], Yekiso J said that since an accomplice has already been convicted and sentenced, any hope for him of either being indemnified or being found not guilty has fallen away, his intimate knowledge of the prior planning and the commission of the crime itself, far from being a basis for not trusting his testimony, ought to be regarded as adding value to it.

[28]	In my view the court a quo correctly accepted Mohale’s evidence even though he was an accomplice to the offences, and correctly convicted the appellant.  I am satisfied that the only reason why Mohale implicated the appellant in the commission of the offences is because they were both present and acted together with the appellants’ co-accused and Koyani in the planning and execution of the robbery during which the two deceased were shot and killed.

[29]	The court a quo correctly rejected the appellant’s version that at the time of the commission of the offences he was not present and was on his way to Mozambique and that his alibi defence did not rule out the possibility of him being in Germiston at the scene of the crime, and leaving for the border post immediately thereafter.  Sight must not be lost of the fact that the appellant’s passport indicated that he entered Mozambique only on the 3rd May 2007.  His explanation was not, in light of the overall evidence, reasonably possibly true and was correctly rejected.  

 [30]	For all the reasons stated, the appeal against all the convictions cannot succeed.

AD SENTENCES

[31]	The learned magistrate properly took into account the personal circumstances of the accused, the seriousness of the offences and the interest of the community.  In the end, he correctly found there were no substantial and compelling circumstances in the case that would have justified a departure from imposing the prescribed minimum sentences in terms of the Criminal Law Amendment Act, No. 105 of 1997.  Furthermore, the aggravating factors which far outweighed the personal circumstances of the accused, were the following:

31.1	The gravity and seriousness of the offences which were pre-meditated and well planned.

31.2	The appellant and his co-perpetrators had operated as a gang.

31.3	The appellant and his co-accused were both armed with firearms.

31.4	Two innocent lives were lost.  The elderly Mr Sebastian was shot a second time in the chest at close range and in cold blood.  The murders were thus not only callous but were brutal.

31.5	Shaun directly witnessed the brutal slaying of his parents and as can be expected, the emotional scars will remain with him for a long time to come.

31.6	A large amount of cash was taken during the robbery none of which was ever recovered.

[32]	However, the learned magistrate did not, in my view, sufficiently consider the cumulative effect of the sentences he imposed, in particular by not ordering the sentences to run concurrently.  I am of the view that as all three convictions arose from the same incident and are connected in time and place, the court should have ordered that the sentences imposed on count 1 and count 2 be served concurrently with the sentence imposed on count 3.

[33]	I accordingly make the following order:

33.1	The appeal against the convictions is dismissed.

33.2	The appeal against the sentences is upheld and the sentences imposed by the court a quo are set aside and replaced with the following:

Count 1 – 10 years imprisonment
Count 2 – life imprisonment
Count 3 – life imprisonment

It is ordered that the sentences imposed in respect of counts 1 and 2, shall run concurrently with the sentence imposed in respect of count 3.

_____________________________
                 B H MBHA
JUDGE OF THE SOUTH GAUTENG 
HIGH COURT, JOHANNESBURG

I agree

_____________________________
	   R T SUTHERLAND
JUDGE OF THE SOUTH GAUTENG 
HIGH COURT, JOHANNESBURG

COUNSEL FOR APPELLANT				:DJF DU PLESSIS

INSTRUCTED BY				:JOHANNESBURG 
								 JUSTICE CENTRE

COUNSEL FOR THE STATE				:RG MUVHULAWA
								
INSTRUCTED BY						:DEPUTY DIRECTOR 
								 OF PUBLIC
								 PROSECUTIONS

DATES OF HEARING					:24 JULY 2012 

DATE OF JUDGMENT					:30 AUGUST 2012