FINAL	NOT REPORTABLE

IN THE KWAZULU-NATAL HIGH COURT PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA

CASE NUMBER	:	AR 348/2018

HEARD AT	:	PIETERMARITZBURG

DATE	:	19 OCTOBER 2018

MSIZI MBUYISELWA MBATHA

versus THE STATE

BEFORE
THE HONOURABLE JUDGE PRESIDENT JAPPIE
and
THE HONOURABLE JUDGE MBATHA

FOR THE APPELLANT	:	MS L MARAIS

FOR THE RESPONDENT	:	ADVOCATE M E MTHEMBU

INTERPRETER	:

TRANSCRIBER	:	KERRY DICKINSON
DATE TRANSCRIBED	:	25 OCTOBER 2018

CONTRACTOR
Sneller Recordings (Pty) Ltd • P O Box 1193 • Pietermaritzburg • 3200 Tel 033 3425256 • Fax 033 3941190

JUDGMENT	(19 OCTOBER 2018)

MBATHA J	The    appellant was convicted by the regional court, Ixopo, on

6 July 2017 of one count of murder read with the provisions of Section 51 of the Criminal Law Amendment Act 105 of 1997.
5	The	court	found	that	there	were	substantial	and	compelling

circumstances and sentenced the appellant to twenty years’ imprisonment.

The appellant was refused leave to appeal by the trial court.  Then  on 7 August 2018 the appellant’s petition on conviction and sentence was granted by the Judge President of this Division of the High Court.
10	The  issue  raised  by  the   appellant  is  that  the  regional        court

magistrate had not set with assessors as required by Section 93ter(1) of the Magistrate’s Court Act 32 of 1944 and that the appellant had not requested the learned magistrate not to sit with assessors in terms of the proviso to the subsection.  The provision provides as follows –
15	“93ter Magistrate may be assisted by assessors

(1)	The judicial officer presiding at any trial may, if he deems it expedient for the administration  of  justice –
(a)	evidence has been led; or

20	(b)	in	considering	a	community-based

punishment in respect of any before 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
25	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
5	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
10	with	without	assessors,	whereupon	the

judicial officer may in his discretion summon one or two assessors to assist him.”
It is trite that the appointment of assessors is peremptory in murder cases in the regional court, save where the accused dispenses with their
15	appointment.

In S v Gayiya 2016 (2) SACR 165 (SCA) the court held that where the regional court had not sat with assessors and the accused had not dispensed with their appointment the court was not properly constituted and that the convictions and sentences had to be set aside.
20	In  this  matter,  although  the  appellant  was  legally      represented

throughout the trial there is nothing on the record that suggests that he was ever made aware of this requirement or given an option to elect whether the court should sit with or without the assessors. There is no record of any discussion with the appellant regarding the provisions of Section 93ter(1)    in
25	the entire record.	It is only mentioned in the judgment which, in my view,

appears to have been an afterthought at the instance of the learned magistrate.
The respondent has conceded that this was a material irregularity as the provision is peremptory.
5	Accordingly I find that the court was not properly constituted.   The

conviction and sentence must be set aside as being incompetent within the meaning of Section 32(a) of the Criminal Procedure Act.
I propose the following order, that –

•	THE APPEAL BE UPHELD.

10	·   THE CONVICTION AND SENTENCE BE SET ASIDE.

•	THE	APPELLANT	BE	RELEASED	FROM	CUSTODY	WITH

IMMEDIATE EFFECT.

JAPPIE JP	I agree and it is so ordered.

15