Republic of South Alilca

IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

Case number: SS116/07

versus
M MTAKATI AND 9 (NINE) OTHERS

REASONS FOR ORDER IN TERMS OF S147 OF THE CPA 
NDITA, J:
[1]     The accused persons in this matter are facing the following counts: 
1.	Robbery with aggravating circumstances;
2       Robbery with aggravating circumstances; 
3.      Murder.
4 Attempted robbery with aggravating circumstances. 
5.	Attempted robbery with aggravating circumstances
6.       Robbery with aggravating circumstances;
7. 	Robbery with aggravating circumstances.
8.	Attempted murder;
9.	Attempted murder,
10.	Attempted murder;
11.	Attempted murder:
12.	Unlawful possession of firearms;
13. Unlawful possession of ammunition.
The trial commenced on 25 February 2009 and the court was constituted of the presiding judge and two assessors, Mr D Grootboom and Mr L R Godla, a local attorney and director of the legal firm. Godla & Partners Inc

[2]     After the trial had continued for six (6) terms and two months. Mr Godla in a letter received on 2 March 2011. advised the court that he is no longer able to continue as an assessor as he undertook to so serve on the understanding that the trial would be finalised within the estimated period of two terms, and that because the trial has continued for an additional six terms, his legal practice and livelihood had been severely compromised. It is necessary to refer to a portion of Mr Godla's letter

After the fusl two terms lapsed I was concerned for my legal practice since I am a practicing attomoy and director of Godla and Partners Inc I however elected to conlinue to serve as an assessor for two more terms on tlie basis that it is indeed a criminal matter which may take sometimes a little longer than what management at any high court may honestly predict

The matter has now run for more than four terms and approximately two years My legal practice mid livelihood has been compromised to the extent that
1.   Complaints have been laid against me with the Law Society in relation to my commitment as an Assessor

3. Clients demanding myself to attend to their matters have withdrawn their clientele but for my commitment as an Assessor
4. Income at Got Ha and Partners Inc Has been severely affected to the extent that we are sometimes not able to

(a) Pay staff salaries
(b) Pay office rent
(c) Pay instalments on business vehicles.
(d) Pay personal bonds of houses.
(e) Pay finance instalments on personal vehicles.
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It is also my humble contention that the decision in S v Khumato and Others 2006 (9) BCLR 1117 (N) supports my advancement of the above circumstances as constituting such as to have myself to be excused in the opinion of yourself Honourable Justice Ndita fiom further assessor duties in this matter as myself having become unavailable to act as an assessor under the present conditions and circumstances

[3]     It is trite law that an accused person has the right to have the trial completed before the court as it was composed at its outset. The letter from Mr Godla therefore brought to the fore the question of the applicability s 147 of the Criminal Procedure Act 51 of 1977 The section provides as follows
'147 Death of incapacity of assessor
(1) If an assessor dies or. In the opinion of the presiding judge, has become unable to act as assessor at any time during a trial the presiding judge may direct •

(b) That the trial start do novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as an assessor

[5]     The case for the prosecution was that the unfortunate impact of the trial on Mr Godla's legal practice and livelihood is regrettable however, there is judicial harmony that a mere desire to be discharged on compelling personal grounds does not amount to inability to act as envisaged in section 147 (1) Furthermore. Mr Godla's letter revealed no more than compelling personal grounds. Mr Barnard, who represented accused no 1 submitted that it would not be competent for this court to release Mr Godla on the basis of the reasons advanced as the law is clear that he must be unable to act All remaining counsel shared this view. However Mr Van Rensburg who appeared for accused no 3 submitted that although the assessor undertook to serve well aware of the possibility of undue delays, when regard is had to

The Ruling
[6)    After hearing submissions from both the defence and the state, and carefully considering all the relevant factors as well as the applicable law. I made a direction in terms of s 147 (1) (a) of the Act and reserved the reasons thereof. I herewith provide my reasons for the ruling.

The Law

term was wide enough to cover physical and mental inability. It was further

held that severe emotional distress if prolonged might render an assessor

unable to act, but a mere desire to be discharged on compelling personal
grounds does not amount to inability to act unless the trial judge forms an
opinion that the assessor is incapable of functioning as such The Appellate

[8]    The consistent approach of the courts to the release of an assessor is understandable as the issue of an accused having his case considered by a properly constituted forum is crucial and conflated with the right to a fair trial Indeed it would be most undesirable to have assessors willy-nilly deciding to be excused from trial when it suited their purpose to serve. Neither should an accused be unnecessarily deprived of the benefits and safeguards arising out of a trial with a judge and two assessors. However, this issue is not only a matter of form, but also of substance as well because two assessors can overrule a judge on the merits Each matter should of course be decided on its merits. In the present matter, it is not a question of Mr Godla willy-nilly deciding to excuse himself, the substantive reasons he has submitted clearly
demonstrate that a lot of injustice will result to this person, legal firm and clients whose cases he cannot attend to For all it is worth, Mr Godla has, to his detriment served far more than the estimated duration of the trial. That to his credit shows commitment. It is not only a question of his compelling personal reasons but also about justice being denied or delayed to numerous clients whose cases he cannot attend.

Analysis
[9]     Mr Godla intimated that his incapacity to continue serving arises from an error in the assessment of the trial duration. Whilst an assessor is entitled to rely on such assessment by the State, (which is expected to have all the information necessary to make a proper and informed estimate of the period for which a trial is likely to run}, it has become common knowledge that criminal trials have surprise twists and turns which usually have an impact on their duration. After all, the State in this matter provided only an estimate, albeit unreasonable, given the fact that the accused are facing thirteen counts arising at different scenes and are represented by ten different counsels. Notwithstanding the estimate, nothing precluded the assessor from seeking further information, for example, the number of witnesses the prosecution intends to lead, and whether there is a likelihood of holding trials within a trial before agreeing to serve

[10]    Mr Godla's letter clearly demonstrates that due to the compelling circumstances he has alluded to in his letter, his commitment to the trial as a
member of the court is questionable and may negatively impact on the trial itself. To this end, he states that;
' The latter being applicable insofar as my present circumstances affects my dignity personal status and personal needs so as to bring into question my commitment first and foremost as an assessor and member of the Honourable Court which may cause the present trial irreparable harm

"The right to a fair trial... is broader than the specific rights set out... It embraces a concept of substantive fairness which is not to he equated with what might have passed muster in our criminal courts before the Constitution came into force  section 25f3) has required criminal trials to be conducted with ... 'notions of basic fairness and justice". It is now for all couris hearing criminal trials or criminal appeals to give content to those notions'

Directions regarding further conduct of the proceedings

(a) where he decides any question of law. including any question under paragraph (c) of the proviso to section 145(4) whether any matter constitutes a question of law or a question of fact, give the reasons for his decision;
(b) whether he sits with or without an assessor, give the reasons for the decision or finding of a court upon any question of fact:

(d) where he sits with assessors and there is a difference of opinion upon any question of fact or upon the question referred to in paragraph (b) of the proviso to section 145 (4). give the reasons for the decision or finding of the member of the court who is m the minority or where the presiding judge sits with only one assessor of such an assessor'

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The supposed threat against the right to fair trial cannot be said to be invasive m the circumstances of this case I emphasize here that if the Judge does not agree with the assessor, reasons of such findings will lie recorded and the defendants will bo in a better position to ascertain the nature of the proceedings and reasons for all conclusions on the facts and the law This cannot be said to he more invasive the infringement on the accused right to a fair trial if it is balanced against the competing societal interest in promoting the efficient combating of crime'

NDITA, J