CHALA AND OTHERS v DIRECTOR OF PUBLIC PROSECUTIONS, KWAZULU-NATAL AND ANOTHER 2015 (2) SACR 283 (KZP)
Trial — Assessors — Appointment of — For purposes of trial — Murder trial — Section 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Failure to invoke provisions of s 93ter constituting fatal irregularity vitiating entire trial.
Trial — Assessors — Appointment of — For purposes of trial — Murder trial — Section 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Magistrate’s duty to explain to accused rights in this regard and to record accused’s response where elects not to have assessors, but magistrate nevertheless still to consider whether such course advisable in circumstances of case.
The failure to properly invoke the provisions of s 93ter of the Magistrates’ Courts Act 32 of 1944 will constitute a fatal irregularity vitiating the entire trial.
It should always appear from the record of proceedings in cases where s 93ter is required to be invoked that a proper explanation is given by the magistrate to the accused, that they have the choice in the appointment of assessors, together with a brief exposition of the import of that choice and as to what was required of them. The record should also reflect, after having given such explanation and requesting a response from the accused, in cases where they elected not to have assessors, that the magistrate nevertheless still considered whether such course was advisable in the particular case before him or her.