S v GAYIYA 2016 (2) SACR 165 (SCA)
Trial — Assessors — Appointment of — For purposes of trial — Murder trial in regional court — Appointment of assessors peremptory unless accused requests before commencement of trial that trial proceed without assessors — If request made, judicial officer having discretion to summon assessors or proceed without them — Where accused only informed of right to assessors after guilty verdict and he then indicates that he does not require assessors, defect not cured thereby — Magistrates’ Courts Act 32 of 1944, s 93ter(1).
Section 93ter(1) of the Magistrates’ Courts Act 32 of 1944 is peremptory.It ordains that the judicial officer presiding in a regional magistrates’ court before which an accused is charged with murder (as in this case) shall be assisted by two assessors at the trial, unless the accused requests that the trial proceed without assessors. It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor. The starting point, therefore, is for the regional magistrate to inform the accused, before the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.
Where, as in the present matter, an accused is charged with murder (together with other charges) in a regional magistrates’ court, the quorum prescribed by the proviso to ss (1) of s 93ter of the Magistrates’ Courts Act is three members, namely the regional magistrate and two assessors, unless the accused has requested that the trial proceed without assessors, in which event in his discretion the regional magistrate can, sitting alone, have constituted a quorum. Where no such request is made by the accused, but, when informed of his right to assessors only after the guilty verdicts the accused then indicates that he does not require assessors and that he would only do so at the sentencing stage, that would not cure the deficiency. That defect cannot be waived by the accused at such a time.