S v MATHE 2017 (2) SACR 63 (GJ)
Trial — Assessors — Absence of — Magistrate dispensing with assessors for lack of resources — Irregularity as envisaged by s 324 of Criminal Procedure Act 51 of 1977.
In a matter where the appellant had been convicted of murder in a regional magistrates’ court and sentenced to 20 years’ imprisonment, it appeared on appeal that the magistrate had decided, without any enquiry into whether the appellant required an assessor, that no assessor would be appointed ‘for lack of resources’.
Held, that the failure of the presiding officer to invoke the provisions of s 93ter of the Magistrates’ Courts Act 32 of 1944 was an irregularity as envisaged by the provisions of s 324 of the Criminal Procedure Act 51 of 1977. The conviction and sentence accordingly had to be set aside and the state was authorised to institute proceedings de novo