S v MOYO 2018 (1) SACR 658 (GJ)
Trial — Assessors — Failure to appoint in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Explanation that assessors not appointed due to ‘lack of resources’ — Court’s concern at this brought to attention of Minister of Justice.
Review — In what cases — Leave to appeal against conviction in regional magistrates’ court refused, but granted in respect of sentence — Discovery at hearing of appeal that no assessors appointed in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Fatal irregularity that could be corrected on review — Court accordingly setting aside proceedings.
The appellant was convicted in a regional magistrates’ court of murder and intimidation and was sentenced to 23 years’ imprisonment. He was refused leave to appeal, but on petition to the Judge President he was granted leave to appeal against his sentence. When the matter was heard, counsel for the appellant contended that, in respect of the count of murder, the court a quo was not properly constituted in terms of s 93ter(1) of the Magistrates’ Courts Act 32 of 1944. This was because the regional magistrate had not informed the appellant before the commencement of the trial that it was a requirement of the law that he had to be assisted by two assessors, unless the accused requested that the trial proceed without assessors. It was contended that this amounted to a failure of justice and the conviction and sentence had to be set aside. Seeing as the matter had come before the court on appeal only against sentence, the court had to decide whether it could determine the appeal against the conviction where leave had not been granted beforehand.
Held, that the fact that the appellant in the present matter had noted an appeal should not preclude him from being able to approach the court to review the proceedings, and accordingly review proceedings were available, despite leave to appeal against the conviction having been refused. (See .)
The court accordingly made an order setting aside the proceedings in the regional magistrates’ court as not being in accordance with justice. The court also noted that the regional magistrate had, in explanation, commented on the failure to appoint assessors as being because of a ‘lack of resources’. The court was greatly concerned about this state of affairs and ordered that a copy of the judgment be referred to the Minister of Justice.