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No 120/88
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION) In the matter between
MZWANDILE GQEBA First
Appellant
WHANTO SILINGA (passed away 10/12/87) Second
Appellant
LUNDI WANA Third Appellant
THEMBINKOSI
PRESSFEET Fourth Appellant
MZWANDILE MNINZI Fifth
Appellant
MONDE TINGWE Sixth Appellant
THOZAMILE
BACELA Seventh Appellant
and
THE
STATE . Respondent
CORAM: E M GROSSKOPF, STEYN, JJA et F H
GROSSKOPF AJA HEARD: 16 May 1989 DELIVERED: 24 May 1989
JUDGMENT
2
E M GROSSKOPF, JA
Fourteen accused were charged with
murder before KROON J and two assessors in the Eastern Cape Division. After a
protracted trial,
in the course of which one of the assessors was discharged,
the remaining members of the court gave judgment. In the result some
of the
accused were acquitted, some were convicted of murder, and some were convicted
of assault with intent to do grievous bodily
harm. Seven accused who had been
convicted of murder applied to the trial judge for leave to appeal. Six of these
accused had been
sentenced to death after no extenuating circumstances had been
found. The seventh was younger than eighteen years old when the offence
was
committed. The trial judge, in the exercise of his discretion, sentenced this
accused to twenty years' imprisonment. Leave was
granted to the applicants to
appeal to this court against conviction, sentence, or both. One of them has
since died, and there are
consequently six appellants before us.
In addition to the above-mentioned application for
3
leave to appeal, the applicants applied to the trial judge in
terms of section 317 of the Criminal Procedure Act, no 51 of 1977,for
the making
of a special entry of an alleged irregularity. This application stemmed from the
discharge of one of the assessors, to
which I referred above. The trial judge
granted the application.
The appeal on the merits as well as on the special
entry was called on 16 May 1989. Mr. Soggot, who appeared with Mr. Luitingh and
Mr. Naidu for the appellants, applied in limine for a postponement of the
appeal on the merits. The application was supported by an affidavit by the
appellants' attorney and was
based on the grounds that the appellants' counsel
had not had sufficient time to master the lengthy record. In the special
circumstances
of this case the application was granted. The appeal on the
special entry was, however, heard on 16 May. The present judgment is
confined to
that appeal.
The special entry, as formulated in the judgment of the
4
trial judge granting the application, reads as follows:
"1. Prior to the commencement of the trial, the presiding Judge was of the opinion that in the event of a conviction and having regard to the circumstances of the case, the sentence of death might be imposed or might have to be imposed.
2. The presiding Judge accordingly, and in terms
of section 145(2) of Act
51/1977 summoned two
assessors to his assistance, namely Messrs
D De V van Rensburg and R P Barnes.
3. The trial commenced with the presiding Judge being assisted by the said two assessors. 4. During the trial and while the trial-within-a-trial concerning the admissibility of certain extra-judicial statements made by certain of the accused was in progress, one of the assessors, Mr D de V van Rensburg, requested the presiding Judge that he be discharged. The reasons for such request were those set out earlier in this iudgment. 5. By virtue of those reasons, the presiding Judge, after consultation with and with the concurrence of counsel, both for the defence and for the State, who had been apprised by the presiding Judge of the said reasons, in terms of section 147(1) of the Act, formed the opinion that Mr van Rensburg was unable to act as assessor and discharged him and directed that the trial proceed before the remaining members of the Court. 6. The accused contend that the discharge of the said assessor and the direction referred to in paragraph 5 constituted an irregularity."
5
In paragraph 4 of the special entry it is stated that
the reasons for the assessor's request to be
discharged are set
out earlier in the judgment. This earlier passage reads
as
follows:
"One morning during the course of the trial, and while the trial-within-a-trial was in progress, Mr van Rensburg requested a private consultation with me and advised me as follows: He had an only child, a daughter, who was married to a professional man practising in Aliwal North. During 1986 the daughter's medical advisors had diagnosed that she had contracted cancer in one of her legs. She had undergone certain treatment and it was then thought that the cancer had been contained. That proved not to be the case and the cancer reappeared which necessitated the medical advisors having recourse to the amputation of the leg at the level of the hip. Again it was thought that the
cancer had been contained. This operation, if my
memory serves me correctly, had been performed late in 1986. However, complications subsequently developed and, at the time Mr van Rensburg spoke to me, his daughter had been summoned to Bloemfontein for urgent medical consultations and further treatment. Because of other family exigencies Mr van Rensburg was the only family member for whom it was practical to accompany his daughter to Bloemfontein. That was in any event the wish of his daughter and similarly it was Mr van Rensburg's wish to be at his daughter's bedside while she was in hospital. Mr van Rensburg added that the doctors were uncertain as to the future prognosis in relation to his daughter's condition, but had intimated
6
to him that there was cause for pessimism. I should add that Mr van Rensburg was clearly distraught and I do not think that he would object if I record that he in fact broke down in my chambers. He accordingly requested that I relieve him of his duties as an assessor in the trial to enable him to be with his daughter. On my enquiry, he was unable to venture any estimate of when he would again be available to continue the trial or what the prospects were that he would be so able in the foreseeable future, nor was he in any position to offer any guarantee that at any resumed hearing he would not again find himself in the same situation where he would be obliged to ask for his discharge.
I summoned counsel, both for the defence and for the State, to my chambers and advised them of the substance of my conversation with Mr van Rensburg and that, subject to any submissions they might wish to make, it seemed to me that the circumstances were such that I should invoke the provisions of section 147 of the Act and opine that Mr van Rensburg had become unable to act as assessor and that I should direct that the trial proceed before the remaining members of Court. Counsel, both for the defence and for the State, were unanimous and unhesitatingly of the view that in the circumstances that would be the proper procedure to follow. I ordered accordingly."
For the sake of completeness I should also quote the
contemporaneous passage in the record dealing
with Mr. van
Rensburg's discharge. It reads as follows (Mr. Gyanda and
Mr.
Meiring represented the defence and the State respectively):
7
"COURT: Mr Gyanda, Mr Meiring, I have advised counsel
in chambers of certain developments relating to the
continued ability of one of my assessors to act as an
assessor in this matter, namely Mr van Rensburg. I do
not propose in open court to set out in detail the
developments which have occurred, save to state this,
namely that on compelling personal compassionate
grounds Mr van Rensburg is unable to continue to act
as an assessor during this trial, and that is the
ruling which I make in terms of Section 147 of the
Criminal Procedure Act, and I further direct in terms
of that section that the trial will proceed before the
remaining members of this Court.
MNR MEIRING: Soos die Hof behaag, U Edele.
MR GYANDA: As the Court pleases.
MNR MEIRING: Mag ek miskien net van die Staat se kant
af sê dat ons wens die Geagte Assessor alle sterkte
toe.
MR GYANDA: The same goes from us, M'Lord.
COURT: Thank you. The Court will adjourn to
reconstitute.
COURT ADJOURNS ON RESUMPTION:
COURT: Mr Meiring, Mr Gyanda, I should have mentioned earlier that the rulings which I made are with the concurrence of counsel.
MR GYANDA and MR MEIRING: That is correct. COURT: As they conveyed to me in chambers."
The crisp question for decision is whether Mr. van
Rensburg's discharge, and the continuation of
the trial before
the remaining members of the court, were authorized by
section
8
147(1) of the Criminal Procedure Act. This provision reads as
follows:
"(1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct
(a) that the trial proceed before the remaining member or members of the court; or
(b) that the trial start de novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as assessor."
We have not been referred to any case,
nor have I been able to find one, in which this section has been interpreted in
a respect which
is helpful for present purposes. It is also common cause that
the history of the provision - as to which, see S v. Baleka 1988(4) SA
688 (T) at pp. 691 F to 692 C - offers no guidance. The matter must therefore be
approached on principle.
The expression "becomes unable to act as assessor"
in the sub-section is rendered as "onbekwaam raak om as assessor op te tree" in
the signed Afrikaans text. The word "unable" is defined in the Shorter Oxford
Dictionary as "not able to do something specified;
unequal to the task or need,
incompetent,
9
inefficient." "Onbekwaam" is defined in the Verklarende Handwoordeboek van die Afrikaanse Taal (HAT) by Odendaal and others, as "sonder kundigheid; onbedrewe, ongeskik." And in the context of sec 147(1) the inability must relate to the assessor's functioning as an assessor. To use the Afrikaans term, the section applies where,in the opinion of the trial judge, the assessor is "onbekwaam" to perform his duties as an assessor. It would be difficult to delineate the exact limits of this concept, but fortunately it is not necessary to do so in the present case. In argument it was common cause that inability arising from physical or mental disability would be covered, and Mr. Soggot accepted that emotional stress, if severe and prolonged enough, might render an assessor unable to act as such within the meaning of section 147(1). On the other hand, it seems clear that the mere desire of an assessor to be discharged, however pressing his reasons may be, would not amount to inability to act. The main guestion argued before us was conseguently what exactly the grounds for Mr. van Rensburg's
10
discharge were.
On the face pf it the answer to this
question seems clear. In paragraph 4 of the special entry the learned judge
records that Mr.
van Rensburg requested the presiding judge that he be
discharged. He then adds that "the reasons for such request were those set
out
earlier in this judgment". He continues by stating, in paragraph 5, that "by
virtue of these reasons" he formed the opinion that
Mr. van Rensburg was unable
to act as assessor. The position was, therefore, that the reasons advanced by
Mr. van Rensburg for requesting
his discharge were also the reasons which caused
the learned judge to form the opinion that Mr. van Rensburg was unable to act as
assessor. These reasons were set out in a passage from the judgment which I have
quoted above. I do not propose repeating the whole
passage. The crucial sentence
is: "He accordingly requested that I relieve him of his duties as an assessor in
the trial to enable
him to be with his daughter". By reason of the tragedy which
had occurred in his family, Mr. van Rensburg wanted, for
n
practical and emotional reasons, to be with his daughter. In the circumstances the learned judge, with the concurrence of counsel for both parties, granted his wish. The grounds upon which they acted were aptly described by the learned judge as "compelling personal compassionate grounds". However understandable the attitude of the trial judge was, his ruling was, in my view, not based pn any opinion regarding Mr. van Rensburg's ability or "bekwaamheid" to carry on his duties as assessor. He clearly considered that Mr. van Rensburg's pressing commitment elsewhere constituted an inability to act as assessor. In my view this placed an untenably wide meaning on the word "unable" or "onbekwaam" as used in section 147(1) of the Act.
It has been suggested that there is room to find that the true reason for Mr. van Rensburg's discharge was that, in the opinion of the trial judge, he was unable to perform his duties as an assessor by reason of his emotional state. It goes without saying that his daughter's condition must have caused Mr.
12
van Rensburg great distress, but it does not follow that such distress would have disabled him from attending to his duties. He himself did not indicate this, and the only passage in the judgment which bears on his emotional state is the following sentence: "I should add that Mr. van Rensburg was clearly distraught and I do not think that he would object if I record that he in fact broke down in my chambers". It seems clear, however, that this sentence does not form any part of the reasons given by Mr. van Rensburg for wishing to be relieved from his duties, and accordingly also not of the reasons influencing the trial judge to accede to his reguest. In the context it was merely an observation by the learned judge to emphasize the depth of feeling with which Mr. van Rensburg made the request. Even if it is accepted that at the moment when Mr. van Rensburg was requesting his discharge he might have found it difficult to carry on with the trial, there is nothing to suggest that he could not have composed himself guite soon. And it is significant that in attempting to find out when Mr. van Rensburg
13
would again, in the words of the learned judge, be "available"
to continue the trial, the learned judge was concerned with the probable
course
of the daughter's condition and not with Mr. van Rensburg's emotional
state.
To sum up, it seems clear that the learned judge considered that Mr.
van Rensburg's understandable wish to be with his daughter in
hospital by itself
rendered him unable to act as an assessor. In my view this reflected a
misconception of what is meant by "unable"
or "onbekwaam" as used in sec
147(1).
It follows, in my view, that the learned judge's ruling was not
authorized by the section. After Mr. van Rensburg's discharge the
court was
accordingly not properly composed, and its findingscannot stand. The fact that
the accused consented to the continuation
of the trial before two members of the
court cannot affect this conclusion. See R v. Price 1955(1) SA 219 (A) at
p. 223 D.
The result thus reached may be regarded as unsatisfactory in the
circumstances of the present case but
14
cannot, in my view, be avoided. The correct composition of the court is always a matter of importance, but particularly so in a case like the present where the trial judge summoned two assessors to his assistance in terms of section 145(2) of the Act because he was of the opinion that a sentence of death might be imposed. In the result six death sentences were in fact passed. This is pre-eminently the type of case, in which the legislature intended that the trial judge should be assisted by two assessors. See R v. Mati 1960(1) SA 304 (A) at p. 306 D-F and S v. Malinqa 1987(3) SA 490 (A) at p. 498 D-J. And, although section 147(1) of the Act does permit, even in a case to which section 145(2) applies, that a trial may in certain circumstances continue without one of the assessors, these circumstances should, in my view, not be extended beyond those clearly falling within the language of section 147(1)
The appeal is accordingly allowed, and the convictions and sentences of the appellants set aside.
E M GROSSKOPF, JA F H GROSSKOPF,AJA Concur
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