IN THE HIGH COURT OF SOUTH AFRICA
NATAL PROVINCIAL DIVISION			CASE NO.AR204/07
						REPORTABLE.
In the matter between

SHABEER NAICKER						 Appellant

and

THE STATE							          Respondent

APPEAL JUDGMENT

MSIMANG J.

The appellant in this matter appeared before the Verulam Regional Court charged with the crime of murder.  He pleaded “Not Guilty” to the charge and, after a trial during which he was legally represented, he was convicted as charged and sentenced to serve a term of  eighteen (18) years’ imprisonment.  He is before us on appeal against both the said conviction and sentence,  having been granted leave by the court a quo.

The relevant portion of section 93ter(1)(a) of the Magistrates Court Act provides that :
“(1)	The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice :-

(a)	before any evidence has been led, ….

summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case ….. to sit with him as assessor or assessors : provided that if an accused is standing trial in the court of a regional division on a charge of murder ….. the judicial officer shall at that trial be assisted by the two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may in his discretion summon one or two assessors to assist him.”  (My emphasis)

It is common cause between the State and the defence that, notwithstanding the fact that the appellant was admittedly standing trial on a charge of murder, not only was the subject of assistance with assessors not broached, but that the trial proceeded to final conclusion without such assistance.  It was therefore no wonder that, during appellant’s application for leave to appeal launched in the court a quo, one of the grounds on which that application was based was that the regional magistrate had acted irregularly in that, being obliged to conduct such a trial with assessors unless the appellant specifically indicated that he did not wish to be tried with them, she failed to summon them to her assistance.  The ground was persisted with by Mr Howse who appeared for the appellant before us.  He argued that the proviso to section 93ter(1)(a) is peremptory and unequivocal in its command to a regional magistrate that he or she shall conduct the trial of an accused charged with murder with the assistance of two assessors unless such an accused requests that the trial proceeds without such assessors.  A regional magistrate, he continued to argue, has therefore no discretion in this regard as the requirement of assistance by assessors may only be dispensed with at the specific request of an accused.  Relying on the two decisions, he contended that the trial before the court a quo was fatally flawed in that it was not conducted before a properly constituted court and further that, as such, the proceedings in their entirety were irregular and fall to be set aside.

As I understood Ms Janse van Vuuren, who presented argument for the State, while she conceded that failure by the regional magistrate to appoint the assessors as enjoined by the proviso to section 93ter(1)(a) amounted to an irregularity, she submitted that the irregularity, in the circumstances of the present case, ought not to be regarded as fatal.  She cited the fact that, throughout the trial of the matter in the court a quo, the appellant was represented by a competent attorney who clearly knew and understood the law.  Clearly, the argument goes, the irregularity did not result in an unfair trial and can therefore not be said to have fatally tainted the entire proceedings.  The finding that the irregularity was not one of such a nature that would fatally taint the entire proceedings would then leave the court free to enquire as to whether the irregularity resulted in a failure of justice.  It is only if such an enquiry can elicit an affirmative response that the proceedings may, with legal justification, be set aside, the argument concluded.

There can be no doubt that the provisions of the proviso to section 93ter(1)(a) are couched in peremptory terms and therefore that failure by the court a quo to apply the said provisions in the situation in which the requisite jurisdictional facts were present  amounted to an irregularity.  The issue to be determined by this court is the effect which that irregularity had on the integrity of the proceedings.

In The State v Moodie it was found that a deputy sheriff had remained closeted with a jury throughout their deliberations in violation of a section in the old Criminal Procedure Act.  In terms of section 369(1) of the said Act, an appeal court could allow the appeal if it was of a view that a trial court judgment should be set aside on the ground of a wrong decision of any question of law provided that no conviction or sentence could be set aside or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the court of appeal that failure of justice has, in fact, resulted from such irregularity or defect.  In interpreting the said section Holmes JA held that the following rules apply :-
“(1)	The general rule in regard to irregularities is that the Court will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial Court would inevitably have convicted if there had been no irregularity.

(2)	In an exceptional case, where the irregularity consists of such a gross departure from established rules of procedure that the accused has not been properly tried, this is per se a failure of justice, and it is unnecessary to apply the test of enquiring whether a reasonable trial Court would inevitably have convicted if there had been no irregularity.

(3)	Whether a case falls within (1) or (2) depends upon the nature and degree of the irregularity.”

Applying those rules to the facts before him he reasoned as follows :-

“Now however bona fide and well-intentioned the conduct of the deputy sheriff, in my view he committed a grave irregularity in remaining closeted with the jury throughout their deliberations.  The statute requires that they should be ‘in a private place apart by themselves’.  These words, which convey a triple emphasis, are no mere formality.  It is fundamental to the jury system that the members should have the fullest freedom of private discussion throughout their deliberations.  The presence of an unauthorised officer of the Court for some two hours, in the small and crowded room in this case, strikes at the very root of that essential right of privacy.  It was so gross a departure from established rules of procedure that it can be said that the appellant was not properly tried.  In other words it was an irregularity of such a nature as to amount per se to a failure of justice.  It is therefore unnecessary to enquire whether, on the evidence, a reasonable jury would inevitably have convicted if the deputy sheriff had not been present.”

In a later decision of the Namibian Supreme Court Mahomed CJ, who was then dealing with constitutional irregularities, articulated the rule thus :-
“It would appear to me that the test proposed by our common law is adequate in relation to both constitutional and non-constitutional errors.  Where the irregularity is so fundamental that it can be said that in effect there was no trial at all, the conviction should be set aside.  Where one is dealing with an irregularity of a less severe nature then, depending on the impact of the irregularity on the verdict, the conviction should either stand or be substituted with an acquittal on the merits .....”

Once it has therefore been established that there has been an irregularity the next issue to be determined is the type of that irregularity with a view to establishing whether the same is so fundamental that it per se amounts to a failure of justice.  In the event of the enquiry eliciting an affirmative response, the court of appeal would then set aside the conviction without reference to the merits of the case.   As it was stated in the Moodie case (supra), an irregularity which per se amounts to a failure of justice falls under an exceptional category and the enquiry is whether:-

“… the nature of the irregularity is so fundamental and serious that the proper administration of justice and the dictates of public policy require it to be regarded as fatal to the proceedings in which it occurred.”11

The central purpose of the criminal justice system is to decide the factual question relating to the guilt or innocence of an accused person.   Unlike the jury system in the Anglo-American world, the system of trial by assessors in the lower Courts in South Africa has not been:-
“.. in existence …in several centuries and carried impressive        credentials traced by many to Magna Carta.”12
Even when it was introduced into the statute book during 1954,13   the utilisation thereof was subject to the approval of the Minister of Justice with:-
“The practical result … that assessors are hardly ever used in these Courts.”14  
The hindrance to the system was not lost sight of in the report of the Hoexter Commission which recommended  reform expressing itself as follows:-
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11   Shikunga case (supra) at 624H-I.
12   Duncan    v. Louisiana, 391 U.S. 145 (1968) at 151;
13   Section 93  ter  was introduced by Section 3 of the Magistrate’s Courts Amendment Act 14 of 1954;
14  “Assessors and Criminal Justice” by Dirk van Zyl    and Norma-May Isalon      - S.A. Journal on Human Rights – 1985 Vol. 1 218    at 232;

“5.12.1.5   Approval by the Minister of Justice is a prerequisite under Section 93 ter of the Magistrates’ Courts Act, 1944, for the appointment of an assessor/assessors in criminal trials in lower courts.   Obtaining such approval is a time-consuming process.   Regional magistrates are experienced judicial officers.   They are vested with considerable criminal jurisdiction and in the Commissioner’s view the abovementioned prerequisite is unduly restrictive and the Commissioner therefore recommends that the prerequisite that the Minister of justice approve the appointment of an assessor or assessors be done away with.”15  

When during 1991 reform ultimately eventuated, it was no longer necessary to seek  ministerial approval, but it was now compulsory, in cases where the accused is being tried for the crime of murder, for a Regional Magistrate to summon to his or her assistance two assessors unless such an accused requests that the trial should proceed without assessors whereupon, in his discretion, the Regional Magistrate may summon assessors to assist him.   But then those assessors need not have any experience in the administration of justice.   They will only qualify if, in the opinion of a Regional Magistrate, they may be of assistance at the trial of the case or in the determination of a proper sentence.   This amendment opened the way to lay assessors belonging to other racial 
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15   Commission of Enquiry into the Structure and Functions of the Courts.   Chairman – Mr. Justice G.G. Hoexter Fifth and Final Report: Part A:   5.12.1.5 pp. 360-361

groups to participate in the administration of criminal justice which hitherto had been perceived to be a preserve of predominantly white judicial officers.   It is no wonder that, after having taken note of the amendment, an author of the time remarked as follows:-
“kritiek wat heel dikwels teen die regstelsel in Suid-Afrika uitgespreek word, as sou dit deur die blanke lede van die gemeenskap oorheers word, … behoort in die groot mate deur hierdie wetgewing ondervang te word..”16

By removing the requirement that the assessors should have experience in the administration of justice , it is evident that those assessors would not have been of real assistance to the Court in reaching a decision in factual issues relating to the guilt or innocence of an accused person.17    Hurt, J. in the Gambushe case (supra) remarks as follows regarding the purpose for which the provisions were enacted:-
“As I understand the object of these provisions, it was to bridge what was conceived to be the cultural gap between Magistrates, on the one hand, and the large number of intellectually unsophisticated and uneducated accused persons who come to trial before them, on the other.   What was contemplated was that the presence of the assessors would make the trial of the accused more of a ‘trial by peers’ and constitute some protection against the conduct or reactions of the witnesses and the accused being judged by incorrect yardsticks not applicable to those of the environment and community to which those witnesses and the accused belong ….”18

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16	Assessore in die Laerhof by M.M. Watney -  Tydskrif vir Hedendaagse Romeins-Hollandse Reg, Vol. 55 1992 at p.468.  
17	S. v. Gambushe, 1997 (1) S.A.C.R. 638(H) at 643h;
18     Ibid at 643f-h;

It is true that the requirement that a Regional Magistrate should be assisted by two assessors where an accused is standing trial on a charge of murder, is a peremptory one.   However, for purposes of an enquiry as to whether failure to comply with such a requirement amounts to a fundamental irregularity, the Court is clearly not precluded from investigating the policy behind the enactment of such a procedural requirement with a view to establishing as to whether the transgression thereof would, in all cases, amount to a violation of such a policy.   The Court did so in the Moodie case (supra)18 and in Mkhise’s case (supra).    In the latter case, before undertaking such an investigation, Kumleben, A.J.A. expressed himself as follows:-

“In order to decide this question it then appears it is necessary to examine the statutory requirements for the admission of an advocate to practise, the underlying reasons for such provisions and the role an advocate is called upon to fulfil in the administration of justice.”19
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18          at 759A-I;
19         Mkhise’s case (supra) at 872G-H.

It was only after having undertaken that investigation that he concluded that it was in the public interest that the defence in a criminal trial be undertaken by a person who has been admitted to practise as an advocate in terms of the Act and that the lack of such authorisation must be regarded as “so fundamental an irregularity as to nullify the entire trial proceedings.” 20 

Turning to the American jurisprudence on the issue, the American Courts have acknowledged that not all errors of constitutional dimension necessarily require reversal of criminal convictions.   Only where it can be said that such a constitutional error materially contributed to the conviction can such a conviction be overturned.   Put otherwise, an Appeal Court should not set aside an otherwise valid conviction should a Court find that a constitutional error in question was harmless.   This is referred to as “the  harmless-error doctrine” and does not apply to constitutional errors which constitute an exception to the rule, namely, those errors which relate to constitutional rights so basic to a fair trial that their infraction can never be treated as a harmless error.21   In one decision of the American Supreme Court the matter was aptly put as follows:-                    
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20	Ibid at 875F-G;
21	Chapman v. California 386 U.S. 18 (1967).

“….. certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial”. 22 

The transgression of any of those rights “aborts  the basic trial process and renders a trial fundamentally unfair”.23        

Having regard to the purpose and history of the system of trial by assessors in the Lower Courts as briefly stated above, it is my considered opinion that, despite the peremptory manner whereby the proviso to 93 ter (1)(a) has been couched, failure to comply therewith is not so serious and fundamental as per se to vitiate the proceedings.   To borrow from the American nomenclature, such an irregularity may be subjected to a harmless error analysis.

The next issue to be determined is whether, in spite of the fact that the irregularity which  occurred during   the proceedings in the Court a quo is not so serious and fundamental as to per se lead to the failure of justice, it can be  said that there is a reasonable possibility that the irregularity affected the outcome of the trial in the Court a quo.   
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22	  Rose v. Clark, 478 U.S. 570 (1986) at 578;
23	   Ibid at 577 and 578;
24	   Cox v. Clare, 478 U.S. 570 (1986 at 578;

Put otherwise, this enquiry is designed to establish as to whether a reasonable trial Court, properly directing itself,  would inevitably have convicted, in spite of the irregularity.   In that enquiry an Appeal Court sets out:-
“to separate the bad from the good, and to consider the merits of the case including any findings as to the credibility of witnesses …”25

It is common cause between the parties that during the proceedings in the Court a quo the judicial officer and the accused belonged to the same racial group.   It therefore follows that the cultural gap  which, according to Hurt. J., was the reason behind the enactment of the provisions of Section 93 ter, did not exist.   The irregularity could therefore not have prejudiced the appellant during the trial and I must accordingly find that it did not lead to a failure of justice. 

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25	Naidoo case (supra) at 354F.

I have perused and considered the decisions upon which Mr. Howse relied for his submission that the irregularity is such that per se there was a failure of justice and noted that in none of them was an attempt made to establish the object and purpose for the enactment of the relevant provisions of Section 93 ter.   All what these decisions appear to have done was to take note of the fact that those provisions are couched in peremptory terms and concluded that failure to comply therewith amounted to such a fundamental irregularity  as to per se vitiate the entire proceedings.   The same applies to an unreported decision of this Division which was referred to me by Mr. Howse on 30th July, 2007, to whom I am indebted for the same. 26            On this issue it would suffice  to refer to the following passage taken from a decision of the Supreme Court of Appeal:-

“Legislative debates as to whether the enactment is peremptory (imperative, absolute, mandatory, a categorical imperative) or merely directory;  whether ‘shall’ should read as ‘may’; ….. etc. may be interesting, but seldom essential to the outcome of a real case before the Courts.   They tell us what the outcome of the Court’s interpretation of the particular enactment is;  they cannot tell us how to interpret …..” 27 

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26   Shaun Samigan v. The State:  A.R. 685/2003:   Judgment of Patel, J. concurred to by Pammenter, A.J.
27   per Olivier, J.A. in Weenen Transitional Local Council v. Van Dyk, 2002 (4) J.A. 653 (S.C.A.) at 659C-E;

Returning to the evidence which was adduced during the trial of the matter in the Court a quo, in the Notice of Appeal filed on behalf of the appellant it is submitted, inter alia, that a reasonable probability exists that the appellant was acting in self-defence and that, as there were considerable differences between the versions given by the various State witnesses, the Court a quo ought to have found that those State witnesses who incriminated the appellant could not be believed beyond a reasonable doubt.   Both these arguments were advanced by Appellant’s Attorney in the Court a quo and the Regional Magistrate dealt with them in  her judgment finding that the State had proved beyond a reasonable doubt that the appellant had not acted in self-defence and that, in spite of the contradictions in the evidence of the witnesses for the State, it was evident that each one of them tried to the best of his ability to give an accurate and truthful account of the sequence of the events as he observed them. The Regional Magistrate also considered and addressed the version given by the appellant and concluded that the same was a total fabrication.   It is trite law that:-

“Where there has been no misdirection of fact by the trial Judge, the presumption is that his conclusion is correct;  the Appellate Court will only reverse it where it is convinced it is wrong.”28 
No such misdirection was demonstrated to us and we are not convinced that the Regional Magistrate was wrong in her analysis and findings of fact.     The circumstances surrounding the stabbing of the deceased by the appellant reveal that the incident occurred after there had been an intake of alcoholic drinks by all concerned, when the appellant must have been provoked, both by the sudden loss of his cellphone as well as by deceased’s refusal to be  searched which, no doubt, resulted in the altercation between him and the accused.   The crime of murder consists, inter alia, in an intention to kill which:-
“… covers not only a striving to achieve the actual death of the deceased but knowledge that the act being done is so dangerous as to be likely to cause death.29

In view of the circumstances surrounding the incident which have been briefly set out above, in my view, this element of the crime was not proved beyond a reasonable doubt.   The Regional magistrate accordingly erred in convicting the appellant of the crime of murder and the appropriate order should have been one of guilty of the crime of culpable homicide.   
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28	R. v. Dhlumayo and Anor., 1948 (2) S.A. 677 (A) at 706;
29	Rex v. Thibani, 1949 (4) S.A. 720 (A) at 729.

The order of the Court a quo regarding conviction is therefore altered to that extent.   Having altered the conviction from one of murder to one of culpable homicide, it would follow that the Court of Appeal is entitled to consider the sentence afresh.

In the circumstances I accordingly make the following order:-
The conviction of murder and the sentence imposed therefor are hereby set aside and substituted with the following order:-

“The accused is found guilty and convicted of the crime of culpable homicide and sentenced to serve a term of ten (10) years’ imprisonment.”

I agree.

NGUBANE, A.J.

DATE MATTER HEARD:-		   16th July, 2007.
DATE MATTER HANDED DOWN:-   16th August, 2007.
For the Appellant:-				MR. J.E. HOWSE.
Instructed by:-			Rajesh Hiralall Attorneys,
						1 Kiltford Place,
						Sunford,
						Phoenix.

For the Respondent:-			MISS JANSE VAN VUUREN.
	
Instructed by:-			The Director of Public Prosecutions,
					PIETERMARITZBURG.