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Bohope and Others v S (Appeal) (CA41/2023) [2025] ZANWHC 163 (29 August 2025)

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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH-WEST DIVISION, MAHIKENG)

 

CASE NO.: CA 41/2023


Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO


IN THE APPEAL OF:

 

SIMON BOHOPE

1ST APPELLANT

KHOLEKILE MAFILIKA

2ND APPELLANT

CHARLES KENOSI  

3RD APPELLANT

MZIKAISE MFISHANE

4TH APPELLANT

THYEKILE ZITHA

5TH APPELLANT

WILLIAM MOGOROSI 

6TH APPELLANT

and

 


THE STATE

RESPONDENT


DATE OF APPEAL                                                                               18 JUNE 2024

DATE OF JUDGMENT                                                                         29 AUGUST 2025

 

ORDER

 

The following order is hereby made:

 

(i)               the appeal against conviction is upheld;

(ii)             the conviction and resultant sentence are accordingly set aside; and

(iii)            the Appellants are to be released from custody with immediate effect, insofar as this matter is concerned, unless detained in respect of another matter.

 

JUDGMENT

 

CORAM: LAUBSCHER AJ et MORRIS AJ:

 

THE APPEAL AND THE RELEVANT BACKGROUND

 

1.               This appeal pivots around a single and crisp issue being the interpretation and application of the provisions of section 93ter(1) of the Magistrates’ Courts Act, Act 32 of 1944 (hereafter “the Magistrates’ Court Act”).

 

2.               The First to the Fifth Appellants before this court of appeal were in the same order as they were before the North-West Province’s Regional Court Division, held at Stilfontein, Klerksdorp (hereafter “the court a quo”) where they stood accused of murder.  The Sixth Appellant before this court of appeal was the seventh accused person before the court a quo.

 

3.               The Appellants were charged with a count of murder, read with section 51(1) of the Criminal Law Amendment Act, Act 105 of 1997 in that Appellants on or about 25 February 2017, at or near Jouberton in the Regional Division of the North West, unlawfully and intentionally and with a common purpose, killed one Mohele Motimi, an adult male person.

 

4.               The Appellants pleaded not guilty to the above stated charge, and the matter proceeded to trial.  The trial court in its written judgment found the Appellants guilty of the murder of Mohele Motimi and inter alia stated the following in the court a quo’s written judgment:

 

“[165]            The court therefore finds that accused 1 to 7 were part of a group attacking the deceased on the morning of the incident.  The reason for the vicious attack on the deceased was because the deceased was a member of the CPF, who patrolled in Extension 19 and 20, Jouberton, in order to do crime prevention.  As stated by Bennett during his evidence in court, on enquiring from the accused why they wanted to kill him, the notion was made that the CPF members were disturbing them in patrolling the area and as such they could not do what they wanted.”

 

“[166]            The deceased was brutally attacked and stabbed to death while lying defenceless on the ground.  The post mortem report, exhibit “B” corroborates the severity of the injuries sustained.  The report made mentioned of multiple chop wounds on the scalp, neck and chest.  These facts prove that the accused had the direct intention to murder the deceased.”

 

5.               In dealing expressly with the doctrine of “common purpose” the court a quo’s written judgment proceeds to state:

 

“[169]         The accused can be convicted of murder on the basis of the doctrine, if,

 

1.               they were present where the violence was being committed,

2.               they were aware of the assault on the deceased, Mohele Motimi,

3.               they intended to make common cause with the perpetrators of the assault,

4.               they manifested their sharing of a common purpose with the perpetrators of the assault by themselves performing some act of association with the conduct of the perpetrators, and lastly,

5.               they had the requisite “mens rea” concerning the unlawful outcome at the time the offence was committed, i.e. they intended the criminal result or foresaw the possibility of the criminal result ensuing and nevertheless actively associated themselves reckless as to whether the result will ensue.”

 

“[170]         When evaluating the evidence holistically the court finds that the accused persons did act in concert and with “common purpose” to murder the deceased, the following facts clearly indicate the existence of a “common purpose”,

 

1.               Accused 1,3 and 6 approached Bennett on the morning of the incident and threatened to kill him.

2.               The reason for the animosity between the CPF and the gangs, of which the prevention patrols in the Jouberton area, which did not sit well with the gang members.

3.               Accused 1 to 7 were in each other’s company on the morning of the incident, and they were looking for members of the CPF.

4.               When the groups met, the GPF members were pelted with stones and chased by the accused and others,

5.               The accused were armed with pangas and knives, and they, as part of a bigger group chase after the CPF members of which the deceased was part of.

6.               Accused 1 was the first to caught up with the deceased and a fight started.  Accused 3 and 6 joined in and they all stabbed the deceased.  During the commotion the deceased retreated inside a yard, where he fell to the ground, and all the accused joined in and stabbed the deceased while lying on the ground.

7.               After the deceased was stabbed, they all left together.

8.               Accused 2 returned and hit the deceased on the head with a baton and he stabbed the deceased in the neck.  While this was happening accused 4 was with accused 2.  They both left the scene together.”

 

“[171]         The court find that accused 1 to 7 participate in the execution of the offence of murder and each of the accused associated himself with the acts perpetrated by the others.  Accused 1 to 7 acted in concert with the common purpose to attack and kill the deceased on the morning in question; and they had the intention to murder the deceased.”

 

6.               The court a quo on 14 March 2022 sentenced each of the Appellants to 15 years imprisonment and subsequently granted leave to appeal their conviction on 19 September 2022.

 

THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS AND THE RESPONDENT

 

7.               The Appellants are represented before this court of appeal by Mr R K Thuwe, and the Respondent is represented by Adv D W Ntsala.

 

8.               Both the Applicants and the Respondent delivered written heads of argument, and this appeal is adjudicated in terms of section 19(a) of the Superior Court Act, Act 10 of 2013, by agreement between the parties, on the documents filed in the court file and without the presentation of oral argument.

 

9.               The submission made on behalf of the respective parties in their written heads of argument can be summarised as follows:

 

9.1                  On behalf of the Appellants the following submissions were made:

 

9.1.1              The only ground of appeal raised on behalf of the Appellants is “…based on the court to appoint assessors in terms of the section 93ter (1) of the Magistrate’s Courts Act 32 of 1944 and thus rendered the trial unfair.”

 

9.1.2              The Appellants referred to and rely on the principles as expressed in the matter of Director of Public Prosecutions, KwaZulu-Natal v Pillay [2023] 3 All SA 613 (SCA).

 

9.1.3              The Appellants submit that in this matter “…the presiding officer never establish with the appellants though they were legally represented, whether they understood the provisions of section 93ter (1) and that indeed they waived their rights to proceed with assessors, as it appears from the record it was only the legal representative of the appellants who confirmed to court such a waiver without the appellants confirming same.  Meaning the issue of assessors was not canvassed directly with the appellants, the record does not show whether the appellants understood.  In a recent Judgment in our division handed down by Petersen ADJP, in the matter of Ivodia Monyapheng v State, conviction was set aside due to the failure of the presiding officer to deal with the issues of assessors with the appellant.”

 

9.1.4              It is submitted on behalf of the Appellants that the trial court was duty bound to ensure that the Appellants fully understood the implication of section 93ter of the Magistrates’ Court Act “…which embraces their right to fair trial and that make an informed decision to waive their rights…” and that the mandatory provisions of the section were not complied with.

 

9.1.5              It was further argued that the improper application of the provisions of section 93ter(1) of the Magistrate Court Act has the consequence of impeding upon the Appellants rights to a fair trial and as such the Appellants’ appeal should be upheld.

 

9.2                  On behalf of the Respondent the following submissions were made:

 

9.2.1              The Respondent elected not to oppose the Appellants’ appeal and submitted that according to the Respondent “…there was indeed an irregularity committed by the trial court and the irregularity vitiated the whole proceedings as the court  a quo was not property constituted.”

 

9.2.2              The Respondent also referred to the matter of Director of Public Prosecutions, KwaZulu-Natal v Pillay, supra, and submitted that compliance with section 93ter(1) of the Magistrates’ Court Act is a fact-based enquiry.

 

9.2.3              The court a quo was obliged to duly comply with the provisions of section 93ter(1) before evidence is led.  The Respondent further referred to the matter of Hlatshwayo and Another v S [2022] ZAKPHC 8 (28 March 2022) wherein the court, according to the Respondent, found that the record did not disclose that the provisions of section 93ter(1) of the Magistrates Court Act were explained and found that the trial court was not properly constituted, and the court consequently set aside the conviction and sentence.

 

9.2.4              The Respondent further submitted that “…there is no indication on record that the appellants was aware of their rights to have assessors sitting with the Regional Magistrate in the trial…” and that the trial court “…failed to establish whether the appellants were aware and appraised of their rights in terms of section 93ter of the MCA….”.  Accordingly, the Respondent submits that the Appellants’ appeal must be upheld.

 

THE CONTENTS OF THE RECORD WITH REGARD TO SECTION 93ter(1) OF THE MAGISTRATES’ COURT ACT

 

10.            The record reflects appearance by the Appellants before the court a quo on the following dates: 5 July 2018 (without the “first accused”) and 6 July (only for the “first accused”), 27 July 2018 (all accused persons before the court), 20 August 2018 (only “first accused” before the court), 27 August 2018 (all accused persons before the court) and 11 September 2018 (all accused persons before the court).

 

11.            On 19 September 2018 all the Appellants save for the First Appellant (the “first accused”) again appeared before the court a quo.  The re-typed record of the events which have transpired before the court a quo at this appearance reflects the following:

 

“Accused 1 absent.

Accused 2 – 7 before Court

PP:  Accused 1 is appearing in another matter in Regional Court 4 today.

All parties ready to proceed with trial

Rem 27/2/2019 Trial.

All informed Court no assessors are needed.

Case also placed – 28/02/2019”

(this court’s emphasis)

 

12.            On 20 September 2018 the First Appellant (the “first accused”) appeared before the court a quo – ostensibly because he did not appear before the court on 19 September 2018 with the other Appellants.  The re-typed record of the events which have transpired before the court a quo at this appearance reflects the following:

 

“Accused 1 before Court.

Rem 27/2/2019 Trial.

Accused 1 in custody

(Also placed on roll 28/2/2019)”

 

13.            The Appellants proceeded to again appear before the court a quo on 27 February 2019, 5 August 2019 and 24 October 2019.

 

14.            On 11 November 2019 the Appellants appeared before the court a quo and entered their respective pleas.  On this occasion the court a quo raised the issues of “assessors” with the legal representatives of the Appellants in the following manner:

 

“PROSECUTOR: Thank you Your Worship.  Yes, on the Court’s question it is murder Section 51 subsection 1 of the Criminal Law Amendment Act 105/1997 as amended is applicable Your Worship.

COURT:                  Mr Roman did you indicate the power to proceed without assessors previously?

MR ROMAN:          Without assessors.

COURT:                  Mr Hatting

MR HATTING:       Confirm Your Worship.

COURT:                  Mr Minty

MR MINTY:            [Indistinct].

COURT:                  According to the Prosecutor the charges against you is one of murder read with Section 51(1) of the Criminal Law Amendment Act the Minimum Sentences Act 105/1997.  This entails if you are found guilty on these charges of murder the Court would be obliged to sentence you to life imprisonment.  The Court can only deviate from the prescribed minimum sentence of life imprisonment if compelling and substantial circumstances are placed before this Court.  Do you understand the information?

INTERPRETER:   We all understand the information?

COURT:                  Thank You.  You may proceed Mr Kok.”

(this court’s emphasis)

 

15.            Mr Roman appeared on behalf of the First Appellant, the Fourth Appellant and the Sixth Appellant (who was the “seventh accused” before the court a quo).  Mr Minty appeared on behalf of the Second Appellant and the Third Appellant and Mr Hattingh on behalf of the “sixth accused” person who is not an appellant before this court in this appeal.

 

THE LOCUS CLASSICUS IN RESPECT OF SECTION 93ter(1)

 

16.            The appeal squarely and solely raises the proper interpretation and application of section 93ter(1) of the Magistrates’ Court Act.  This section states that:

 

“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; or

(b)              in considering a community-based punishment in respect of any person who has been convicted of any offence,

summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, 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, whether together with other charges or accused or not, the judicial officer shall at the trial be assisted by 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.” (this court’s emphasis)

 

17.            In adjudicating this appeal, this Court is bound by the judgment of the Supreme Court of Appeal in the matter of Director of Public Prosecutions, KwaZulu-Natal v Pillay, supra, and to which both the legal representatives of the Appellants and the Respondent referred this Court to in their respective heads of argument.

 

18.            The judgement in the Pillay matter was penned by Goosen JA (Dambuza ADP and Mothle and Matojane JJA concurring) in paragraphs 1 to 43 thereof and by Schippers JA in paragraphs 44 to 68 thereof.  Both the judgments penned by Goosen JA and Schippers JA come to the same conclusion, albeit by means of different lines of reasoning.  To this end Schippers JA states in para 44 of the judgment “I have had the benefit of reading the first judgment by my colleague Goosen JA.  I agree that the appeal should be upheld, but I come to that conclusion by a shorter route.  In what follows, I utilise the same abbreviations used in the first judgment.”

 

19.            Briefly stated the facts in the Pillay matter was that on 7 March 2018, the two accused persons before the regional court and the record in respect of this appearance reflects inter alia and in as far as the issue of “assessors” is concerned, the following actions: “Both accused are advised of the use of lay assessors – duly understood.  Mr Luckychand [the legal representative of the accused persons] confirm that no assessors will be required.”  On a later date 18 May 2018 when the trial proceeded the court a quo again dealt with the issue of “assessors” as follows:  “COURT: Okay, just before we proceed, Mr Luckychand, you confirm for the record that no assessors are required in this matter?  MR LUCKYCHAND: That’s correct, Your Worship.”

 

20.            Subsequently one of the accused persons was convicted of murder and sentenced to 10 years imprisonment.  His co-accused was acquitted.  The convicted accused appealed to the High Court where the court ex mero moto raised the issue of compliance with section 93ter(1) of the Magistrates’ Court Act.  The High Court held that the peremptory requirements of section 93ter(1) had not been satisfied, and it set aside the  conviction.  The Director of Public Prosecutions, KwaZulu-Natal appealed this finding to the Supreme Court of Appeal, who upheld the Director of Public Prosecutions’ appeal, finding that the provisions of section 93ter(1) were in fact complied with by the trial court.

 

21.            The two lines of reasoning adopted by the Honourable Justices of the Supreme Court of Appeal are briefly dealt with below and the respective principles applied by the Supreme Court of Appeal stated.

 

22.            In the judgment of Goosen JA:

 

22.1           Certain principles in respect of section 93ter(1) as stated by the Supreme Court of Appeal in the matter of S v Gayiya 2016 (2) SACR 165 (SCA) at para 8 read with para 11 was confirmed, i.e., that:  “The section is peremptory.  It ordains that the judicial officer presiding in a regional 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.”

 

22.2           In referring to the manner in which the Gayiya matter interpreted and applied the provisions of section 93ter(1) the court confirmed that: “The judgment in Gayiya requires only that the magistrate presiding at the trial brings to the attention of an accused person the provisions of s 93ter(1) and establishes whether the accused has made a request to proceed without assessors. In the event that the accused makes such request, the magistrate may exercise a discretion regarding the appointment of assessors.”

 

22.3           According to the court the above referred to principles align with that which were stated by the Supreme Court of Appeal in the matters of Shange v S [2017] ZASCA 51 and in Mtambo v The State [2021] ZASCA 17.

 

22.4           However, and since the judgment in S v Gayiya, supra, several other judgments have followed dealing with the interpretation and application of section 93ter(1) and the Supreme Court of Appeal proceeded to refer to them, being: (i) S v Langalitshoni 2020 (2) SACR 65 (ECM), (ii) Nxumalo v S [2022] ZAKZDHC 23 (10 February 2022) (Lopes and Ploos Van Amstel JJ) and (iii) Hlatshwayo and Another v State [2022] ZAKPHC 8 (28 March 2022) (Bezuidenhout AJ and Ploos van Amstel J). 

 

22.5           The aforementioned judgments in the view of the Supreme Court of Appeal incorrectly expanded the interpretation and application of section 93ter(1) beyond what is contained in the said section by inter alia requiring that: (i)  “…the presiding officer is obliged to address an accused person directly, and to explain the ambit and effect of s 93ter(1) to an accused person without reference to their legal representative...” and (ii) construing section 93ter(1) as conferring upon an accused person a right to be tried by a ‘fully’ or ‘properly’ constituted court, namely a court including assessors and that the election not to do so amounts to a “waiver of the right”, which can only occur if the accused is fully cognisant of their rights.

 

22.6           As stated below, the Judgment of Schippers JA made the following strong worded remarks regarding these judgments in paras 61 and 67: “…the interpretation of the proviso in Langalitshoni and Nxumalo produces a manifest absurdity…” and “…the decisions in Langalitshoni, Nxumalo and Hlatshwayo are incorrect and should not be followed.”

 

22.7           In the same vein Goosen JA at para 38 states: “Although we are not here dealing with a fair trial enquiry, compliance with s 93ter(1) of the MCA is no less a fact-based enquiry.  In light of this, it is equally undesirable to lay down a general rule regarding what must be done to establish compliance with the section.  The set of guidelines proffered in Langalitshoni, strays into this terrain. The requirements are at odds with the notion of a right to legal representation. They are also premised upon a misconception of the nature of the right conferred by s 93ter(1) and the application of principles of waiver.”

 

22.8           More acceptable to the Supreme Court of Appeal was the approach adopted in the matter of Green v State [2022] ZAKPHC (29 July 2022) (Dumisa AJ and Olsen J) and the court states that this matter “marked a departure from the approach adopted in the earlier judgments” and it professed a correct approach to the interpretation and application of the subject section.  The court in the Green matter held that there was no reason to doubt the competence of the legal representative and that the court was entitled to assume that the accused had made his election with the benefit of advice.

 

22.9           Goosen JA then proceeds to state, in respect of a scenario where the accused person is represented by a legal representative, that: “What s 93ter(1) requires is that an accused person must be informed of the section’s mandatory provisions and that he may request that the trial proceed without assessors. Gayiya does not hold that the magistrate is obliged to only address the accused directly, or to explain the nature of the rights conferred by the section.”

 

22.10         The Supreme Court of Appeal found on the facts in the matter before it that “…the notes made by the magistrate presiding at the pre-trial remand hearing [during March 2018] state that the provisions of the section were explained to the accused and understood by him.  This was also confirmed by the legal representative of the accused.  They were understood.  The legal representative said that the two accused did not require assessors.  This was plainly a request that the trial proceeds without assessors. The accused confirmed this to be so.  Thus, when the trial magistrate asked the legal representative whether that was still the case, he sought to confirm the request...”, as such it was found that on the facts, section 93ter(1) was complied with and the “…high court ignored the facts as disclosed on the record. In the circumstances, the high court erred both in respect of the law relating to the section and in its application to the facts. It follows that the appeal must succeed.”  (this court’s emphasis)

 

23.            In the judgment of Schippers JA:

 

23.1           The court states that the issue raised in the appeal before it is one of statutory interpretation (of section 93ter(1)) and the Supreme Court of Appeal proceeds to state that it is trite that statutory interpretation is a “…unitary exercise which requires a court to determine the meaning of a provision, having regard to the language used, the context in which it is used and the purpose of the provision.”  In this regard the court refers to the well-known authority dealing with the interpretation of a statute, i.e. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

 

23.2           According to the court, section 93ter(1) on its plain language, states that a regional court magistrate must be assisted by two assessors where an accused is charged with murder, unless the accused requests that the trial proceed without assessors and these requirements are peremptory.  Thus prior to the commencement of the trial, the regional magistrate must inform the accused of the proviso – an “…uncomplicated obligation…”.

 

23.3           Having regard to the judgments in the matters of S v Langalitshoni, Nxumalo v S and Hlatshwayo and Another v State, Schippers JA states that section 93ter(1) “…says nothing about the ‘waiver’ of a right that the judicial officer be assisted by two assessors.  Instead, it refers to a ‘request’ by an accused that the trial proceed with or without assessors…” and “…thus, on its plain wording, the proviso prescribes the constitution of a regional court in which an accused is charged with murder, unless the accused formally asks that the trial proceed without assessors.  Put differently, the request is a statement of the accused’s desire that no assessors are required. And it makes no difference whether that request is conveyed to the magistrate by the accused himself, or by his legal representative. This construction is consistent with the purpose of the proviso: to promote lay participation in the adjudication of criminal cases in order to achieve a measure of community involvement in the criminal justice system, unless the accused requests otherwise.”

 

23.4           The court went on to state that: “Sensibly interpreted however, as long as it appears from the record of the proceedings that an accused has been informed of the proviso – by the magistrate or the accused’s legal representative – and that there is a formal request that the trial proceed without assessors, there will be compliance with the proviso.  Whether there has been such compliance is a question of fact to be determined in light of the circumstances of the particular case.” (this court’s emphasis)

 

23.5           The court found that the wording of the proviso is clear and unambiguous concerning the composition of the court, and the accused’s entitlement to formally ask that the trial proceed with or without assessors and that the interpretation afforded to the section 93ter(1) in the matters of Langalitshoni and Nxumalo “…produces a manifest absurdity…” and that it is a settled principle that statutes should be construed to avoid absurdities or anomalous results.  Later in the judgment Schippers JA confirms that “…the decisions in Langalitshoni, Nxumalo and Hlatshwayo are incorrect and should not be followed.”

 

23.6           The Supreme Court of Appeal in para 57 confirmed the principle that: “Whether there has been such compliance is a question of fact to be determined in light of the circumstances of the particular case.”

 

23.7           In applying the “sensible interpretation” of the subject section to the facts before the court, Schippers JA at paras 64 and 65 states: “The record shows that at the pre-trial conference, the respondent and his co-accused were legally represented.  They were advised of the use of lay assessors, obviously sourced in the proviso, which requires the magistrate to be assisted by two assessors. The magistrate could not, and would not, have recorded that they understood that advice, unless it was explained to them.  So, contrary to the high court’s finding, the accused were directly involved in the explanation concerning the proviso.  The magistrate went further. He asked the respondent’s attorney to confirm that no assessors were required – essentially a confirmation of the accused’s request – which the attorney provided.  Thereafter, the record states, ‘both accused confirm the same’, meaning that they, in turn, confirmed the request to their attorney that the trial proceed without assessors. [65] Subsequently, and prior to the commencement of the trial, the presiding magistrate’s request to the respondent’s attorney to again confirm that no assessors were required, was a belt-and-braces approach to the proviso. The attorney provided the requisite confirmation. On these facts, nothing can be clearer than that the magistrate (and it may be accepted, the attorney) explained the proviso to the respondent; that he understood it; and that he requested that the trial proceed without assessors.” (this court’s emphasis)

 

23.8           Accordingly, Schippers JA found that there was compliance with the provisions of section 93ter(1) and that the appeal should be upheld.

 

24.            As such, and in the adjudication of this appeal, the questions which must be posed to the facts in the matter is whether it appears from the record of the proceedings that: (i) the Appellants have been informed of the contents of the provisions by the magistrate or their legal representatives and (ii) whether they, in person or through their legal representatives, made a formal request that the trial proceed without assessors.  The answer to these questions "is a question of fact to be determined in light of the circumstances of the particular case.”

 

JUDGMENTS IN RESPECT OF SECTION 93ter(1) IN THIS DIVISION

 

25.            The interpretation and application of the provisions of section 93ter(1) have recently found consideration in two matters in this Division of the High Court and it follows that this Court must also have regard to the judgments in these two matters.  These judgments are: (i) Monyapheng v S (CA 08/2023) [2024] ZANWHC 65 (16 February 2024) and (ii) Khaka and Another v S 2024 (2) SACR 86 (NWM) (8 March 2024).

 

26.            In both the above referred to matters extensive reference was made, and correctly so, to the judgment in the Pillay matter and the ratio thereof was applied to the facts of the respective matters.  This Court deals with the facts in these two matters below.

 

27.            In the matter of Monyapheng v S, supra:

 

27.1           The only ground of appeal against the conviction of the appellant similarly was the alleged failure by the regional magistrate to comply with the provisions of section 93ter of the Magistrates Court Act.

 

27.2           The written pre-trial record in the appeal reflected the following in respect of the issue of “assessors”:  “Adv. Segopolo: Assessors not required. Minimum sentence of life imprisonment explained to accused. She states that she understands.”

 

27.3           The recorded pre-trial record reflected the following:  “COURT: Mr Sekgopolo, assessors required? MR SEKGOPOLO: We are going to waive our rights for assessors, Your Worship. No need for same.”

 

27.4           At the trial of the matter the following exchange between the court a quo and the accused legal representative took place:

 

“MR SEGOPOLO:        Your Worship, before we proceed further may I quickly   approach the accused?

COURT:                          And just to confirm, I think you indicated previously that we proceed    without assessors. I just want to confirm.

MR SEGOPOLO:          We have never indicated that we are proceeding without    assessors. However, I do not have instructions whatsoever to proceed with assessors. May I confirm with my client?

COURT:                          You see, on 6 November…

MR SEGOPOLO:          Yes.

COURT:                          You confirmed you are ready for trial and you said assessors not required. You confirmed that you consulted, you confirmed you were ready for trial, and you indicated assessors not required.

MR SEGOPOLO:          I now received instructions [intervened]

COURT:                          The witnesses were here and they were warned but we did not proceed in January.

MR SEGOPOLO:          On the strength of what the court has just said to me I approach accused. We may proceed without same.

COURT:                          Thank you.”

 

27.5           The court found that the pre-trial hearing held by the regional magistrate in the matter fell “…shy of substantial compliance with the Regional Court Practice Directives (applicable at the time) which gives effect to the Norms and Standards issued by the Chief Justice. In terms of the Regional Criminal Court Practice Directives, 2017, 5th Revision…”

 

27.6           Petersen ADJP proceeds to find that with reference to the pre-trial record and notes in the Pillay matter (i.e., “The notes made by the magistrate presiding at the pretrial remand hearing state that the provisions of the section were explained to the accused. They were understood. The legal representative said that the two accused did not require assessors. This was plainly a request that the trial proceed without assessors. The accused confirmed this to be so. Thus, when the trial magistrate asked the legal representative whether that was still the case, he sought to confirm the request.”) the actions which transpired in the pre-trial of the matter before him “…is distinguishable from the present matter in that…In the present matter, the only recordal about assessors at the pre-trial conference attributed to Mr Sekgopolo is “Assessors not required.” There was no further engagement on the issue by the Regional Magistrate with Mr Sekgopolo.”

 

27.7           In applying the principles as enunciated in Pillay to the facts of the matter, the Court came to the following conclusion:  “In the present matter, the pre-trial conference of 06 November 2018 falls shy of the obligation placed on the Regional Magistrate as postulated in DPP KZN v Pillay.  The transcribed record and the entry in the charge sheet reflects simply that Mr Sekgopolo waived the rights to assessors.  There was no further enquiry whether the appellant was appraised of her rights in respect of section 93ter by Mr Sekgopolo and that she understood same, so as to instruct Mr Sekgopolo to waive those rights. What transpired on 19 January 2019 does nothing to ameliorate the shortcomings in the pre-trial conference of 6 November 2018.  Instead, what it demonstrates is that Mr Sekgopolo disavowed the recordal of 6 November 2018 and appears not have been given an opportunity to properly advice and receive instructions from the appellant on the issue of section 93ter(1) of 19 January 2019 as is evident from the following: ‘On the strength of what the court has just said to me I approach accused. We may proceed without same.’ ”

 

27.8           Accordingly, the appeal was upheld.

 

28.            In the matter of Khaka and Another v S supra:

 

28.1           The issue of the non-compliance with the provisions of section 93ter(1) of the Magistrates’ Court Act was also raised as a ground of appeal.  This matter also emanated from the Stilfontein Court of the North-West Regional Division.

 

28.2           The record indicated the following exchange between the presiding officer and the legal representative of the accused person: “Ekskuus tog Mev. Mohammed [the legal representative of the accused person] sonder assessore die verhoor?” (translated as “excuse me Ms Mohammed without assessors the trial”) to which Ms Mohammed replied: “…Furthermore Your Worship I confirm that the trial proceed without assessors.”

 

28.3           Hendricks JP referred to the matters of Pillay and Monyapheng and then came to the following finding:

 

[9]               I am of the view that in the present matter the Learned Magistrate did not conduct a fact-based enquiry to establish whether the appellants knew about section 93ter, and whether they would request that the trial court sit without assessors. It was not sufficient for the Regional Magistrate to merely ask the legal representative in the manner that she did: “Ekskuus tog Mev Mohammed sonder assesore die verhoor?”  This is woefully short of what is expected of a Regional Magistrate insofar as section 93ter is concerned.  I am of the view that there was no proper enquiry held to determine whether the appellants were appraised of their rights in terms of section 93ter of the CPA, by the legal representative Ms. Mohammed, and that they understood same, so as to instruct Ms. Mohammed to waive those rights.  The effect of not complying with the dictates of section 93 ter in line with DPP, KZN v Pillay, supra, is that the court was not properly constituted and the conviction and sentence as in Gayiya, Shange and Mntambo cases are to be set aside.  It is totally insufficient to merely ask the legal representative “… without assessors this trial?”

[10]             In the final analysis, I am of the considered view that because of the fatal irregularity committed by the trial court, which vitiates the whole proceedings, the convictions and sentences imposed on both the appellants must be set aside. The appellants applications to be admitted to bail pending appeal was refused on 29 August 2023 and they are currently in custody. Because of the setting aside of their convictions and sentences in respect of all counts, they must forthwith be released from prison.”

 

APPLYING THE RATIO IN THE AUTHORITIES TO THE FACTS IN THIS MATTER

 

29.            This Court has already alluded to the contents of the questions which stand to be addressed in this appeal, i.e., whether it appears from the record of the proceedings that: (i) the Appellants have been informed of the contents of the provisions by the magistrate or their legal representatives and (ii) whether they, in person or through their legal representatives, made a formal request that the trial proceed without assessors.

 

30.            The record in this matter reflects that:

 

30.1           On 19 September 2018 the court a quo merely recorded that “All informed Court no assessors are needed”.

 

30.2           There is again no indication that the Appellants “…have been informed of the contents of the provisions by the magistrate or their legal representatives…” as required by the criteria laid down in the Pillay matter.

 

30.3           In fact, the best indication that the provisions of the section 93ter(1) were not properly dealt with at this juncture is the fact that the same record indicates that “Accused 1 absent.”  This fact clearly indicates that no explanation of the contents of the provision was proffered to, or inputs were solicited or received from the accused persons before the court – otherwise the process would have been halted there and then due to the glaring absence of the first accused in this process.

 

30.4           Once evident on the day that the First Appellant was absent, any appreciation of the proper manner in which the subject section stands to be dealt with would have dictated that the court a quo should refrain from dealing (at that point in time) with the provisions of section 93ter(1).  It did not.

 

30.5           The next day (20 September 2018) the first accused appeared before the court a quo and the record confirms that the issue of assessors was not raised on that day with the accused or his legal representative.

 

30.6           On the second occasion when the issue of the “assessors” was raised, i.e. 11 November 2019, the record confirms that yet again the contents of the provisions of section 93ter(1) were not dealt with by either the presiding officer, nor the legal representatives of the Appellants. 

 

30.7           The presiding officer merely asks the legal representatives of the Appellants “…did you indicate the power to proceed without assessors previously?”.  The legal representatives of the Apellants responded positively and the record confirms that this response was provided without any explanation, referral or reference to the Appellants themselves.  It also follows logic that if Mr Minty’s response (which according to the record was “inaudible”) was negative – such a response would have triggered a different action than the court merely proceeding with the trial.  The record of these actions on 11 November 2019 does not reflect that the contents of the provision was dealt with by either the court or the legal representatives of the Appellants.  The “request” by the Appellants that the matter proceed without assessors (as per the provisions of section 93ter(1) of the Magistrates’ Court Act) were also stated without explanation, referral or reference to the Appellants themselves.

 

31.            In the premise, having taken regard of the fact that the Respondent elected not to oppose this appeal and in fact agrees with the submissions made by the Appellants, as well as the facts of this matter measured against the principles enunciated by the applicable authorities, it is evident to this Court that in this matter the provisions of section 93ter(1) were not duly complied with by the court a quo, which in turn results in the effect as stated in the S v Gayiya supra matter, i.e. that the court was not properly constituted and that the  conviction and sentences of the Appellants had to be set aside.

 

ORDER

 

32.         In the result the following order is made:

 

(i)            the appeal against conviction is upheld;

(ii)          the conviction and resultant sentence are accordingly set aside; and

(iii)         the Appellants are to be released from custody with immediate effect, insofar as this matter is concerned, unless detained in respect of another matter.

 

 

N G LAUBSCHER

ACTING JUDGE OF THE HIGH COURT

NORTH-WEST DIVISION, MAHIKENG

 

I agree

 

B MORRIS

ACTING JUDGE OF THE HIGH COURT

NORTH-WEST DIVISION, MAHIKENG

 

 

DATE OF APPEAL:            18 JUNE 2024

DATE OF JUDGMENT:     29 AUGUST 2025

 

For the Appellant:             Mr R K Thuwe

             

For the Respondent:         Adv D W Ntsala