Director of Public Prosecutions, Kwazulu-Natal vs. Pillay

South Africa

23.06.2023

Criminal

In a trial involving a charge of murder, the magistrate shall be assisted by assessors unless the accused requests that the trial may proceed without assessors

In facts of present case, Pillay had been charged with murder before the Regional Court. He was convicted. Pillay appealed to the high court against his conviction. The high court accepted that Section 93ter(1) is peremptory. It held that, the trial magistrate was obliged to explain the provisions of the section to an accused directly and to explain the effect of electing to proceed without assessors. It found that the section had not been explained to Pillay. It therefore found that the trial was not conducted before a properly constituted court and set aside the conviction and sentence.

Section 93ter(1) of Magistrates’ Court Act, 1944 (the MCA) provides that in a trial involving a charge of murder, the magistrate shall be assisted by assessors unless the accused requests that the trial proceed without assessors. Section 93ter(1) confers only a right to request that the trial proceed without assessors. The section does not confer a right to choose or elect the constitution of a court. It held that, when an accused person is represented by a legal representative, a magistrate’s duties are carried out with due deference to the fact that the right to legal representation has been exercised. In the context of Section 93ter(1) of the MCA, a magistrate is obliged to ensure that the court is constituted as ordained by the section. The magistrate must establish whether the accused wishes to exercise the right to request that the trial proceed without assessors.

Compliance with the section involves a fact-based enquiry and that it was undesirable to lay down a set of guidelines and requirements by which that enquiry may be satisfied. At an earlier remand hearing, the presiding magistrate had indeed explained Section 93ter(1) of the MCA, in the presence of the legal representative and that the accused had understood it. The legal representative stated that they did not require the appointment of assessors. The accused confirmed this in person. These facts had not been considered by the high court. The provisions of Section 93ter(1) of the MCA had therefore been met and the trial court was properly constituted. Supreme Court upheld the appeal and reinstated the conviction and sentence imposed by the regional court. Since the high court had not dealt with the appeal on the merits, the Supreme Court remitted the appeal to the high court for consideration on its merits.

Tags : Conviction Compliance Provision

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