Edward Mntambo v The State

The appellant was convicted of murder in the Regional Court, Verulam, KwaZulu-Natal, on 27 September 2012 and sentenced to 15 years’ imprisonment. Leave to appeal was refused by both the Regional Court and the KwaZulu-Natal Division of the High Court. After petitioning the Supreme Court of Appeal, he was granted special leave to appeal against conviction and sentence. During the trial, the regional magistrate sat without assessors despite the charge being one of murder. The appellant was never informed of his right under s 93ter(1) of the Magistrates’ Courts Act 32 of 1944 to have the trial conducted with assessors, nor was he given an opportunity to waive that right. He remained incarcerated for over eight years before the appeal was finalised.

The appeal was upheld. The conviction and sentence were set aside, and the appellant was ordered to be released from custody with immediate effect.

The case reaffirms the peremptory nature of s 93ter(1) of the Magistrates’ Courts Act in murder trials and underscores that failure to inform an accused of the right to assessors renders the trial a nullity. It strengthens procedural safeguards for accused persons and confirms that improper court constitution is a fatal defect, regardless of the merits of the evidence.