Shange v The State

The appellant, Lucky Vincent Shange, was convicted in the Durban Regional Court in February 2000 of murder, robbery with aggravating circumstances, and unlawful possession of a firearm. The convictions were confirmed by the KwaZulu-Natal High Court and he was sentenced to two terms of life imprisonment and an additional two years. His appeal to the full bench of the High Court was dismissed in 2001, and he remained incarcerated for approximately 17 years. In 2015, special leave to appeal was granted by the Supreme Court of Appeal. At the hearing, it emerged that the regional magistrate had conducted the murder trial without sitting with assessors, as required by law, and without the appellant having waived this right.

The appeal was upheld; all convictions and sentences were set aside; and the appellant was ordered to be released from custody with immediate effect.

The case reinforces the peremptory nature of section 93ter(1) of the Magistrates’ Courts Act in murder trials and confirms that non-compliance renders proceedings a nullity. It underscores the importance of procedural safeguards, particularly for unrepresented accused, and affirms that failure to properly constitute a court leads to automatic setting aside of convictions.