Mncwengi and Others v The State

The six appellants were tried in the Western Cape Division of the High Court on multiple counts of murder, kidnapping and assault with intent to do grievous bodily harm. The trial was conducted before a judge and two assessors. After approximately seven months of trial and the testimony of 22 witnesses, one assessor, Ms S Solomons (a practising attorney), absented herself and refused to return, citing financial hardship caused by the prolonged trial and her acceptance of an acting magistrate position in Upington. Despite not being formally released, she did not resume her duties. The trial judge ruled that she was ‘unable to act’ in terms of section 147 of the Criminal Procedure Act 51 of 1977 and directed that the trial continue before the remaining judge and assessor. The appellants were convicted and sentenced to an effective 18 years’ imprisonment. Leave to appeal was granted solely on the issue whether the trial should have continued or started de novo after the assessor’s absence.

The appeals were upheld. The convictions and sentences of all six appellants were set aside. The registrar was directed to forward the judgment to the Magistrate’s Commission and the Legal Practice Council for consideration of the absent assessor’s conduct.

The case authoritatively clarifies the meaning of ‘unable to act’ in section 147 of the Criminal Procedure Act and reinforces the principle that an accused must be tried by a properly constituted court throughout the trial. It confirms that unwillingness, financial hardship or loss of commitment by an assessor does not justify continuation of a trial in their absence. The judgment strengthens fair trial rights under section 35 of the Constitution and affirms the binding nature of SCA precedent on lower courts.