Director of Public Prosecutions, KwaZulu-Natal v Brian Munsamy Pillay

The respondent (Pillay) and a co-accused were charged with murder in the Regional Court, Durban. They were legally represented throughout. On 7 March 2018, at a pre-trial conference, both accused were present and represented. The record shows they were advised of the use of lay assessors and confirmed they understood this. Their attorney (Mr Luckychand) confirmed that no assessors would be required, and both accused confirmed the same. When the trial commenced on 18 May 2018, before a different magistrate, the legal representative again confirmed that no assessors were required. The trial proceeded without assessors. On 18 August 2018, the respondent was convicted of murder (his co-accused was acquitted) and was sentenced to 10 years' imprisonment on 21 August 2018. The respondent was granted leave to appeal his conviction to the KwaZulu-Natal High Court, Pietermaritzburg. Shortly before the appeal hearing, the high court issued a directive requiring supplementary heads on compliance with s 93ter(1) of the Magistrates' Courts Act 32 of 1944 (MCA), which had not been raised as a ground of appeal. The high court held the peremptory requirements of s 93ter(1) had not been satisfied and set aside the conviction and sentence without dealing with the merits of the appeal.

• What are the peremptory requirements of s 93ter(1) of the Magistrates' Courts Act 32 of 1944 for the proper constitution of a regional court in a murder trial?
• What duties does a magistrate have when an accused is legally represented regarding compliance with s 93ter(1)?
• What constitutes a sufficient 'request' by an accused that the trial proceed without assessors as required by s 93ter(1)?
• What must appear on the record to demonstrate compliance with s 93ter(1)?
• Whether the high court erred in finding non-compliance with s 93ter(1) on the facts of this case?

1. The appeal is upheld. 2. The high court's order is set aside. 3. The respondent's conviction and sentence imposed by the Regional Court Durban are reinstated. 4. The respondent's appeal against his conviction is remitted to the high court.

Section 93ter(1) of the Magistrates' Courts Act is peremptory and prescribes the proper constitution of a regional court in murder trials. The magistrate must be assisted by two assessors unless the accused requests that the trial proceed without assessors. Where an accused is legally represented, the magistrate must ensure that: (1) the accused is informed of the provisions of s 93ter(1) (either directly or through the legal representative); and (2) establish whether the accused has made a request to proceed with or without assessors. This request may be communicated through the legal representative. The section does not confer a 'right' to be tried with assessors requiring detailed explanation and formal waiver, but rather requires a 'request' by the accused regarding court composition. Courts must respect the role of legal representatives in advising clients on their rights and communicating decisions to the court. A legal representative's statement that assessors are or are not required constitutes compliance with s 93ter(1), as it is implicit that the accused has been properly advised, unless something emerges to suggest otherwise. Whether there has been compliance with s 93ter(1) is a fact-based inquiry to be determined according to the circumstances of each case. There is no prescribed formula or rigid procedural requirements for compliance.

The Court in both judgments made observations regarding the role and duties of legal representatives. Goosen JA emphasized that legal representation encompasses acting in the client's best interests according to the highest professional ethics standards, advising the client fully on their rights, and guiding the client in exercising those rights. This includes advising on s 93ter(1) where applicable. Presiding officers must respect an accused's choice of legal representative and defer to the representative's conduct of the matter, consistent with the adversarial system. Schippers JA observed that legal competence necessarily entails knowledge of the law including s 93ter(1), and courts act on the assumption that a duly admitted lawyer is competent. It is the duty of legal representatives to ensure constitutional rights are not violated and that the accused has a fair trial. The manner in which a client's case is conducted vests in the legal representative, who has complete control over the conduct of the case. Courts should not look behind decisions made by counsel in good faith and in the client's best interests, save to prevent a miscarriage of justice. Both judgments expressed criticism of the approach in Langalitshoni and similar cases for imposing requirements at odds with the nature of legal representation and based on misconceptions about the rights conferred by s 93ter(1).

This judgment provides authoritative clarification on the interpretation and application of s 93ter(1) of the Magistrates' Courts Act, resolving a conflict in high court jurisprudence. It establishes clear principles regarding: (1) the duties of a magistrate when an accused is legally represented in ensuring compliance with s 93ter(1); (2) that the section requires a 'request' by the accused (not a waiver of rights) regarding assessors; (3) that where an accused is legally represented, communication regarding s 93ter(1) may properly occur through the legal representative; (4) that courts must respect the role of legal representatives in advising clients and conducting matters in their best interests; (5) that compliance with s 93ter(1) is a fact-based inquiry depending on the circumstances of each case. The judgment rejects the prescriptive and onerous approach adopted in Langalitshoni and subsequent KwaZulu-Natal cases, which had created uncertainty and resulted in numerous convictions being set aside. It affirms the approach in S v Ngomane. The decision has practical significance for all murder trials in regional courts and reinforces principles regarding the role and responsibilities of legal representatives in criminal proceedings.