Edward Mntambo v The State

The appellant was convicted of murder by the Regional Court at Verulam, KwaZulu-Natal on 27 September 2012 and sentenced to fifteen years' imprisonment. The conviction was based on evidence of the deceased's mother and her grandson, who alleged that two men entered their home at night and shot the deceased. The mother claimed to have identified the appellant as the shooter through light from a cell phone screen, although she had previously told police she could not identify him. The appellant was not afforded the opportunity to elect whether the magistrate should sit with or without assessors before the trial commenced. The Regional Court and the High Court refused leave to appeal, but the Supreme Court of Appeal granted special leave to appeal in December 2016. The appellant had been incarcerated for over eight years by the time of this judgment.

• Whether the court was properly constituted under the proviso to section 93ter(1) of the Magistrates' Courts Act 32 of 1944
• Whether the appellant should have been afforded the opportunity to request that the trial proceed with or without assessors before pleading to the charge of murder
• Whether condonation should be granted for non-compliance with the Supreme Court of Appeal's rules regarding filing of notice of appeal, record and heads of argument
• Whether the State's evidence was sufficient to sustain a conviction for murder

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

In terms of the proviso to section 93ter(1) of the Magistrates' Courts Act 32 of 1944, when an accused is standing trial in a regional court on a charge of murder, the judicial officer shall be assisted by two assessors unless the accused requests that the trial proceed without assessors. The section is peremptory and the accused must be afforded the opportunity to make such a request before pleading. Failure to comply with this requirement results in the court not being properly constituted, which is a fatal misdirection that vitiates the proceedings and requires the conviction and sentence to be set aside.

The court expressed serious doubts about the correctness of the appellant's conviction on the murder charge based on the quality of the identification evidence. The court noted that the State's evidence suffered from typical shortcomings of evidence from a single identifying witness, and in the absence of any aliunde evidence linking the appellant to the commission of the murder, he ought to have been discharged upon a section 174 application as the State's evidence was not satisfactory. However, the court found it unnecessary to fully determine this issue given the finding on the section 93ter(1) irregularity. The court also reviewed the factors relevant to condonation applications, including the degree of non-compliance, the explanation therefor, the importance of the case, the respondent's interest in finality, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice, with prospects of success being an important but not decisive consideration.

This case reinforces the strict peremptory requirements of section 93ter(1) of the Magistrates' Courts Act regarding the appointment of assessors in regional court murder trials. It confirms that the provision is mandatory and that failure to comply with the procedural requirement that an accused be given the opportunity to request that the trial proceed without assessors results in the court not being properly constituted, which is a fatal irregularity requiring the setting aside of any conviction and sentence. The judgment emphasizes the importance of proper court constitution in criminal trials and demonstrates the appellate courts' willingness to correct such fundamental procedural defects even where significant time has elapsed since conviction.