Gayiya v S

The appellant was arraigned before the regional court, Bethal, on 20 February 2002 on five charges: kidnapping, assault with intent to cause grievous bodily harm, murder, and two firearms-related offences, all allegedly committed on 29 September 1998. He pleaded guilty to kidnapping and murder. On the evening in question, the accused and six others went to fetch a firearm from a person named Castro. Castro was struck by one of the accused's companions, then forced to accompany them at gunpoint. The accused was instructed by another member of the group to shoot Castro, which he did, firing two shots to Castro's head. The accused was convicted on counts 1 and 3 based on his guilty plea, and on the remaining counts based on formal admissions. He was sentenced by the High Court to life imprisonment for murder and concurrent sentences for the other offences. The trial proceeded without assessors. Only after conviction on 27 May 2002 did the regional magistrate inform the accused that he had omitted to inform him of his right to have assessors appointed. The accused stated he did not need assessors at trial but would want them at sentencing. The application for leave to appeal was lodged in 2010 but only heard in 2014, when Bertelsmann J identified the irregularity regarding the absence of assessors and granted leave to appeal.

• Whether the regional court was properly constituted when it tried the accused on a charge of murder without assessors and without having informed the accused of his right to request that assessors not be appointed
• Whether the failure to comply with the mandatory provisions of the proviso to s 93ter(1) of the Magistrates' Courts Act 32 of 1944 constituted a fatal irregularity
• Whether the accused's purported waiver of assessors after conviction could cure the defect in the constitution of the court

The appeal succeeded. The convictions and sentences were set aside.

The proviso to s 93ter(1) of the Magistrates' Courts Act 32 of 1944 is peremptory and requires that when an accused is charged with murder in a regional court, the judicial officer shall be assisted by two assessors unless the accused requests before trial that the trial proceed without assessors. Where the regional magistrate fails to inform the accused of this right before the commencement of the trial and proceeds without assessors when no request to dispense with assessors has been made, the court is not properly constituted. An irregularity arising from the improper constitution of a court cannot be waived by an accused person, whether before, during, or after trial. A purported waiver made after conviction, when the accused is belatedly informed of the right to assessors, does not cure the deficiency in the court's constitution. Where the prescribed quorum is not met, the proceedings are fundamentally irregular and the convictions and sentences must be set aside.

Mpati P expressed serious doubts about the correctness of the accused's conviction on counts 1 and 2 (kidnapping and assault with intent to cause grievous bodily harm) on the basis of the doctrine of common purpose, but stated it was not necessary to elaborate on this point given the court's decision on the main issue. The court also noted that the delay of almost four years between the lodging of the application for leave to appeal in 2010 and its hearing in 2014 was unacceptable, though this did not affect the outcome of the appeal.

This case establishes the binding principle that strict compliance with the mandatory provisions of s 93ter(1) proviso of the Magistrates' Courts Act is essential to the proper constitution of a regional court when trying murder charges. It confirms that the right to assessors in murder trials is a fundamental procedural safeguard that must be explained to the accused before plea, and that failure to do so is a fatal irregularity that cannot be waived or cured retrospectively. The judgment reinforces the principle that proper constitution of a court is a jurisdictional requirement, and defects in constitution render proceedings invalid regardless of subsequent consent or waiver by the accused. It serves as an important reminder to regional magistrates of their mandatory obligations under the Act and the consequences of non-compliance. The case also highlights the principle that procedural fairness requires that accused persons be informed of their rights at the appropriate stage of proceedings, not after the fact.