Mziwabantu Madiba Mncwengi & others v The State

Six appellants were tried in the Western Cape Division of the High Court before Boqwana J and two assessors, Mr H Swart and Ms S Solomons (a practicing attorney), on three counts of murder, four counts of kidnapping and one count of assault with intent to do grievous bodily harm. The trial commenced on 14 August 2013. After seven months of trial, during which 22 witnesses had testified, one assessor, Ms Solomons, failed to return to the trial. On 17 March 2014, she was booked off sick due to acute anxiety disorder. Prior to this, she had informed the judge that she had been offered a position to act as a magistrate in Upington and requested release from her assessor duties, which was declined. When the trial resumed on 24 March 2014, Ms Solomons did not attend and was eventually found at the Upington Magistrate's Court. She subsequently explained in writing that the trial had exceeded its estimated duration, severely compromised her financial position due to loss of income from her practice, and that she had signed a contract on 17 March 2014 to act as a magistrate in Upington. She advised she would not return to the trial. The trial judge ruled that Ms Solomons was unable to continue as assessor under section 147 of the Criminal Procedure Act 51 of 1977 and directed the trial to continue before the remaining members. All appellants were convicted on 19 November 2014 and sentenced to an effective 18 years' imprisonment on 24 March 2015.

• Whether the trial court was properly constituted after one assessor absented herself from the trial
• Whether section 147(1) of the Criminal Procedure Act 51 of 1977 permitted the trial to continue before the remaining members of the court
• The proper interpretation of 'unable to act' in section 147(1) of the Criminal Procedure Act
• Whether the continuation of the trial in the absence of one assessor constituted a fatal procedural irregularity
• Whether an assessor's financial hardship and unwillingness to continue due to a protracted trial constitutes 'inability to act' under section 147

The appeals were upheld. The convictions and sentences of all six appellants were set aside. The registrar of the Supreme Court of Appeal was directed to send a copy of the judgment to the Magistrate's Commission and the Legal Practice Council for investigation of Ms Solomons' conduct.

The ratio decidendi is that section 147(1) of the Criminal Procedure Act 51 of 1977 requires an objective determination that an assessor has an actual inability to perform the functions of an assessor before a trial can continue before remaining members. Such inability must derive from an inherent physical or mental condition or a situation which physically prevents the assessor from attending trial. Financial hardship resulting from a protracted trial, and an assessor's voluntary decision to accept alternative employment, constitutes unwillingness to continue rather than inability to act within the meaning of section 147(1). An accused person has the right to be tried by the court as constituted when the trial commenced, and any deviation from proper constitution of the court, except as authorized by section 147, constitutes a fatal procedural irregularity that vitiates the proceedings and cannot be waived. The power vested in a trial judge to determine inability of an assessor to continue must be narrowly construed and based on objectively adequate grounds.

The court made strong obiter comments deprecating the conduct of Ms Solomons, describing it as a clear case of abscondment and dereliction of duty as an assessor. The court stated that her conduct warranted referral to the Magistrate's Commission and Legal Practice Council to investigate whether it fell short of the standard expected of an officer of the court. The court also expressed understanding for the trial judge's exasperation at the untenable situation created by Ms Solomons' absence, while nonetheless holding that the law required a different outcome. The court noted the importance of assessors' role as articulated in S v Jaipal, emphasizing that their dignity, status and needs must be respected, but equally that assessors must be aware of the significance of their role and act accordingly. The court also commented that to find financial impoverishment amounts to inability to act would be straining the language of section 147 beyond what the Legislature contemplated.

This case provides important clarification on the narrow interpretation of section 147(1) of the Criminal Procedure Act regarding when an assessor becomes 'unable to act' and a trial may continue before remaining members. It reaffirms and applies the binding precedents in S v Gqeba and S v Malindi, establishing that 'unable to act' requires objective physical or mental incapacity, not mere unwillingness due to financial hardship or other personal circumstances. The judgment reinforces the constitutional principle that an accused person has the right to be tried by the court as constituted at the commencement of trial, and that improper constitution of the court is a fatal irregularity that cannot be waived. It provides guidance on the objective standard required for a trial judge to form an opinion that an assessor has become unable to act. The case also highlights the duties and obligations of assessors in criminal trials and the consequences of dereliction of those duties. It clarifies that even where continuation of a trial may seem practically justified in the interests of expedience, courts must strictly adhere to procedural requirements that safeguard fair trial rights. The judgment distinguishes and limits the application of decisions like S v Matakati which had adopted a broader interpretation of 'unable to act'.