Shange v S

The appellant, Mr Lucky Vincent Shange, was convicted in the Durban Regional Court on 8 February 2000 of murder, robbery with aggravating circumstances, and possession of a firearm without a licence. The convictions were referred to the KwaZulu-Natal High Court for confirmation and sentencing in terms of the Criminal Law Amendment Act 105 of 1997. Hugo J confirmed the convictions and sentenced the appellant to life imprisonment for murder, life imprisonment for robbery with aggravating circumstances, and two years' imprisonment for unlawful possession of a firearm. The appellant was granted leave to appeal against the convictions, but the appeal was dismissed by the full court (Magid J, Levisohn J and M Southwood AJ concurring) on 8 November 2001. The appellant was unrepresented throughout the trial. He had been incarcerated for approximately 17 years at the time of this appeal. The appellant applied for and was granted special leave to appeal to the Supreme Court of Appeal in 2015.

• Whether the regional magistrate's court was properly constituted when the trial proceeded without assessors in a murder trial
• Whether the failure to sit with assessors as required by section 93ter(1) of the Magistrates' Courts Act 32 of 1944 rendered the convictions and sentences incompetent
• Whether the appellant had been informed of and validly waived his right to have the trial proceed with assessors

The appeal was upheld. The convictions and sentences in respect of the appellant were set aside. The appellant was ordered to be released from custody with immediate effect.

Where a regional magistrate presides over a murder trial without assessors, and the accused has not been informed of and has not validly requested that the trial proceed without assessors as required by section 93ter(1) of the Magistrates' Courts Act 32 of 1944, the court is not properly constituted. The requirement to sit with assessors in murder trials is peremptory, not directory. Such non-compliance renders any convictions and sentences incompetent within the meaning of section 324(a) of the Criminal Procedure Act 51 of 1977, and they must be set aside. There is no record evidence that can substitute for the statutory requirement that the accused must affirmatively request that the trial proceed without assessors.

The court noted that the co-accused was legally represented but there was also nothing to show that he had been given any choice regarding assessors. While this was not central to the determination regarding the appellant, it suggests the procedural irregularity may have affected both accused persons. The court's observation that counsel for the State 'very properly conceded the point' reflects the ethical duty of the prosecution to assist the court in ensuring justice is done, even where this may be contrary to the State's initial position. The court also noted the significant period of incarceration (17 years) that had elapsed, though this factual observation did not form part of the legal reasoning for setting aside the convictions.

This case reinforces the peremptory nature of the requirement in section 93ter(1) of the Magistrates' Courts Act that murder trials in regional courts must be conducted with two assessors unless the accused validly requests otherwise. It emphasizes the importance of proper court constitution and procedural compliance in criminal trials, particularly in serious cases such as murder. The judgment demonstrates that even where an accused has been incarcerated for a significant period (17 years in this case), fundamental procedural irregularities that render the court's constitution incompetent will result in convictions being set aside. The case also highlights the duty of the court to ensure that unrepresented accused persons are properly informed of their rights, including the right to have assessors assist in a murder trial. It confirms the application of the principles established in S v Gayiya regarding the consequences of failing to comply with the assessor requirements.