Durban – After spending almost 20 years behind bars, Lucky Shange got a call this week to tell him he was a free man.
“When I phoned him, he couldn’t speak. He just cried,” Shange’s lawyer, Zamani Ncama – of Ncama, Zungu and Associates – said yesterday.
Ncama said Shange was still too emotional to talk about the matter.
This after the Supreme Court of Appeal (SCA) overturned the KwaNdengezi man’s convictions for murder, robbery with aggravating circumstances and being in possession of a firearm as well as the accompanying life sentences handed down when he was sentenced in 2000.
Judge Carole Lewis, with four judges concurring, ruled that the trial court had not been “properly constituted”.
“And the convictions and sentences must be set aside as being incompetent within the meaning of… the Criminal Procedure Act,” she said, before ordering Shange’s immediate release from Westville Prison.
Now 37, Shange was arrested and charged with the crimes in question when he was just 18. Two years later, he was found guilty in the Durban Regional Court. He was sentenced to two life terms – for murder and robbery with aggravating circumstances – and an additional two years in prison, for being in possession of a firearm without a licence.
A year later, his appeal in the Pietermaritzburg High Court was dismissed.
“He didn’t have any money to pay lawyers to take on his case,” Ncama said.
Ncama said after his firm heard about the story they decided to take it on the case without asking for fees. And in 2015, Shange was granted special leave to appeal against his convictions again, this time before the SCA in Bloemfontein.
On Tuesday, during the appeal hearing, it emerged that the magistrate who found Shange guilty had not sat with assessors.
The SCA judgment ex- plained that – as per the Magistrate’s Courts Act – if someone was before a regional court on a murder charge, the presiding magistrate had to be assisted by two assessors – to help him – during the trial, unless the person on trial requested otherwise.
“In this matter, (Shange) was not legally represented throughout the trial,” Judge Lewis said, “And there is nothing on the record to suggest that he was ever made aware of the requirement that the regional magistrate sit with assessors or of his right to choose whether assessors assist with the trial.”
She said while Shange’s lawyers had not raised this issue in their heads of arguments, they had brought it up with the lawyers acting for the State the day before the hearing.
“Counsel for the State conceded the point, and accepted that the convictions and sentences should be set aside and (Shange) immediately released from prison,” she said.