Durban - Four men convicted of murder and attempted murder – and each serving 40-year prison sentences – walked free after less than two years in jail after their trial was deemed “fundamentally unfair” because the presiding regional court magistrate had not appointed lay assessors to assist him.
Although the judge who made the ruling recommended that they be prosecuted afresh, their attorney confirmed that this had not yet happened.
“They were released at the end of December. The court did not order that they be recharged and, to my knowledge, they have not been,” attorney Sibongeiseni Cele said.
Approached for comment, National Prosecuting Authority spokeswoman Natasha Ramkisson-Kara said the NPA was aware of the matter.
“The accused and the witnesses have been traced and summons will be issued in due course for them to appear in the Verulam Court.”
The ruling by Judge Rashid Vahed, with Acting Judge Bulelwa Ndamase concurring, has important ramifications for regional court murder trials in KwaZulu-Natal, because it replaces the last decided case in this division which dictated that the failure to appoint assessors was merely an “irregularity” and it did not necessarily follow that it was a failure of justice.
The case came before the judges as a review, the lawyers for the four convicted men – Xolani Chala, Skhumbuzo Jali, Mphathi Manjanja and Phumelele Bangilizwe – arguing the Verulam Regional Court magistrate who convicted and sentenced them had not invoked the provisions of the Magistrate’s Court Act.
These make it compulsory for assessors to sit with a regional magistrate when dealing with case of murder except if the accused, after being given a full explanation of their role, says he or she does not want them.
As opposed to assessors appointed in high courts, who have legal experience, lay assessors are community members, who can assist magistrates with input about communal values and standards so that accused people are not judged by “incorrect yardsticks”.
According to one reported case dealing with their role: “The object is to bridge what was conceived to be the cultural gap between the magistrates and the large number of intellectually unsophisticated and uneducated accused persons who frequently come to trial before them”.
The review judges said the decided case in KwaZulu-Natal was State v Naicker, reported in 2008, which was at odds with other cases from other divisions but was binding on courts here.
They said while the judges in that matter had given a detailed analysis of the cultural and constitutional aspects of the issue, they had overlooked and under-assessed the contributions assessors made, dismissing them as “seldom essential to the outcome of the real case”.
But since then other judges in other divisions had found this to be wrong, ruling that failure to comply was a “fatal irregularity”.
“This is the overwhelming sentiment,” Judge Vahed said, finding that what Naicker did was “clearly wrong and does not constitute good law”.
He said the record of the relevant proceedings should always reflect that a proper explanation was being given by the magistrate to the accused about the role of assessors and should reflect their response.
In the matter before him, this had not been done and it was proper that the convictions and sentences be set aside. He urged the director of public prosecutions to ensure that the prosecution was pursued afresh before a properly constituted court.
A Durban Regional Court magistrate, who did not wish to be named, said he and most of his colleagues had been following the law, explaining the provisions to the accused, but in “99.9%” of cases, the accused did not wish assessors appointed, apparently because they did not trust them because they had no legal training.
The Mercury