THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 478/2020
In the matter between:
EDWARD MNTAMBO

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Edward Mntambo v The State (Case no 478/2020) [2021]
ZASCA 17 (11 March 2021)

Coram:
MOCUMIE, DLODLO and MBATHA JJA and WEINER
and POYO-DLWATI AJJA

Heard:
By agreement, matter disposed of without oral hearing in
terms of s 19(a) of the Superior Courts Act 10 of 2013.

Delivered:
The order was handed down on 22 February 2021. This
judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to have been at 10h00
on 11 March 2021.

Summary: Criminal law – practice and procedure – charge of murder –
appointment of assessors in terms of   the proviso to s 93ter (1) of the Magistrates’
Courts Act 32 of 1944 not complied with – appellant not afforded opportunity to
elect whether the magistrate should sit with or without assessors – court not
properly constituted – fatal misdirection which vitiates the proceedings.

________________________________________________________________

ORDER
________________________________________________________________
On appeal from: Regional Court sitting at Verulam, KwaZulu-Natal (Magistrate
Mr Jacobs):
The appeal is upheld and the conviction and sentence are set aside.
The appellant is to be released from custody with immediate effect.
________________________________________________________________
JUDGMENT

________________________________________________________________
Weiner AJA: (Mocumie, Dlodlo and Mbatha JJA and Poyo-Dlwati AJJA
concurring)

[1] The appellant was convicted of murder by the Regional Court, sitting at
Verulam, KwaZulu-Natal on 27 September 2012. He was sentenced to fifteen
(15) years’ imprisonment. The Regional Court and the KwaZulu-Natal Division
of the High Court, Pietermaritzburg refused leave to appeal on 27 September
2012 and 14 May 2013 respectively. He petitioned this Court on 25 October 2016
and was granted special leave to appeal against both the conviction and sentence
on 19 December 2016. The appellant has been incarcerated for over eight years.

Condonation
[2] The appellant failed to comply with rules 7(1), 8 (1) and 10 (1) of this
Court’s rules in that he filed his notice of appeal, copies of the record and his
heads of argument out of time. He has filed an application for condonation and
for the appeal to be re-instated.

[3] In dealing with this issue, it is useful to refer to the judgment in this Court
in Mulaudzi v Old Mutual Life Assurance company (SA) Limited,1 where Ponnan
JA stated that:
‘Factors which usually weigh with this court in considering an application for condonation
include the degree of non-compliance, the explanation therefor, the importance of the case, a
respondent’s interest in the finality of the judgment of the court below, the convenience of this
court and the avoidance of unnecessary delay in the administration of justice.2
In applications of this sort the prospects of success are in general an important, although not
decisive, consideration. As was stated in Rennie v Kamby Farms (Pty) Ltd, it is advisable,
where application for condonation is made, that the application should set forth briefly and
succinctly such essential information as may enable the court to assess an applicant's prospects
of success.’3

[4] The reasons for the appellant’s non-compliance with the abovementioned
rules are set out in detail by the appellant. For purposes of this enquiry, it is
unnecessary to give a detailed account. Suffice it to state that the inordinate delay
of over five years was apparently caused by his erstwhile attorney providing
inadequate service and his inability to raise funds to pursue the appeal after the
Legal Aid Board refused his application for legal assistance, which resulted in the
notice of appeal, copies of the record and his heads of argument being filed out
of time. He was saved by his current attorney in ensuring that the appeal be
reinstated. The attorney filed an affidavit confirming this explanation. For that
reason, although the delay of over five years is inordinate and would ordinarily
not be countenanced, his explanation is accepted as reasonable for the purposes
of assessing whether good cause has been made out for condonation. On the
prospects of success, a necessary requirement for condonation to be granted, I
will deal briefly with the facts leading to the appellant’s conviction.

1 Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public
Prosecutions and Another v Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA).
2 Ibid para 26.
3 Ibid para 34.

[5] The appellant contended that he was convicted on the basis of the evidence
of the deceased’s mother and her grandson. Both alleged that on the fateful night
two men entered their home while they were sleeping and shot the deceased. The
deceased died later in hospital. The deceased’s mother said that she identified the
appellant as the assailant that pulled the trigger. She insisted that she identified
him through a light from the screen of a cell phone. However, in her statement to
the police she stated that she could not identify him. She saw him again the
following day and told her grandson that the appellant was the perpetrator. The
magistrate dealt with the grandson’s evidence as that of a single witness.
[6] The State’s evidence suffered from the typical shortcomings of evidence
of a single identifying witness. In the absence of any aliunde evidence which
could pin the appellant to the commission of the murder, he ought to have been
discharged upon an application brought under s 174 of the Criminal Procedure
Act 51 of 1977. The evidence of the State was simply not satisfactory. For these
reasons, I have serious doubts about the correctness of the accused’s conviction
on the count of murder, but in the view I take of the matter, it is not necessary to
say more in that regard.
[7] Having regard to the explanation the appellant has provided and the
applicable legal principles, the appellant has established good grounds for
condonation and the re-instatement of the appeal. The State does not oppose the
application for condonation for non-compliance with the rules of this Court and
the re-instatement of the appeal. Condonation is accordingly granted and the
appeal is re-instated.

Section 93ter (1) of the Magistrates’ Courts Act No 32 of 1944 (the Act)
[8] The appellant has raised the challenge that there was non-compliance with
the provisions of the proviso to s 93ter (1) of the Act, which provides that, when

facing a murder charge, assessors must be appointed by the magistrate unless the
accused waives such right. The section reads:
‘93ter  Magistrate may be assisted by assessors
1) The judicial officer presiding at any trial may, if he deems it expedient for the administration
of justice-
(a)   before any evidence has been led; or
(b)   in considering a community-based punishment in respect of any person who has been
convicted of any offence, summon to his assistance any one or two persons who, in his opinion,
may be of assistance at the trial of the case or in the determination of a proper sentence, as the
case may be, to sit with him as assessor or assessors: Provided that if an accused is standing
trial in the court of a regional division on a charge of murder, whether together with other
charges or accused or not, the judicial officer shall at that trial be assisted by two assessors
unless such an accused requests that the trial be proceeded with without assessors, whereupon
the judicial officer may in his discretion summon one or two assessors to assist him.’ [Emphasis
added]

[9] Until the judgment in S v Gayiya4 there were conflicting judgments in
relation to the interpretation of s 93ter(1). This Court in Gayiya referred to Chala
and Others v Director Of Public Prosecutions, KwaZulu-Natal and Another,5
stating that the conflicting authorities had been succinctly dealt with in that case.
In Gayiya, it was held that the appointment of assessors was peremptory, unless
the accused requests, prior to him pleading to a charge of murder, that the trial
should proceed without assessors. Mpati P stated:
‘In my view the issue in the appeal is the proper constitution of the court before which the
accused stood trial. The section is peremptory. It ordains that the judicial officer presiding in a
regional court before which an accused is charged with murder (as in this case) shall be assisted
by two assessors at the trial, unless the accused requests that the trial proceed without assessors.
It is only where the accused makes such a request that the judicial officer becomes clothed with
a discretion either to summon one or two assessors to assist him or to sit without an assessor.
The starting point, therefore, is for the regional magistrate to inform the accused, before the

4 S v Gayiya  [2016] ZASCA 65; 2016 (2) SACR 165 (SCA).
5 Chala and Others v Director of Public Prosecutions, Kwazulu-Natal and Another 2015 (2) SACR 283 (KZP).

commencement of the trial, that it is a requirement of the law that he or she must be assisted
by two assessors, unless he (the accused) requests that the trial proceed without assessors.
. . .
In the present matter, the quorum prescribed by the proviso to ss (1) of s 93ter of the
Magistrates' Courts Act was three members, namely the regional magistrate and two assessors,
unless the accused had requested that the trial proceed without assessors, in which event in his
discretion the regional magistrate could, sitting alone, have constituted a quorum. No such
request was made by the accused.’6

[10] The court held that the failure to comply with the proviso resulted in the
court not being properly constituted and it set aside the conviction and sentence.
In Shange v S,7 Lewis JA referred to and endorsed Gayiya. She stated:
‘In S v Gayiya 2016 (2) SACR 165 (SCA) this court, referring to Chala v DPP, KwaZulu-Natal
2015 (2) SACR 283 (KZP) and the authorities discussed there, considered that where the
regional magistrate had not sat with assessors, and the accused had not requested that the trial
not proceed with assessors, the court was not properly constituted and that the convictions and
sentences had to be set aside.’

[11] In the present matter, it is clear from the record of the proceedings that the
appellant was not afforded an opportunity by the magistrate to decide whether to
request that the trial proceed with or without assessors before he was asked to
plead. It is common cause that there was non-compliance with the proviso to
s 93ter (1) of the Act in that no assessors were appointed in terms of the proviso
to the section and the appellant did not waive his right to such appointment. This
is a fatal misdirection which vitiates the proceedings. The State properly
conceded the point and accepted that the conviction and sentence should be set
aside and the appellant immediately released from prison. The appeal must
therefore succeed.

6 Gayiya fn 4 paras 8 and 11.
7 Shange v S [2017] ZASCA 51.

[12] Accordingly:
The appeal is upheld and the conviction and sentence are set aside.
The appellant is to be released from custody with immediate effect.

__________________________

SHARISE WEINER
ACTING JUDGE OF APPEAL

Represented by:
For appellant:

S Matthews
Instructed by:

Johan Jooste & CO Attorneys, Durban

Spangenberg Zietsman Attorneys, Bloemfontein

For respondent:

DA Paver
Instructed by:

The Director of Public Prosecutions, Pietermaritzburg

The Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF THE JUDGMENT DELIVERED

FROM

The Registrar, Supreme Court of Appeal

DATE

11 March 2021

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

Edward Mntambo v The State (Case No: 478/2020) [2021] ZASCA 17 (11
March 2021)

___________________________________________________________________________

Today the Supreme Court of Appeal (SCA) upheld the appeal by the appellant
against the judgment of the Regional Court sitting at Verulam, KwaZulu Natal.
Leave to appeal was refused by the KwaZulu Natal Division of the High Court.
This court granted leave to appeal.
In terms of the proviso to s 93ter (1) of the Criminal Procedure Act, an accused,
prior to pleading to a charge of murder, must elect whether or not he wishes the
trial to proceed with or without assessors or whether he waives such right. The
appellant was not afforded such opportunity by the Regional Magistrate.

There was thus was non-compliance with the proviso to s 93ter (1) of the
Criminal Procedure Act. This is a fatal misdirection which vitiates the
proceedings.
The State properly conceded the point and accepted that the conviction and
sentence should be set aside and the appellant immediately released from prison.
The appeal therefore succeeded. The appellant was released from custody on 22
February 2021. The judgment setting out the reasons for such order were
delivered on 11 March 2021.