THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 395/2018

In the matter between:

MZIWABANTU MADIBA MNCWENGI

FIRST APPELLANT
MZIMASI MADIBA MNCWENGI

SECOND APPELLANT
BUYELWA NOKWANDISA MNCWENGI

THIRD APPELLANT
LUMKO BAMBALAZA

FOURTH APPELLANT
XOLANI MAKAPELA

FIFTH APPELLANT
MAWANDE SIBOMA

SIXTH APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Mncwengi & others v The State (395/2018) [2019] ZASCA
135 (1 October 2019)

Coram:
Petse DP, Saldulker, Van der Merwe and Nicholls JJA and
Hughes AJA

Heard:
06 September 2019

Delivered:
1 October 2019

Summary: Criminal law and procedure - assessor sitting in prolonged trial -
assessor not unable to continue to act as such - trial court ruled in terms of s147
of the Criminal Procedure Act 51 of 1977 that trial continue before remaining
members – ruling constituting procedural irregularity vitiating the proceedings –
convictions and sentences set aside.

_________________________________________________________________

ORDER
_________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town
(Boqwana J sitting as court of first instance, with remaining assessor, Mr H
Swart):

The appeals are upheld.
The convictions and sentences of all the appellants are set aside.
The registrar of this court is directed to send a copy of this judgment to the
Magistrate’s Commission and the Legal Practice Council.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Saldulker JA (Petse DP, Van der Merwe and Nicholls JJA and Hughes AJA
concurring):

Introduction
[1] The six appellants were tried in the Western Cape Division of the High
Court, Cape Town (the high court) on three counts of murder, four counts of
kidnapping and one count of assault with the intent to commit grievous bodily
harm, before Boqwana J and two assessors, Mr H Swart and Ms S Solomons, the
latter being a practicing attorney. During a protracted trial, one of the assessors,
Ms Solomons, failed to return to the trial. The trial then continued before the
remaining members of the court to its conclusion. At the stage when Ms
Solomons failed to return, the trial had run for seven months and 22 witnesses

had already testified. On 19 November 2014, all the appellants were convicted on
three counts of murder and kidnapping, and one count of assault with intent to do
grievous bodily harm. On 24 March 2015, the high court imposed various
sentences, which culminated in an effective sentence of 18 years’ imprisonment
for each of the appellants.

[2] On 26 June 2015 the appellants applied for leave to appeal against their
convictions and sentences. Apart from attacking their convictions and sentences
on various grounds, the appellants also pertinently raised the issue whether the
high court had committed a fatal irregularity by continuing the trial in the absence
of one of the assessors, Ms Solomons. The applications for leave to appeal the
convictions and sentences were refused, but leave to appeal was granted to this
court on the limited issue formulated in the judgment of the high court in the
following terms: ‘whether the trial should have continued or started de novo upon
one of the members of the court becoming unable to act as an assessor’.

[3] Accordingly, the crisp question for decision in this appeal is whether the
continuation of the proceedings before the remaining members of the court was
authorised in terms of s147(1) of the Criminal Procedure Act 51 of 1977 (the
CPA). If this question is answered in the affirmative, the appeal must fail, but not
so if the answer is in the negative. This issue must then be considered against
the following factual backdrop.

Background
[4] On 14 August 2013, the appellants’ trial commenced. On 17 March 2014,
during a trial-within-a trial pertaining to the admissibility of certain warning
statements, Boqwana J informed counsel for the defence and the State that she
had received a medical certificate from a Dr P C Ndomile, stating that Ms
Solomons had been booked off sick by him due to acute anxiety disorder from 17

to 19 March 2014. The trial was then adjourned to 24 March 2014. Prior to the
court proceedings on 17 March 2014, Ms Solomons had informed Boqwana J that
she had been offered a position to act as a magistrate in Upington. Ms Solomons
requested that she be released from her obligations as an assessor in the trial.
Boqwana J declined the request. The office of the registrar attempted to contact
Ms Solomons for the duration of that week to ascertain the nature of her illness
and the period of her envisaged absence, but to no avail.

[5] When the trial resumed on 24 March 2014, Ms Solomons did not attend
court. At the behest of the trial judge, the registrar attempted to contact Ms
Solomons on the telephone number she had provided, but this proved fruitless.
An attempt was made to contact Ms Solomons at the Upington Magistrate’s Court
where it was suspected she might be, and where she was in fact found. Ms
Solomons was then requested by the trial judge to submit a written explanation
for her conduct. In response, Ms Solomons addressed a letter to the high court
explaining her reasons for not returning. These were that the duration of the trial
had far exceeded the allocated estimated time, and that this had severely
compromised her financial position. She attributed her dire financial situation to
the fact that her practice was not generating income because of her extended
absence.

[6] It is necessary to refer to portions of the letter which underpinned Ms
Solomons’ reasons:
‘Dear Judge and all the interested parties in the abovementioned matter. I hereby wish to
request your permission to excuse me permanently from the abovementioned matter S v
Mncwengi and 6 others. My reasons are as follows:
1.
When I was informed about the duration of the matter it was communicated to me
that the estimated period is six to eight weeks or a little bit longer. At that stage I did not
foresee any delay in the matter or that the matter could probably run for this lengthy
period. I first was not aware that the matter would take more than six months on the

Court’s roll. In the interim I did [lose] money, clients and financially I am not doing well.
I did alert the Honourable Judge NP Boqwana that I applied for other jobs and that I was
accepted to act as Magistrate in the District Court in Upington. The Honourable Judge
NP Boqwana and Assessor Mr Swart referred me to the provisions of the Criminal
Procedure Act 51 of 1977 as amended pertaining to the circumstances and conditions
under which an assessor could be excused from record.
I then attempted to make an appointment with the Judge President to discuss alternative
ways or the possibility of me not forfeiting the position as magistrate (acting) offered to
me in Upington. I was advised that my request to the Honourable Judge President would
be inappropriate. I then withdrew my planned appointment with the Judge President and
was faced with my own decision.
I stressed and panicked. I had to think about my family (3 children plus 1 child, 4 children)
my financial difficulties as well as my future in the legal profession. I did not make a
decision in isolation of the rights of the other parties that is the State Prosecutor, the
defence advocates, the accused and other parties involved in this matter.
My decision was based on the fact that there are cases in which only one assessor is
sitting my wish is for the matter to proceed in my absence and the rights of the accused
will not be affected because of my absence as the remaining assessor, Mr Swart is still
there assisting the Judge on the aspect of facts.
I hereby wish to apologise for the manner in which I dealt with the situation as well as to
plead to all the interested and relevant parties in this case to accept my reason and
absence from the case as I accepted and signed a contract to act as a magistrate in
Upington. S Solomons.’ (My emphasis.)

[7] The aforegoing letter was brought to the attention of counsel for the
defence and the State, and the matter was then postponed to 2 April 2014, for the
hearing of argument from all the parties as to whether the provisions of s147 of
the CPA were applicable. On the resumption of the trial, and after hearing
argument, the matter was again postponed to 14 April 2014 so as to obtain
further details from Ms Solomons with regard to her appointment as a magistrate
in Upington. On 14 April 2014, Ms Solomons advised the high court in further

correspondence that she had signed a contract on 17 March 2014 to act as a
magistrate in Upington, and that, in the circumstances, she would not return to
continue with the trial.

[8] The effect of Ms Solomons’ absence from the trial in light of s147 of the
CPA was argued extensively and the prevailing case law considered in the high
court. After hearing submissions from both the defence and the State, the high
court ruled that the provisions of s147 of the CPA were applicable. It then
considered that the absence of Ms Solomons and her reasons for absenting
herself from the trial rendered her unable to continue with the trial as
contemplated in s147 of the CPA. Thus, it directed that the trial proceed before
the remaining members of the court. The high court’s reasoning appear from the
following passages in its judgment:
‘[T]he most important principle stated by the court in the Jeke case which I find to be
equally important to the present matter is that where it is impossible to obtain or secure
the assessor’s presence the court may in the interest of justice direct the proceedings to
continue before the remaining member or members of the court or direct that the
proceedings start afresh. The Court found it would have been impossible to procure the
presence of the assessor and furthermore, because the matter was almost at the end of
the State’s case. It would not have been in the interest of justice, which is the chief and
overriding factors, to order that the trial start de novo.
. . .
In the same manner the continued presence of Ms Solomons in this trial would not have
served the interest of justice and those of the accused as her commitment was
questionable. Moreover, she departed not having been released by the Judge. It would
not have served the interest of justice and the accused for Ms Solomons to be forced to
sit in a trial in which she was not committed. I must stress that Ms Solomons was not
released by this court due to her unwillingness to act as assessor or due to lack of
interest rather, she advised having absconded that she could not come back citing
financial distress arising from loss of clients, wrong estimation of the trial duration which
had caused her stress and emotional distress and her appointment to act as a magistrate

in Upington.
. . .
my view is that the meaning of the word unable to act in section 147 of the Criminal
Procedure Act should be interpreted to include inability to deliver justice to the accused.
It must also be borne in mind that four of the accused persons had been in custody for
just over two years awaiting finalisation of the trial. The trial had been running for about
seven months and the state was nearing the close of its case in the main trial and the
trial-within-a-trial had commenced when the assessor became absent. Witnesses had
given extensive evidence some of whom individually testified for a number of days.’ (My
emphasis.)

[9] It is against the foregoing background that the issue raised in this appeal
must be considered. In this exercise there are pertinent statutory provisions and
previous decisions of this court that come to the fore.

Statutory framework
[10] Section 14(2) of the Superior Courts Act 10 of 2013 prescribes that a high
court in criminal matters must be constituted in the manner prescribed in the
applicable law. In the context of the facts of this case, the CPA is evidently the
applicable law which regulates the conduct of criminal trials. It is necessary to
emphasise that its provisions must be interpreted in a manner that promotes the
“spirit, purport and objects” of the Bill of Rights. Because criminal proceedings
must be conducted in a way that conduces to a fair trial, s35(3) of the Constitution
of the Republic of South Africa, 1996 is of primary importance when interpreting
the Criminal Procedure Act.1

[11] Section 145 of the CPA provides for the participation of assessors in a
criminal trial. In terms of s145 a judge in the high court may hear a case with one

1 S v Jaipal [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC); 2005 (1) SACR 215
(CC) para 32. S v Zuma 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC); 1995 (1) SACR 568.

or two assessors. Once appointed, an assessor becomes a member of the court.
Before an assessor hears any evidence, he or she has to take an oath or make
an affirmation, administered by the trial judge to give a true verdict upon the
issues to be tried, on the evidence placed before him or her. It affirms the
principle that an assessor who takes an oath or affirmation shall be a member of
the court, and thus participate in all the decisions of the court.2

[12] The relevant statutory provisions that deal with an assessor’s inability to
act as an assessor are located in s147 of the CPA, which permit a trial to be
continued in the absence of an assessor in certain specified circumstances.
Section 147 reads:
‘Death or incapacity of assessor.
(1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as
assessor at any time during a trial, the presiding judge may direct –
(a)
that the trial proceed before the remaining member or members of the court;
or
(b)
that the trial start de novo, and for that purpose summon an assessor in the place
of the assessor who has died or has become unable to act as assessor.’ (My emphasis.)

Discussion
[13] The proper interpretation of s147 has been considered in several judicial
dicta of this and other courts. More than two decades ago, this court had
occasion to consider the meaning of the words ‘unable to act’ in s147 in two
decisions, S v Gqeba & others 1989 (3) SA 712 (A); [1989] 2 All SA 425 (A) and
S v Malindi & others 1990 (1) SA 962 (A); [1990] 4 All SA 433 (AD).

S v Gqeba
[14] In Gqeba, during the trial of 14 accused charged with murder, one of the
assessors was discharged by the trial judge in terms of s147 of the CPA. The

2 R v Price 1955 (1) SA 219 (A); [1955] 1 All SA 332 (A).

assessor had requested that he be released from his duties as an assessor in
order for him to accompany his only daughter, who was suffering from advanced
cancer, for medical treatment. Having considered that such a matter fell within the
purview of s147, the assessor was discharged on humanitarian grounds, with the
unanimous consent of the defence and the State. The trial continued before the
judge and the remaining assessor. At the end of the trial, some of the accused
were acquitted and six others were convicted and sentenced to death.

[15] On appeal, Grosskopf JA (writing for the majority), found that the desire of
the assessor to be with his daughter was motivated by practical and emotional
considerations. It was common cause that the concept ‘unable to act’ embraced
both physical and mental disability. Nevertheless this court said that it seemed
clear that the desire of an assessor to be discharged, however pressing his
reasons might be, would not amount to an ‘inability to act’. This court further
noted that however understandable the attitude of the trial judge was, the
discharge of the assessor was ‘not based on any opinion regarding the
[assessor’s] ability or “bekwaamheid” to carry on his duties as an assessor’.
Rather, continued the learned judge, this was a case where the assessor was
‘able’ but ‘unwilling to act’. The convictions and sentences were therefore set
aside. In the dissenting judgment, Steyn JA found that the assessor became
unable to act as such. In his view the assessor’s emotional state and his
daughter’s condition were inseparably linked, and that the assessor was and
would indefinitely have been unable to act as an assessor. He emphasised that
the assessor’s mind would be elsewhere, and his continued presence on the
bench would have been physically and juridically useless (or even harmful).

[16] However all the judges in Gqeba were agreed that ‘incapacity’ in s147
demanded that a judge find that an assessor cannot proceed as such. The

assessor’s incapacity may be physical or mental, possibly as a result of extended
or serious emotional stress. However, the assessor’s mere wish, irrespective of
how serious the motives may be does not constitute ‘incapacity’ within the
meaning of the subsection.3 Additionally, Grosskopf JA held with reference to the
principles enunciated in R v Price 1955 (1) SA 219 (A) at 223D,4 that, if in fact the
court convicting the accused was not properly constituted, this was an irregularity
that could not be waived. Grosskopf JA went further to say that the result reached
may be regarded as unsatisfactory, but could not be avoided since the correct
composition of the court was always a matter of importance.

S v Malindi
[17] In Malindi, the appellants were accused of treason; alternatively terrorism,
subversion, murder and furthering the objects of an unlawful organisation.
Approximately 17 months after the trial began, the trial judge made an order that
one of the assessors had become unable to continue acting as an assessor in the
case. He further directed that the trial continue with the remaining members. The
accused brought an application to have the trial quashed, inter alia, on the
grounds that the trial judge erroneously acted in terms of s147(1) of the CPA, by
ruling that the assessor was unable to act. Thus, so the argument went, the court
was no longer properly constituted. On appeal, this court considered the meaning

3 In A Kruger Hiemstra’s Criminal Procedure (Electronic version, 2019) at 21-12, the author states
in the commentary that ‘capacity or incapacity of the assessor must be determined objectively –
one is not here concerned with perceptions . . . “[i]ncapacity” means an actual inability to fulfil
functions, which inability can be attributed to an inherent physical or mental condition, or could
possibly also refer to a situation in which the assessor is physically prevented from attending the
trial. However, “incapacity” does not cover the situation where the assessor has simply lost
interest. . .’.
4 Prima facie when a decision is entrusted to a tribunal consisting of more than one person, every
member of that tribunal should take part in the decision. If the court is not properly constituted
then its verdict and consequently its sentence are irregularities that cannot be waived by an
accused person.

of the word ‘unable to act’ for the purpose of the power that s147(1) conferred on
judges. Corbett CJ said the following:
‘The word “unable”, in the context of s 147(1) conveys to my mind an actual inability to
perform the function of acting as an assessor. Such an inability could derive from an
inherent physical or mental condition or possibly also a situation which physically
prevented the assessor from attending the trial, such as for example indefinite detention
here or in a foreign country. I do not think, however, that the word “unable” is appropriate
to describe or comprehend the situation where an assessor becomes legally incompetent
to continue to act in a case because of some act or occurrence which warrants his
recusal. I am also doubtful whether the word “onbekwaam” even in the sense of
“ongeskik”, is wide enough to comprehend such a situation; but even if it is, it seems to
me, applying the principles enunciated in S v Moroney, that the ambit of s 147(1) should
be restricted to what is common in the meaning of “unable” and “onbekwaam”.’ (My
emphasis.)

[18] Before us counsel for the State conceded that Ms Solomons had
absconded. Nevertheless, he contended that her unwillingness to continue to act
as an assessor fell within the purview of s147 of the CPA, in that she was unable
to perform the functions of an assessor. In contrast, counsel for the appellants
contended that s147 was not applicable. Simply put, it was argued by the
appellants that Ms Solomons had absconded, and was unwilling to continue as
an assessor. By doing so, she denied the appellants their right to have the
evidence presented and considered by every member of the court, as constituted
when the trial commenced. This concluded the argument, was a fatal irregularity
which vitiated the trial.

[19] The Constitutional Court stressed the importance of the role of assessors
in S v Jaipal. Their role lies in their participation in judicial decision-making based

on their experience in the administration of justice or their skills in specific matters
which may have to be considered at the trial. Assessors have considerable power
and play an important role in the functioning of, as well as the legitimacy of
criminal courts. Their dignity, status and needs must be respected by all those
who interact with them in the performance of their judicial duties. At the same
time assessors must also be aware of the significance of their role and act
accordingly, in terms of the law.

[20] As alluded to above, the crux of this matter is whether Ms Solomons, who
having committed herself to act as an assessor in a criminal trial, and later found
herself in a precarious financial position because the trial had become protracted,
was ‘unable’ to continue as an assessor within the meaning of s147 of the CPA.

[21] Ms Solomons’ ability or inability to continue to act as an assessor must be
determined objectively. Having regard to the principles in Malindi and Gqeba
there must be an actual inability to perform the functions of an assessor. This
could be derived from an inherent physical impairment or a prolonged emotional
upheaval (mental condition). There were no objective facts before the learned
judge to suggest that Ms Solomons had become physically or mentally unable to
continue to act as an assessor as propounded in Gqeba and Malindi. Ms
Solomons freely elected to sign a contract of employment to act as a magistrate
in another court whilst she was committed to act as an assessor in the high court.
There was no expert evidence on the basis of which the learned judge could form
an opinion that Ms Solomons had become physically or mentally unable to carry
out her functions as an assessor.

[22] Ms Solomons’ desire was that she be released from the trial because of
the financial predicament she found herself in, due to the prolonged trial. To find
that she was unable to act within the meaning of s147 because she had become

financially impoverished, would be straining the language of the section beyond
what is contemplated by the Legislature. There must be objectively sound
reasons for an assessor to become ‘unable to act’. In Ms Solomons’ case her
financial impoverishment cannot amount to an objective inability to act as an
assessor in terms of s147 of the CPA. The ambit of the words ‘unable to act’ in s
147 does not envisage the case where an assessor is unwilling to continue as an
assessor due to financial hardship, as a result of a prolonged trial.

[23] The power vested in a trial judge to determine the inability of an assessor
to continue acting as an assessor must be narrowly construed. Objectively
adequate grounds for an inability must exist for a court to form the opinion that an
assessor is unable to continue as an assessor in the trial. The reasoning
underpinning the high court’s decision was that the interests of justice militated
against the trial being stopped and commencing de novo because it was not
possible to secure Ms Solomons’ presence. Since Ms Solomons was unwilling to
continue as an assessor, for the reasons articulated in her letter, the learned
judge reasoned that it was in the interests of justice to release her and continue
with the trial before the remaining members. In so doing the high court erred.

[24] The learned judge relied on three decisions for justifying that the
appellants’ trial proceed before the remaining members of the court. The first
case was S v Jeke 2012 JDR 1551 (GSJ)5 (per Mbha J, Sutherland J concurring).
This was an appeal from the Germiston Regional Court where the assessors,
who were drawn from the community as part of a pilot project, were released from
their duty as assessors because of their inability to continue. The reason being
that the Department had terminated the usage of assessors due to a depleted
budget. As a result of non-payment, the two assessors made it clear that they
would no longer be available to act as assessors. The magistrate found that the

5 S v Jeke [2012] ZAGPJHC 153; 2012 JDR 1551 JDR (GSJ); [2013] JOL 29983 (GSJ).

assessors were unable to continue as assessors in terms of s 93ter (1) and (11)
of the Magistrates’ Courts Act 32 of 1944. Mbha J agreed with the magistrate.

[25] The second case was S v Matakati & others [2007] ZAWCHC 328.6 In this
matter an assessor had indicated to the court that in view of the trial having
continued for longer than two years, which was more than he had predicted, his
income from his legal practice as an attorney was severely affected. Ndita J found
that the circumstances with which the court was confronted were precisely what
s147 of the CPA contemplated. Ndita J was of the view that an assessor who
lacked commitment to a trial is incapable of delivering justice to an accused, and
therefore unable to act as an assessor. Whilst acknowledging that there has been
consistency in judicial decisions that the word ‘unable’ relates to the assessors
physical and mental inability, her firm view (relying on S v Zuma 1995 (1) SACR
568 (CC)), was that s147 of the CPA includes eventualities such as inability on
the part of an assessor to deliver justice. She concluded that the assessor was
unable to continue with the trial.

[26] The third case that the learned judge in the high court relied upon was S v
Khumalo 2006 (9) BCLR 1117 (N).7 In that matter during a protracted trial one of
two assessors suffered a stroke. As a result, the assessor was unable to continue
as an assessor. The learned Judge President stated that it would not be in the
interests of justice that the case begin de novo.

Conclusion
[27] From an analysis of the above cases, relied upon by the high court, the
following appears: Jeke’s case dealt with a different statutory provision and is
distinguishable. Khumalo is similarly distinguishable. There the assessor suffered

6 S v Matakati & others [2007] ZAWCHC 2006 (9) BCLR 1117 (N);
7 S v Khumalo 2006 (9) BCLR 1117 (N).

a stroke and was for that reason unable to act. For the reasons mentioned in this
judgment, Matakati was wrongly decided. The high court appears to have paid
little regard to the decisions of this court in Gqeba and Malindi, both of which
were not only instructive but were directly on point, and by which she was bound.8

[28]  Clearly, the high court was faced with a dilemma whether to proceed with
the trial in Ms Solomons’ absence, or direct that the case starts de novo before
another court. The situation was untenable especially since Ms Solomons had
already absented herself indicating that she would not return. In these
circumstances, the exasperation of the trial judge is understandable.

[29] The law is now settled that an accused person is at all stages of the trial to
be tried by the court as constituted when the trial commenced, subject to the
exceptions authorised by s147 of the CPA. Any deviation from that enduring
principle can only have but one result that the proceedings are quashed.9

[30] Before I conclude this judgment, I am impelled to refer to the conduct of
Ms Solomons, which must be deprecated. This was a clear case of abscondment
and a dereliction of her duty as an assessor. Her conduct warrants a referral of
this judgment to the Magistrate’s Commission and the Legal Practice Council to
investigate whether her conduct falls short of the standard expected of an officer
of the court. To this end the registrar of this court will be directed to send a copy
of this judgment to the Magistrate’s Commission and the Legal Practice Council
for whatever appropriate action they may consider necessary against Ms
Solomons.

8 True Motives 84 (Pty) Ltd v Mahdi & another [2009] ZASCA 4; 2009 (4) SA 153 (SCA); 2009 7
BCLK 712 (SCA); [2009] 2 All SA 548 (SCA) para 100 cited with approval by the Constitutional
Court in Turnbull-Jackson v Hibiscus Coast Municipality 2014 (6) SA 592 (CC) para 55.

[31] In the result, the appeal must be upheld and both the convictions and
sentences set aside.

[32] The following order is made:
The appeals are upheld.
The convictions and sentences of all the appellants are set aside.
The registrar of this court is directed to send a copy of this judgment to the
Magistrate’s Commission and the Legal Practice Council.

______________
HK Saldulker
Judge of Appeal

9 S v Petersen & another 1998 (2) SACR 311 (C) at 312b-h; S v Gayiya [2016] ZASCA 65; 2016
(2) SACR 165 (SCA) para 6.

Appearances:
For First to Third Appellants

A Mia

Instructed by:

Legal Aid South Africa, Cape Town

Legal Aid South Africa, Bloemfontein

For Fourth to Sixth Appellants:

M Calitz
Instructed by:

Legal Aid South Africa, Cape Town

Legal Aid South Africa, Bloemfontein

For Respondent:

J C Ntela

Instructed by:
Director of Public Prosecutions, Cape
Town
Director of Public Prosecutions,
Bloemfontein