The North West High Court has ordered the immediate release of two men who were sentenced for murder after the magistrate who presided over their matter flunked proceedings.
John Khakha and Tshepo Khakha were charged with murder and sentenced to 20 years imprisonment each. Their matter was heard in the Stilfontein Regional Court.
After their sentence, they applied for leave to appeal in the same court and their attempts were turned down and they turned to the high court.
In their appeal, they stated that during the trial, the magistrate did not comply with the provisions of Section 93 of the Magistrates’ Court Act.
The section states that any judicial officer at any trial before evidence is led should appoint an assessor to assist during the trial.
However, during their trial, no assessor was appointed.
The high court heard a record where the magistrate asked: “Ekskuus tog Mev, Mohammed sonder assessore die vehoor?”
"Excuse me Mrs, Muhammad the trial (is) without assessors?”
Mohammed replied: “...Furthermore your worship I confirm that the trial proceed without assessors.”
Their legal representative argued that on the records provided, there was nothing which proved that the accused were aware of their rights regarding having assessors in the trial.
Moreover, there was no record stating that they had agreed to continue without an assessor.
It was further argued that they could not have requested to proceed without assessors and this constitutes an irregularity which vitiates the proceedings.
In addition, it was said that the magistrate failed to establish whether the accused were aware of the provisions of Section 93.
“His question to Ms Mohammed was intended for Ms Mohammed to rubber-stamp a decision already reached by the court,” their advocate argued.
In response, the State said the accused were legally represented and it was not necessary for the magistrate to explain each and every single constitutional right.
“The fact that the court did not enquire directly from the legally represented accused on whether the trial was to proceed with or without assessors, cannot qualify as an irregularity and it does not vitiate the proceedings,” argued the State.
Judge Ronald Hendricks who presided over the matter, said he was of the view that the magistrate did not conduct a fact-based enquiry to establish whether the accused knew about Section 93.
There was also no record proving that they were asked whether they wanted the trial to continue without assessors.
“It was not sufficient for the regional magistrate to merely ask the legal representative in the manner that he did... I am of the view that there was no proper enquiry held to determine whether the appellants were appraised of their rights in terms of Section 93,” said the judge.
The judge said it was totally insufficient for the magistrate to merely ask the legal representative whether the trial had an assessor.
“I am of the view that because of the fatal irregularity committed by the trial court, which vitiates the whole proceedings, the convictions and sentences imposed on both the appellants must be set aside,” he said.
The judge ordered that the men should be released immediately.
IOL News