- Chala and Others v Director of Public Prosecutions (DPP), KwaZulu-Natal and Another 2015 (2) SACR 283 (KZP)
The proviso (Afrikaans: “voorbehoud”) to section 93ter(1) of the Magistrates’ Court Act 32 of 1944 provides as follows:
“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 by Pollex.)
In the matter under discussion, Mr Chala and other accused persons (hereinafter collectively referred to as the applicants) were standing trial before the regional court in Verulam, KwaZulu-Natal (KZN), charged with the crime of murder, as well as two counts of attempted murder.
In considering the review, the review court referred to numerous relevant case law. In particular, the review court referred to the KZN case of S v Naicker 2008 (2) SACR 54 (NPD) wherein it was held that although non-compliance with the peremptory (Afrikaans: “gebiedende”) terms of section 93ter (1), amounts to an irregularity, it does not necessarily follow that it amounts to a failure of justice, and an assessment is nevertheless required to discover the impact of the irregularity on the integrity of the proceedings.
However, the review court also referred to another KZN case, namely S v Samigan case No AR 685/2003, 30 June 2005, unreported (NPD). In this case the KZN High Court held that a failure to comply with the peremptory provisions of section 93ter(1) of Act 32 of 1944 constituted “so fundamental an irregularity that the convictions of [Samigan] on the various counts, cannot stand”.
Accordingly, in the light of all the case law referred to by the review court, it came to the conclusion that Naicker supra was clearly wrong and that Samigan supra was correct. See paragraph  of the judgment under discussion, namely Chala v DPP.