A man who has been in jail for more than eight years after being convicted of murder has had his conviction and sentence set aside by the Supreme Court of Appeal (SCA).

The court took this decision after it agreed with Edward Mntambo that when he was charged in court with murder, he was not afforded an opportunity — as provided for in law — to choose whether the magistrate should sit with or without assessors.

The SCA said this failure meant the court was not properly constituted and this was a fatal misdirection by the magistrate which annulled the proceedings.

It ordered the immediate release of Mntambo.

Mntambo was found guilty of murder by the Verulam regional court in September 2012 and sentenced to 15 years' imprisonment.

The regional court and the high court in Pietermaritzburg refused Mntambo leave to appeal in September 2012 and May 2013.

Mntambo was granted leave by the SCA to appeal against both the conviction and sentence in December 2016.

However, the appeal could not be heard for six years because his previous attorney provided inadequate service. Mntambo was also unable to raise funds after Legal Aid SA refused his application for legal assistance.

This 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 was reinstated.

In his appeal, Mntambo raised the challenge that there was non-compliance with a section in the Magistrates' Courts Act which states that when facing a murder charge, assessors must be appointed by the magistrate unless the accused waives such right.

In her judgment passed on Thursday, acting judge of appeal Sharise Weiner said until an SCA judgment in 2016, there were conflicting judgments in relation to the interpretation of this section.

In the 2016 case, the SCA held that the appointment of assessors was absolute and unconditional, unless the accused requested, prior to him pleading to a charge of murder, that the trial should proceed without assessors.

In the 2016 judgment, the SCA said the starting point was therefore for the regional magistrate to inform the accused, before the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless the accused requests that the trial proceed without assessors.

“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,” Weiner said in a judgment in which four other judges concurred.

The assessors in Mntambo's case were not appointed.

“This is a fatal misdirection which vitiates the proceedings,” Weiner said.

TimesLIVE