A high court assessor who was booked off sick during a kidnapping and triple-murder trial and allegedly never returned to work has been referred to the Magistrate’s Commission and the Legal Practice Council for action. Sylvia Solomons’s alleged abscondment and dereliction of duty were slated in the Supreme Court of Appeal (SCA), which also set aside the convictions and sentences of six people who stood trial for a vigilante-style attack in Harare, Khayelitsha.Solomons was one of two assessors helping Judge Nolwazi Boqwana in the 2014 Western Cape High Court trial in which Mziwabantu Mncwengi, Mzimasi Mncwengi, Buyelwa Mncwengi, Lumko Bambalaza, Xolani Makapela and Mawande Siboma each faced three counts of kidnapping and three of murder.At the time the case involving the murders of Sivuyile Rola, Luxolo Mpontshane and Mabhuti Matinise was described by the high court as a “ sad and unfortunate case of vengeance” involving Mziwabantu Mncwengi’s stolen TV.According to the SCA, seven months into the trial and 22 witness testimonies later, Solomons’s doctor had contacted Judge Boqwana, stating that she had been booked off sick for acute anxiety disorder.
The case was then adjourned.Prior to her being booked off, Solomons had let the judge know that she had been offered a position to act as a magistrate in Upington, and asked to be released from her obligations as an assessor in the trial.The judge declined the request. Days went by during which the court’s registrar attempted to make contact with Solomons using the telephone number she had provided. However, she was unreachable, the SCA judgment read.She was then contacted at the Upington Magistrate’s Court, and was requested to submit a written explanation for her conduct.In the letter, Solomons said the duration of the trial had “far exceeded allocated estimated time”, and that this had severely compromised her financial position.She said her practice was not generating income because of her extended absence. “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,” an extract of Solomons’s letter read.She advised the high court that she had signed her contract for her appointment in Upington.Her absence from the trial was argued extensively, and after hearing submissions from both the defence and the state, the high court ruled that provisions of the Criminal Procedure Act were applicable and it directed that the trial proceed before the remaining members of the court.
n November 2014, the six accused were all convicted on three counts of murder and kidnapping, and one count of assault with intent to do grievous bodily harm. In March 2015, they were each sentenced to various prison terms, which culminated in an effective sentence of 18 years’ imprisonment for each. In June 2015, they applied for leave to appeal against their convictions and sentences, which was refused. But leave to appeal was granted relating to whether the trial should have continued or started afresh after Solomons’s alleged abscondment. SCA Judge Halima Saldulker said she understood Boqwana’s frustration, and found an accused person should be tried by the court as constituted when the trial commenced. “I am impelled to refer to the conduct of Ms Solomons, which must be deprecated. This was a clear case of abscondment and 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 Legal Practice Council for whatever appropriate action they may consider necessary against Ms Solomons,” Judge Saldulker said. She set aside the convictions and sentences of the six accused. While Solomons could not be reached for comment yesterday, Legal Practice Council spokesperson Sthembiso Mnisi said the council would study the judgment. “The council has noted the judgment of the SCA and will study it first before making any pronouncements on the appropriate action they may consider,” Mnisi said. Emails and calls to the Magistrate’s Commission went unanswered yesterday.
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