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Durban man's conviction set aside after serving nearly 20 years in jail

By Faeza
04 May 2017

After almost 20 years behind bars, Lucky Shange will walk out of prison a free man on Thursday morning after the Supreme Court of Appeal (SCA) ruled that he had been wrongfully convicted.

While the court made its ruling on a technicality - that the Durban regional court magistrate who convicted him initially had not sat with assessors - Shange has always protested his innocence, his attorney Zimani Ncama said.

Ncama, a Durban attorney who specialises in criminal appeals, met Shange for the first time three years ago.

Shange had first been arrested in 1998 and kept in custody until he was convicted of murder, robbery and possession of an unlicensed firearm in 2000.

The charges related to the murder of a taxi boss in Montclair.

“The taxi was found outside Shange’s house. He was only 18 at the time.

Confession

“Members of the taxi association found him in town. They told him to choose between dying or pleading guilty,” Ncama said.

“He told police he did it but then, at court, he pleaded not guilty. But based on his confession, he was convicted and sentenced to life imprisonment.”

Ncama said Shange, like many poor people, battled to get justice.

“He has been trying to persuade the court since his conviction that he was wrongfully convicted.

“We took the case on appeal in Pietermaritzburg first but it was refused. We had to petition the SCA. I had to drive to Bloemfontein on Monday because there was no money to fly.

“We appeared before five judges and they ordered his immediate release.”

Ncama said his client was now “about my age, 40”.

He was heading to the prison on Thursday morning with the documentation from the court and expected his client would be released before lunchtime.

SCA ruling

The SCA, in its ruling, said the State had properly conceded the point raised that the trial magistrate had not sat with assessors and accepted that the convictions and sentences should be set aside.

In terms of the Magistrate's Court Act, assessors have to be appointed to hear murder cases in regional courts unless the accused requests otherwise.

“In this matter, the appellant was not legally represented throughout the trial. And there is nothing on the record to suggest that he was ever made aware of the requirement that the regional magistrate sit with assessors or of his right to choose whether assessors assist with the trial. The regional magistrate nowhere recorded that he had made such a request.

“The appellant’s co-accused was legally represented but there is nothing to show that he was given any choice either. And the transcription of the trial and appearance pages state nowhere that she had sat with assessors.

The State does not suggest that the section was not complied with. The requirement that a judicial officer sit with assessors is peremptory.

“Accordingly the court was not properly constituted,” the court ruled.

Source: News24