Brief Summary

Criminal Procedure — Review application — Conviction and sentence for rape and robbery — Applicant contended that the presiding magistrate's conduct during trial constituted bias and irregularity, infringing his right to a fair trial — Court held that the magistrate's questioning and comments exceeded reasonable limits, indicating bias and prejudicial conduct, thus vitiating the trial proceedings and warranting the review and setting aside of the conviction and sentence.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was a review application in the High Court of South Africa (North Gauteng High Court, Pretoria) directed against the applicant’s conviction and sentence imposed by the regional court at Sebokeng. The review was sought on the basis of alleged irregular conduct by the presiding regional magistrate during the criminal trial proceedings.

The applicant was Kenneth Mapule Makau. The first respondent was the regional magistrate (Mr M. K. Makhwentla) who presided in the court a quo, and the second respondent was the Director of Public Prosecutions, Pretoria.

Procedurally, the applicant had been tried in the regional court and convicted of rape (read with the minimum sentence provisions in section 51 of the relevant statute referred to in the judgment) and robbery with aggravating circumstances. He was sentenced to 16 years’ imprisonment for rape and four years’ imprisonment for robbery. He was legally represented throughout the trial. Following conviction and sentence, he approached the High Court on review, seeking to have the proceedings reviewed and set aside, contending that the magistrate’s conduct infringed his constitutional right to a fair trial.

The dispute in the review centred on the manner and content of the presiding officer’s questioning and remarks during the trial, and whether that conduct created an appearance (or reality) of bias that vitiated the fairness of the proceedings and justified setting aside the convictions.

2. Material Facts

The applicant was originally charged with three counts arising from events of 28 October 2007, namely rape more than once, indecent assault (alleged anal penetration), and robbery with aggravating circumstances. During the proceedings, the presiding officer drew attention to a defect in the charge relating to indecent assault and, with reference to the Constitutional Court’s decision in Masiya v Director of Public Prosecutions, Pretoria and Another 2007 (2) SACR 435 (CC), invoked section 86 of the Criminal Procedure Act 51 of 1977 to order an amendment of the charge sheet.

After amendment, the matter proceeded on two counts, namely rape and robbery with aggravating circumstances. The record reflected no objection to the amendment. The applicant pleaded not guilty to both counts.

The State led evidence from four witnesses. The complainant testified that after a party, she was grabbed from behind by the applicant who held a knife, dragged her into a yard, and forcibly had vaginal, anal, and oral sex with her. She testified that the applicant then took her cellphone, watch, and earrings. A friend of the complainant testified that the complainant reported the rape and robbery on returning to the party; the friend described her as crying, shocked, shaking, and with muddy clothing. A further witness (the applicant’s cousin) testified that the applicant offered him a watch as collateral for money, which was later identified by the complainant and recovered by police. Another witness testified that he purchased the complainant’s cellphone from the applicant for R350, which was later identified and recovered.

The applicant testified in his own defence and presented a version of consensual sexual intercourse. He stated that the complainant asked for a place to sleep, that they went to an unlocked shack, undressed, slept on a mattress with blankets, and had consensual vaginal, anal, and oral intercourse. He denied using a knife. He asserted that the complainant handed him her cellphone and allowed him to take her watch, and that he later sold the cellphone.

The review was not directed primarily at resolving the competing versions on the merits, but at specific conduct by the presiding officer. During the applicant’s testimony (and also during the fourth State witness’s testimony), the magistrate asked questions and made remarks that were recorded, including comments that the reviewing court later characterised as reflecting strong disapproval and personal moral judgment. The applicant relied on these questions and remarks to argue that the magistrate descended into the arena, displayed bias, and thereby deprived him of a fair trial.

It was not materially disputed in the review proceedings that the questions and remarks were indeed made as reflected in the record. The critical dispute concerned the legal character and effect of that conduct, namely whether it exceeded permissible judicial questioning and whether it justified setting aside the convictions.

3. Legal Issues

The central questions were whether the presiding officer’s questions and remarks during the criminal trial constituted an irregularity, and if so, whether that irregularity resulted in a failure of justice requiring intervention on review.

More specifically, the High Court was required to determine whether the magistrate exceeded the reasonable limits of judicial questioning, in a manner that compromised (or created the appearance of compromising) the requirements that a judicial officer remain open-minded, impartial, and fair, and whether such conduct infringed the applicant’s asserted right to a fair trial.

The dispute accordingly concerned the application of legal standards governing judicial conduct to the recorded trial proceedings. It was not a pure question of fact (the content of the remarks appeared from the record), nor a pure question of law in the abstract, but an evaluative determination of whether the conduct crossed the line into reviewable irregularity and whether public policy and fairness required the convictions to be set aside.

4. Court’s Reasoning

The High Court approached the matter by identifying the governing principles on judicial questioning and impartiality, relying in particular on S v Rail 1982 (1) SA 828 (A). The court emphasised the difficulty and undesirability of defining rigid limits, but adopted the broad limitations stated in that authority: a presiding officer must conduct the trial in a manner that manifests open-mindedness, impartiality, and fairness; must avoid questioning that, by its frequency, length, timing, form, tone, or content, conveys the opposite impression; must avoid involvement that compromises the ability to adjudicate objectively; and must avoid questioning that intimidates or influences a witness or accused in a manner affecting demeanour or credibility.

The court accepted that transgression of those limitations may constitute an irregularity, and that whether appellate intervention is warranted depends on whether the irregularity caused prejudice or a failure of justice, or whether intervention is required as a matter of public policy. In this regard, the court referenced the principle endorsed in R v Hepworth 1928 AD 265, namely that justice must not only be done but must also be seen to be done.

On the facts of the case, the court evaluated the content and tone of the questions and remarks directed at the applicant during his testimony. The court considered that the applicant’s admitted description of sexual acts (as part of his consensual-sex version) appeared to have seriously offended the magistrate’s personal morals, values, and standards. While the court acknowledged that ordinary members of the public might be uneasy about the conduct described, it stressed that a judicial officer is not an ordinary member of the public and is obliged to administer justice impartially and without fear, favour or prejudice. The court held that there was no place for the imposition of personal moral views upon witnesses and accused persons in the conduct of a trial.

In the reviewing court’s assessment, the presiding officer’s questions and comments clearly and far exceeded the permissible limits for judicial questioning. However, the court drew a distinction between (a) the inference that the magistrate actually prejudged the case and (b) the appearance created by the magistrate’s conduct. After reading the regional court’s judgment on the merits, the reviewing judge stated that he could find no direct finding related to the offensive questions and comments, and considered the judgment on the merits to be well reasoned and motivated, giving as an example the reasoning concerning the complainant’s muddy clothes in relation to the applicant’s version.

Despite this, the court concluded that the offending questions and remarks would obviously have created an impression to those present (including the applicant) that the magistrate was prejudiced and had prejudged the case. Applying the principle that justice must be seen to be done, the court held that the conduct constituted an irregularity in the proceedings, and that public policy required the High Court to intervene.

A concurring judgment by Mavundla J agreed with the order and added observations focused on the obligation of courts to respect the dignity of persons who appear before them (the judgment referenced the Constitution in this context). The concurring judge criticised the language used by the magistrate, stressed the need for decorum flowing from the bench, and accepted that while presiding officers may ask questions to clarify ambiguity, they must do so in a manner consistent with the court’s decorum and respect for litigants. The concurring judgment further expressed the view that, but for the magistrate’s diction, the conviction would have been confirmed, and recommended that the judgment be brought to the attention of the magistrate.

5. Outcome and Relief

The High Court set aside the applicant’s convictions on both counts, namely rape and robbery with aggravating circumstances. It substituted the convictions with an order that the accused is found not guilty and discharged.

No separate order as to costs was recorded in the judgment. The concurring judgment included a recommendation (not framed as operative relief) that the judgment be brought to the attention of the magistrate concerned.

Cases Cited

Masiya v Director of Public Prosecutions, Pretoria and Another 2007 (2) SACR 435 (CC).

S v Rail 1982 (1) SA 828 (A).

R v Hepworth 1928 AD 265.

S v Owies and Another 2009 (2) SACR 107.

R v Khumalo 1947 (4) SA 156 (N).

Legislation Cited

Constitution of the Republic of South Africa Act 108 of 1996 (as referenced in the judgment in relation to dignity, with a footnoted reference to section 9).

Criminal Procedure Act 51 of 1977, section 86.

Criminal Law Amendment Act 105 of 1997, section 51 (as referred to in relation to rape and robbery with aggravating circumstances).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the presiding regional magistrate’s questioning and remarks during the trial exceeded the acceptable limits of judicial questioning and constituted a reviewable irregularity. Even though the reviewing court did not infer that the magistrate’s final judgment on the merits was in fact prejudiced, the conduct created an impression that the magistrate was biased or had prejudged the case, undermining the requirement that justice be seen to be done.

On that basis, the court held that public policy required intervention. The applicant’s convictions on rape and robbery were accordingly set aside and replaced with an acquittal and discharge.

LEGAL PRINCIPLES

A presiding officer may question witnesses and an accused to clarify uncertainties, but must do so within limits that preserve the appearance and reality of open-mindedness, impartiality, and fairness, and must avoid interventions whose frequency, length, timing, tone, or content conveys bias or compromises objective adjudication, or intimidates or unduly influences testimony.

Serious transgression of the limits on judicial questioning may constitute an irregularity; whether relief follows depends on whether the irregularity resulted in a failure of justice, prejudice to the accused, or whether intervention is required in the interests of public policy.

The administration of justice requires not only that justice be done, but that it be seen to be done; an appearance of bias or prejudgment generated by the presiding officer’s conduct can justify setting aside convictions even where the merits judgment appears reasoned.

A charge may be amended before judgment under section 86 of the Criminal Procedure Act 51 of 1977 where defective, provided the amendment will not prejudice the accused in the conduct of the defence; once amended, the trial proceeds on the charge as amended.

Judicial officers are required to maintain decorum in court proceedings and to treat those who appear before court with appropriate respect; disparaging language from the bench is inconsistent with proper judicial conduct and may taint proceedings.

Makau v Makhwentla and Another (A123/2009) [2010] ZAGPPHC 42 (11 May 2010)