Brief Summary

Criminal Procedure — Fair trial — Remarks by magistrate — Accused charged with housebreaking and theft — Magistrate's comments during trial suggesting justification of police assault to obtain evidence — Conduct of magistrate creating perception of partiality and hostility — Accused denied fair trial as contemplated by s 35(3) of the Constitution — Conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were automatic review proceedings in the North Gauteng High Court, Pretoria, conducted in terms of the reviewing court’s statutory duty to consider whether criminal proceedings in the magistrates’ court were in accordance with justice.

The parties were the State and Patrick Mkhacani Mathebula (the accused in the court a quo). The matter originated in the magistrates’ court for the district of Malamulele (Limpopo Province), where the accused was tried, convicted, and sentenced.

The procedural history was that the accused was charged with housebreaking with intent to steal and theft, conducted his own defence, pleaded not guilty, and was convicted as charged. The magistrate imposed a sentence of three years’ imprisonment. The matter then served before the High Court on automatic review. During review, the reviewing judge directed an enquiry to the magistrate concerning certain remarks made during the proceedings and considered both the magistrate’s written response and a memorandum from the Director of Public Prosecutions.

The general subject-matter of the dispute on review was not the factual merits of the housebreaking allegation as such, but whether the manner in which the trial was conducted—particularly certain statements made by the presiding magistrate—meant that the accused did not receive a fair trial as required by the Constitution, thereby vitiating the proceedings.

2. Material Facts

The accused was charged with unlawfully breaking into and entering the complainant’s shop and stealing groceries and money to the alleged total value of R9 659. Before pleading, the magistrate informed the accused of his rights to legal representation, including the possibility of state-funded representation through the Legal Aid Board; the accused elected to represent himself. After pleading not guilty, the accused disclosed the basis of his defence under section 115 of the Criminal Procedure Act 51 of 1977, stating that he had no knowledge of the offence.

The State led the evidence of the complainant, who testified that around 10 November 2011 the shop had been broken into during the night by breaking the back wall, and groceries were stolen. The complainant could not state the value of the stolen items in his evidence, though he asserted he had provided a value when laying the complaint. It was common cause on the State’s version that the stolen property was returned to the complainant after the charge was laid, apparently following police recovery.

The State’s second witness, Warrant Officer Masia, testified that acting on information received, the police went to the accused’s kraal and found body lotion/cream in the house where the accused slept. According to this witness, the accused then led the police to a cooking hut at another kraal where the police found a 25 kg maize meal bag containing groceries and soap, as well as a small bag of maize meal and five litres of cooking oil. The complainant allegedly identified the recovered property as coming from his shop. The evidence indicated that not all items may have been recovered. The reviewing court recorded that the accused did not put in dispute the evidence that he had pointed out the goods recovered at the other kraal.

The accused testified in his own defence. He admitted having body lotion in his possession, but denied knowledge of the other items described by Warrant Officer Masia. In cross-examination he stated that he had signed a document at the police station without reading it because he had allegedly been assaulted and not permitted to read it. He denied having pointed out anything to the police, and difficulties arose regarding why he had not challenged the pointing-out evidence during the State case.

During the accused’s cross-examination, the magistrate made remarks referencing the accused’s attire, suggesting he was wearing a prison uniform and implying he was not appearing in court for the first time. The accused responded that his clothing was irrelevant to the charge.

In delivering judgment on the merits, the magistrate rejected the accused’s claim that the police had assaulted him as a concoction, but added remarks indicating that even if the accused had been assaulted, the police would have been justified in doing so to obtain information, and stated that otherwise “thugs” would be treated with “kid gloves.” After conviction, when previous convictions were put to the accused, he initially denied them and attributed this to a perception that the court had a grudge against him; after judicial prompting he admitted them but refused to sign the formal admission.

Before sentence, during an exchange with the accused, the magistrate stated words to the effect that if the accused were the magistrate’s child, the magistrate would kill him, and further conveyed to the accused that he was “about to be killed” and that this was a “sure case.” The magistrate then adjourned and, on the following day, sentenced the accused to three years’ imprisonment.

On review, the High Court directed an enquiry to the magistrate about these remarks. In a written response, the magistrate characterised the comments as aimed at preserving court decorum in a crowded courtroom and assuring the public and police that safety was being taken seriously, and denied that the remarks were intended to authorise violence or constitute incitement. The Director of Public Prosecutions, in turn, submitted that the comments created the impression that the magistrate condoned assaults to elicit evidence, and further identified additional irregularities (including partiality and hostility), proposing that the conviction and sentence be set aside and that the accused could be prosecuted afresh in the regional court.

3. Legal Issues

The central legal question was whether, for purposes of section 304(1) of the Criminal Procedure Act 51 of 1977, the proceedings in the magistrates’ court were in accordance with justice, given the magistrate’s remarks and conduct.

A closely related constitutional issue was whether the accused received a fair trial as guaranteed by section 35(3) of the Constitution, in circumstances where the presiding judicial officer (a) appeared to condone police assaults used to obtain evidence and (b) made statements that could reasonably be understood as holding out that the accused’s killing would be justified or expected.

The dispute before the reviewing court primarily concerned the application of constitutional and statutory fair-trial standards to the facts (including an evaluative assessment of the effect of the magistrate’s remarks on trial fairness), rather than the correctness of factual findings on the elements of the substantive offence.

A further issue was the appropriate remedial course if the trial was found to be unfair, including whether the conviction and sentence should be set aside and whether the State could, if it chose, prosecute afresh in the regional court pursuant to sections 313 and 324 of the Criminal Procedure Act.

4. Court’s Reasoning

The reviewing court approached the matter through the statutory lens of section 304(1) of the Criminal Procedure Act, emphasising that the review enquiry is whether the proceedings were in accordance with justice. The court’s focus was on the constitutional requirement of a fair trial under section 35(3) of the Constitution, and on the role of the presiding officer in upholding constitutional values and rights.

In relation to the magistrate’s remarks about police assault, the reviewing court agreed with the Director of Public Prosecutions that the statement created the impression that assaults on accused persons are justified where the purpose is to extract information for use in court. The reviewing court went further, finding that—particularly given the magistrate’s later explanation that the courtroom was crowded with members of the public and police—the remark was plainly intended to communicate to police that such assaults were condoned and encouraged.

In assessing the remarks about the accused being killed, the reviewing court considered the magistrate’s explanation that the comments were meant to safeguard decorum and reassure the public. The court nevertheless concluded that, on the language used, the magistrate held out to those present in court that killing the accused would be justified and that the magistrate expected the accused to be killed soon. The reviewing court reasoned that the magistrate must have foreseen the reasonable possibility that such remarks could be understood as a licence, purportedly backed by legal authority, to kill the accused.

The reviewing court located these concerns within the broader constitutional and institutional duties of judicial officers. It referred to the judicial oath/affirmation required of magistrates under section 9(2)(a) of the Magistrates’ Courts Act 32 of 1944, taken in open court under section 9(2)(b), which requires the administration of justice “without fear, favour or prejudice” and with fidelity to the Constitution and the human rights entrenched in it. The court further referred to the comparable constitutional oath applicable to judges under section 174(8) read with item 6 of Schedule 2 of the Constitution, illustrating the constitutional centrality of judicial fidelity to rights and the rule of law.

The court held that the Constitution is not upheld where a judicial officer encourages unlawful violence by police or incites the community to murder an accused. The reviewing court identified the magistrate’s utterances as violating at least the accused’s right under section 12(1)(c) to be free from all forms of violence and threatening the accused’s right to life under section 11. In relation to the magistrate’s stated approval of violence to obtain information, the court held that this stance overlooked or ignored the constitutional rule in section 35(5) requiring the exclusion of unconstitutionally obtained evidence where admission would render a trial unfair or be detrimental to the administration of justice.

In articulating the fair-trial standard, the reviewing court stressed that fairness requires a presiding officer who respects, protects, promotes, and fulfils rights, and whose conduct demonstrates adherence to the supremacy of the Constitution and the rule of law, as required by sections 7(2) and 1(c) of the Constitution. In this context, the court cited S v Thebus and Another [2003] ZACC 12; 2003 6 SA 505 (CC) (at paragraph 109 per Yacoob J) for the proposition that these constitutional values are fundamental to fair-trial adjudication.

Although the Director of Public Prosecutions also identified additional serious irregularities (including conduct creating a perception of partiality and hostility), the reviewing court considered it necessary only to engage further with the two categories of remarks that had formed the subject of the review enquiry. The court concluded that the magistrate’s conduct constituted a gross departure from the standards required of a judicial officer presiding at a criminal trial.

On that basis, the reviewing court held that the correctness of the conviction on the evidence and the appropriateness of the sentence were not determinative, because the proceedings were vitiated by the absence of a fair trial. The remedy selected was to set aside the conviction and sentence, while permitting the State, if it chose, to prosecute the accused afresh in the regional court in terms of sections 313 and 324 of the Criminal Procedure Act. The court also directed that the judgment be transmitted to the Magistrates Commission for such steps as it deemed fit.

5. Outcome and Relief

The High Court set aside the accused’s conviction and sentence in their entirety.

The court declared that, if the State so decides, the accused may be prosecuted afresh in the regional court on the same charge pursuant to section 313 read with section 324 of the Criminal Procedure Act 51 of 1977.

The court further ordered that nothing in the order entitled the accused to be released from prison if he was being held pursuant to any other sentence or sentences imposed in other criminal proceedings.

The Registrar was directed to send a copy of the judgment to the Magistrates Commission and to request it to take such steps as it considered fit. No costs order was made.

Cases Cited

S v Thebus and Another [2003] ZACC 12; 2003 6 SA 505 (CC).

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 115, 304(1), 313, 324).

Constitution of the Republic of South Africa, 1996 (sections 1(c), 7(2), 11, 12(1)(c), 35(3), 35(5), 174(8) and item 6 of Schedule 2).

Magistrates’ Courts Act 32 of 1944 (sections 9(2)(a), 9(2)(b)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The reviewing court held that the accused did not receive a fair trial as contemplated by section 35(3) of the Constitution, because the presiding magistrate’s remarks conveyed that police assaults to obtain information were justified and conveyed that the accused’s killing would be justified or expected. These statements, viewed in context, were inconsistent with the constitutional obligations of a judicial officer and undermined the constitutional and legal standards required for criminal adjudication.

As a result, the proceedings were not in accordance with justice under section 304(1) of the Criminal Procedure Act, and the conviction and sentence were set aside. The State was permitted, if it chose, to prosecute the accused afresh in the regional court under sections 313 and 324 of the Criminal Procedure Act, and the matter was referred to the Magistrates Commission for consideration.

LEGAL PRINCIPLES

A reviewing court exercising automatic review jurisdiction under section 304(1) of the Criminal Procedure Act 51 of 1977 must determine whether the proceedings in the magistrates’ court were in accordance with justice, which includes assessing whether the accused received a fair trial as guaranteed by section 35(3) of the Constitution.

A fair trial requires that the presiding judicial officer respects, protects, promotes, and fulfils the rights in the Bill of Rights, and demonstrates adherence to the constitutional values of supremacy of the Constitution and the rule of law (Constitution sections 7(2) and 1(c)), as recognised in S v Thebus and Another [2003] ZACC 12; 2003 6 SA 505 (CC).

Judicial officers are bound by their constitutional and statutory oaths (including section 9(2)(a) of the Magistrates’ Courts Act 32 of 1944) to administer justice without fear, favour, or prejudice and to uphold constitutional rights. Conduct by a presiding officer that condones unlawful violence by police, encourages rights violations, or suggests that extrajudicial killing of an accused could be justified is incompatible with those obligations and undermines trial fairness.

The Constitution requires, under section 35(5), that evidence obtained in violation of constitutional rights must be excluded where its admission would render the trial unfair or otherwise be detrimental to the administration of justice; a presiding officer’s endorsement of violence to obtain evidence is inconsistent with this standard.

Where a trial is rendered unfair by the conduct of the presiding officer, the correctness of the conviction on the merits may be treated as immaterial to the review outcome, and the conviction and sentence may be set aside. In appropriate circumstances the State may be permitted to prosecute afresh pursuant to section 313 read with section 324 of the Criminal Procedure Act.

S v Mathebula (A550/2012) [2012] ZAGPPHC 150 (3 August 2012)