Summary of Judgment

Introduction

This was a High Court review of criminal proceedings conducted in the Magistrates’ Court, Bloemfontein. The matter came before the Orange Free State Provincial Division (Free State High Court, Bloemfontein) as a review in which the reviewing court was not satisfied that the proceedings in the magistrates’ court were in accordance with justice and consequently sought reasons from the presiding magistrate.

The parties were the State as prosecutor and Selloane Agnes Kgomotsana as the accused person. The accused had been tried and convicted in the magistrates’ court on charges of housebreaking with intent to do grievous bodily harm and assault with intent to do grievous bodily harm.

The procedural history reflected that the accused was convicted as charged on 31 January 2008 and sentenced to nine months’ imprisonment, of which five months were suspended for four years on specified conditions. She was also declared unfit to possess a firearm. The review court queried the correctness of both the conviction and sentence, and the magistrate furnished reasons in response.

The general subject-matter of the dispute concerned whether the accused had received a fair criminal trial, with particular attention to the quality and reliability of the State’s evidence, the handling of contradictions and injuries, and (centrally) whether the presiding magistrate properly discharged the duty to assist an unrepresented accused in cross-examination and maintained appropriate impartiality and courtesy.

Material Facts

The State’s case, as relied upon by the reviewing court, was characterised as muddled, attributed to the poor quality of the record and different versions given by the complainant at different stages of her testimony (including differences between her evidence-in-chief and what emerged under questioning by the court).

In essence, the complainant alleged that on the night of 21 April 2008 she was at home when the accused forced entry into her home and stabbed her with a broken piece of bottle, said initially to have caused a cut on her knee. The complainant’s account of the injuries later shifted, as she told the court she sustained three open wounds on her right leg. No medical report was produced; the complainant did not obtain medical attention from a doctor or hospital.

The complainant’s knowledge of the accused was also not consistently presented. She initially denied knowing the accused before the incident, but later admitted that both she and the accused were involved in a love relationship with a person referred to as “Thobela”. It further emerged that the accused had confronted the complainant earlier that day, and that Thobela was present or nearby at the time when the stabbing was alleged to have occurred.

The complainant’s son testified for the State and supported the allegation that the accused stabbed the complainant with a broken piece of bottle on her leg at their home.

The defence version (supported by the accused and by Thobela) was that the accused did not stab the complainant. The accused maintained that the complainant was cut by a fence while jumping over it to Thobela’s home when Thobela was chasing her and threatening her with a stick. The accused also alleged that the complainant had thrown stones at her while the accused was in Thobela’s company. Thobela corroborated the defence in material respects, including that the complainant threw stone(s), that he chased the complainant with a stick, and that the complainant probably cut herself when she jumped over the fence while fleeing.

The reviewing court treated as established that the accused and the complainant met on the day in question, but noted that different versions then emerged regarding what followed. A further material factual feature for the reviewing court was that the magistrate engaged in extensive questioning aimed at identifying and clarifying the complainant’s injuries, during which the magistrate struggled to discern the relevant injury among multiple scars, and in the course of which new information was elicited. After this questioning, neither the State nor the accused asked follow-up questions, despite the magistrate’s questioning having raised matters not previously addressed in the State’s examination.

Legal Issues

The central legal questions the reviewing court was required to determine were whether the proceedings in the magistrates’ court were in accordance with justice, and in particular whether there had been a gross irregularity resulting in a failure of justice such that the conviction and sentence could not stand.

A key issue concerned the fair-trial implications of the accused’s limited and ineffective cross-examination and whether the magistrate had properly assisted an unrepresented accused to understand and exercise the right to cross-examination, including the need to put her version to State witnesses and the consequences of failing to do so. This issue was not merely factual; it concerned the application of legal standards of procedural fairness to the conduct of the trial record as a whole.

A further issue was whether the presiding magistrate maintained the required impartiality, open-mindedness, and courtesy in managing the trial and questioning witnesses, and whether any departure from those standards contributed to an unfair trial and failure of justice.

While the judgment also referenced the general criminal-law standard of proof, the decisive questions on review were primarily procedural and evaluative, focused on whether the trial process met the threshold of fairness rather than a full merits reassessment of the evidence.

Court’s Reasoning

The reviewing court reiterated the established principle that in criminal trials the State bears the onus to prove guilt beyond reasonable doubt, while an accused is only required to provide an explanation that is reasonably possibly true. The reviewing court referred to the approach described in S v Chabalala 2003 (1) SACR 134 (SCA) and S v V 2000 (1) SACR 453 (SCA), emphasising that the proper inquiry is not whether the court believes the accused, but whether, on the totality of probabilities and improbabilities, guilt is proved beyond reasonable doubt.

Against that framework, the reviewing court observed that the State’s evidential presentation was materially weakened by the complainant’s shifting descriptions of her injuries and the absence of a medical report. The reviewing court highlighted that the State did not prove that the complainant sustained injuries congruent with being stabbed by a broken bottle, and that the complainant’s description was initially framed as a cut rather than clearly as multiple stab wounds.

The reviewing court then focused on the manner in which the trial was conducted, particularly the magistrate’s role in questioning. It noted that the magistrate’s questioning elicited new evidence about injuries, yet the accused (who was unrepresented) was not assisted to engage with these newly raised matters through cross-examination. The reviewing court regarded it as significant that after the magistrate’s questioning neither party asked further questions, notwithstanding that the court itself had introduced fresh detail.

A substantial part of the reasoning addressed the duty of a presiding officer to assist an unrepresented accused in effectively conducting cross-examination. The reviewing court referred to S v Govela 1987 (4) SA 297 (O) and emphasised that, throughout cross-examination, the accused had not been assisted to put relevant questions or to put her version to witnesses in a concise and meaningful way. The reviewing court also noted that when the accused attempted to put her version to the complainant’s son after asking only a single question, she was stopped, and her response reflected an inability to proceed effectively.

The reviewing court considered it problematic that the magistrate later criticised the accused’s failure to cross-examine on material issues, despite the lack of guidance and assistance during the trial itself. In this regard, the reviewing court relied on the approach articulated by the Full Bench in S v Sebatana 1983 (1) SA 809 (O), which recognised that untutored accused persons may fail to cross-examine effectively due to ignorance of the purpose and nature of cross-examination, and that presiding officers have a duty to assist by clarifying whether the accused disputes each material allegation and, where necessary, putting the relevant challenges to the witness. The reviewing court also cited S v Khambule 1991 (2) SACR 277 (W) and S v Modiba 1991 (2) SACR 286 (T) in support of this duty to assist.

Applying these principles to the record, the reviewing court concluded that the magistrate ought to have advised the accused to put her version to witnesses, or at least those portions relevant to each witness’s evidence, and that it would have been advisable to ask the accused directly whether she agreed with the material allegations made against her. The failure to do so, combined with later criticism of the accused’s cross-examination, was treated as a serious procedural defect.

The reviewing court ultimately characterised the magistrate’s conduct as a gross irregularity resulting in the accused not having had a fair trial, and therefore amounting to a failure of justice. On this basis alone, the reviewing court held that the conviction could not stand and that the proceedings should be vitiated.

Because the conviction was set aside on procedural grounds, the reviewing court held that it was unnecessary to analyse the sentence in detail, and that the sentence would automatically fall away with the conviction. It nevertheless referenced S v Lekgetho 2002 (2) SACR 13 (O) to illustrate the importance of appropriate judicial engagement with an accused during trial processes.

The reviewing court also addressed the broader issue of impartiality and courtesy by a presiding officer. It observed that the manner in which the magistrate addressed the accused and, to some extent, the complainant lacked impartiality and courtesy. The reviewing court underscored that a presiding officer must be absolutely fair to both sides, and it linked this to the right to equality before the law and equal protection of the law as referenced in section 8 of the Constitution. The reviewing court cited S v Abrahams and Another 1989 (2) SA 668 (E) for the proposition that courteous treatment is part of ensuring that justice is seen to be done, and relied on S v Mabuza 1991 (1) SACR 636 (O) for the standards applicable to judicial questioning, including avoiding conduct that undermines perceived impartiality, avoiding entering the “arena”, avoiding intimidation or upsetting of witnesses or accused, and ensuring fairness and open-mindedness are manifest. The reviewing court found that these standards had not been upheld.

Outcome and Relief

The High Court set aside both the conviction and the sentence imposed by the magistrates’ court.

The order was that the accused’s conviction and sentence are set aside. No separate costs order was made (consistent with criminal review proceedings as reflected in the judgment).

Cases Cited

S v Chabalala 2003 (1) SACR 134 (SCA)

S v V 2000 (1) SACR 453 (SCA)

S v Govela 1987 (4) SA 297 (O)

S v Sebatana 1983 (1) SA 809 (O)

S v Khambule 1991 (2) SACR 277 (W)

S v Modiba 1991 (2) SACR 286 (T)

S v Lekgetho 2002 (2) SACR 13 (O)

S v Abrahams and Another 1989 (2) SA 668 (E)

S v Mabuza 1991 (1) SACR 636 (O)

Legislation Cited

Constitution of the Republic of South Africa (as referred to in the judgment), section 8

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The reviewing court held that the magistrate committed a gross irregularity in the conduct of the trial, principally by failing to properly assist the unrepresented accused in exercising the right of cross-examination and in putting her version to State witnesses, and by subsequently criticising the accused for deficiencies in cross-examination despite the lack of assistance.

The court further held that these procedural defects resulted in the accused not receiving a fair trial, amounting to a failure of justice, and that on this basis the conviction could not stand. The conviction and sentence were accordingly set aside.

The court additionally held that the presiding officer’s conduct displayed a lack of the required impartiality and courtesy, falling short of the standards expected of judicial officers in questioning and courtroom management, reinforcing the conclusion that the proceedings were not in accordance with justice.

LEGAL PRINCIPLES

A criminal conviction requires proof beyond reasonable doubt by the State; an accused need only advance an explanation that is reasonably possibly true, and the evaluation is based on the totality of probabilities and improbabilities when deciding whether guilt has been proved.

Where an accused is unrepresented, the presiding officer bears a duty to provide practical assistance to ensure a fair trial, including facilitating meaningful cross-examination. This may require the presiding officer to clarify whether the accused disputes each material allegation, to guide the accused on the need to put her version to witnesses, and, where appropriate, to ensure that disputed aspects are properly put to State witnesses.

A presiding officer must maintain impartiality, avoid descending into the “arena”, and conduct questioning and trial management in a manner that does not intimidate or unfairly unsettle witnesses or the accused. The presiding officer must also maintain appropriate courtesy, as this is integral to ensuring that justice is not only done but is seen to be done.

A failure to meet these procedural fairness standards, where it results in a failure of justice, constitutes a reviewable irregularity that may justify setting aside a conviction and sentence.