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[2008] ZAWCHC 141
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Oppel v S (A418/2007) [2008] ZAWCHC 141 (15 February 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A418/2007
DATE
: 15
FEBRUARY 2008
In
the matter between:
AUBREY
OPPEL
Appellant
and
THE
STATE
Respondent
JUDGMENT
JOUBERT,
AJ
:
[1]
The appellant was convicted in the Regional Court at Beilvilte on 24
June 2002 on charges of murder and theft. He was sentenced
to a
period of 10 years' imprisonment on the murder count and five years'
imprisonment on the theft count. Leave to appeal was
granted on 4 May
2007. It is unfortunate that this matter only comes on appeal almost
six years after the conviction.
[2]
The appellant's main ground of appeal is based upon the magistrate's
conduct during the course of the trial. The case against
the
appellant was based on circumstantial evidence and the conviction of
the appellant was based, to a large extent, on adverse
credibility
findings made against him by the magistrate. A reading of the record
reveals reveals truly shocking behaviour on the
part of the
magistrate. As will be indicated below he entered into the arena and
subjected the appellant to a lengthy and bullying
cross-examination.
He denigrated and insulted the appellant's legal representative and
threatened to hold him in contempt when
he, quite correctly, objected
to the cross-examination of the appellant by the magistrate.
[3]
His attitude throughout demonstrated a degree of arrogance which is
unbecoming of a judicial officer. He further, having threatened
the
appellant's legal representative with contempt, refused to allow him
to address the Court regarding his own behaviour. Having
made the
insulting remark that the legai representative should first read the
authorities before addressing him, he thereafter
refused to allow him
to do so. It is, however, apparent from the magistrate's behaviour
that he himself flagrantly disregarded,
not only the rules of
propriety and etiquette and basic good manners, but ignored that
which is set out in the authorities with
which he claimed to be
familiar.
[4]
In
S
v Thyabelaf?)
1969(2) SA 22 A at 29G-3QF,
Milne.
J
A stated the following:
"It
is appropriate at this stage to turn to an examination of the second
ground on which the application for leave
to appeal was
founded, namely that the manner in which the trial Judge conducted
himself was such that the appellant and Myakiso,
his co-accused, had
not had a fair trial.
It
is a fundamental principle of our law and indeed, of any civilised
society, that an accused person is entitled to a fair trial,
S
v Alexander & Others
1965(2) SA 696 (A) at 809C-D;
S
v Mushimba en Andere
1977(2) SA 829 (A) at 842B and 844H. This necessarify presupposes
that the judicial officer who tries him is fair and unbiased
and
conducts the trial in accordance with those rules or principles or
the procedures which the law requires,
S
v Meyer
1972(3) SA 480 (A) at 481 F and
S
v Raal
1982(1) SA 828 (A)".
In
the latter case,
Trollip,
AJA
said at 833:
'Of
course, if the offending questioning of witnesses or the accused by
the judge sustains the inference that in fact he was not
open-minded,
impartial or fair during the trial, this Court will intervene and
grant appropriate relief, see for example
S
v Meyer
1972(3) SA 489 (A)".
In
Meyer's
case,
Kotze,
AJA
said at 484D:
"Wanneer
'n geregtlike beampte optree soos hierbo aandui gaan hy, na
my mening
r
redelike
perke te buite. Hy skep dan nie die indruk dat die doet van sy
ondervraging ts om duidelikhejd te vind nie. Veei eerder
word die
indruk gewek dat die geskil vooraf beoordeel word en dat reg en
geregtigheid nie geskied nie,
Solomon
& Another NNO v De Waal
1972(1)
SA 575 (A) at 580.
In
die onderhawige geval het die optrede van die landdros,
volgens my mening, in sy geheel gesien en veral sy gedrag
teenoor die
appellant terwyl hy getuig het, sulke afmetings aangeneem dat dit nie
gese kan word dat hy vlekkelose onpartydigheid
gehandhaaf het nie,
Rondalia
Versekerinqskorporasie van Suid-Afrika Bpk v Ledaf?)
1971(2) SA 586 (A) op 589. By gevolg moet bevind word dat hy nie sy
funkste as regsspreker na behore uitgeoefen het nie.
Afgesien
van die meriete in hierdie saak is 'n bevinding onvermydelik dat die
landdros nie deurgaans en onbevange oordeel bewaar
het nie,
Leda
se saak op 589, en dat sy optrede so ernstig afgewyk net van
behoorlik en ordelike regspraak dat die vorige uitspraak ongeldig
is".
[5]
In such a case the Court will declare the proceedings invalid without
considering the merits. In
Raals
case it was found that the trial Judge's questioning of the appellant
in that case had clearly infringed the limitations set out
at
831H-832H of the judgment of
Trollip,
AJA
which
constituted an irregularity in the proceedings but that it could not
be inferred there from that in fact the trial Judge had
been
prejudiced against the appellant and had prejudged the case against
him, at 834B-C. In this case, however, it was submitted
that the
conduct of
Kruger,
AJ
sustained the inference that in fact he was not open-minded,
impartial and fair during the trial.
[6]
It is accordingly our painful duty to examine the record to determine
whether this submission is well-founded. I say "painful"
because in the words of
Kotze.
AJA
in
Meyer's
case,
supra,
at
483
in
fin
there
is "n tradisie van geregtelike selfbeheer wat howe in
Suid-Afrika met trots nastreef". In
S
v Raal
1982(1) SA 828 (A),
Trollip,
AJA
stated
the following at 833C-834B:
"The
application for leave to appeal comprised the criticism of the
learned Judge's conduct at the trial to his alleged impermissible
or
excessive questioning of the appelfant. It was submitted that from
the very commencement of the trial he descended into the
arena
against the appellant by manifesting disbelief or at least
scepticism of the validity of his defence of self-defence. The
appellant's evidence in chief occupies eight pages of the record.
Cross-examination by the prosecutor covers 41 pages during
which the
learned Judge often intervened and questioned the appellant. I
estimate those interventions to be in ah about 18 pages.
Thereafter,
and before the re-examination of the appellant by his counsel, the
learned Judge proceeded to question him continuously
for 34 pages in
which he traversed in detail virtually the whole of his version
again. But in the main, especially during the
continuous questioning
covered by the aforementioned 34 pages, the interrogation was
tantamount to sheer cross-examination of
the appellant in which
leading questions were put to discredit him as a witness. Many of
them also conveyed judicial disbelief
or scepticism of his evidence
on certain material aspects of the alleged self-defence.
I
shall not over-burden this judgment with extracts from the record to
illustrate the nature of the learned Judge's questioning
of the
appellant, they would be too numerous and lengthy. It suffices for
me merely to say that, in my view, he far exceeded
or clearly
infringed the limitations mentioned above".
[7]
In the present matter, the questions put by the magistrate to the
appellant take up some 30 pages of the record. Leading questions
were put to the appellant by the magistrate and he was
cross-examined. A few extracts which demonstrate the attitude of the
magistrate and the manner in which he questioned the appellant will
suffice. There are numerous similar examples:
"Dan
vra ek nou weer vir u meneer, wanneer het hy gese dit is sy goed?
--- Dit is Donderdag my Edelagbare wat hy gese het
dit is sy goed.
Hoekom
het hy dit vir u gese? â- Ek weet nie, hy het dit net gese my
Edelagbaar.
Ja
so hy lieg, hy heg daaroor ne? --- My Edelagbare ek kan nie onthou
dat hy vir my gevra
het
nie U Edelagbare, as hy vir my gevra het sou ek mos onthou het".
[8]
The treatment of the appellant's representative by the magistrate
was equally objectionable:
"
MNR
GROBBELAAR
:
Agbare mag ek op hierdie stadium net my beswaar aanteken?
HOF
:
Meneer, as jy 'n beswaar het dan moet jy dit maar later aanteken.
MNR
GROBBELAAR
:
Sal die Hof my die
geleentheid
gee om u toe te spreek?
HOF
:
Gaan dit oor die vrae wat ek aan die getuie
vra?
MNR
GROBBELAAR
:
Dit is korrek u is besig om te kruisverhoor. .(tussenbeide)
HOF
:
Ek het die reg meneer, ek het die reg om te vra.
MNR
GROBBELAAR
:
U is besig om te kruisverhoor.
HOF
:
Nee, ek is nie besig om te kruisverhoor nie.
MNR
GROBBELAAR
:
Ek wil net he u moet my beswaar aanteken.
HOF
:
Meneer net 'n oomblik, pasop nou net dat u nie beweeg na minagting
vir die Hof toe nie, sit asseblief.
MNR
GROBBELAAR
:
Mag ek u nie nou toespreek
nie?
HOF:
Nee, sit asseblief.
MNR
GROBBELAAR
:
Mag dit die Hof behaag.
HOF
:
Kan ek net vir u se my funksie is om vas te stel wat is die waarheid
ek gaan nie eers toelaat dat u vir toespraak, u vir my
toespreek
daaroor nie. As dit nodig is dan kan u dit later doen op n
behoorlike wyse deur die regte forum.
MNR
GROBBELAAR
:
So ek mag nie vir u hier toespreek daaroor nie?
HOF
:
Nee, ek gaan u nie laat
r
ek gaan nie laat u my toespreek nie meneer daar is niks waaroor u my
hoef toe te spreek nie.
MNR
GROBBELAAR
:
Mag dit die Hof behaag Agbare.
HOF
:
En voordat jy enEgsins my wil toespreek ne dan roop, lees u die
nodige beslissings oor hierdie aspekte.
MNR
GROBBELAAR
:
Mag ek u toespreek nou daaroor Agbare?
HOF
:
Nee u kan maar terug gaan meneer". (That is clearly to the
accused)
[9]
It is clear that the magistrate simply ignored Mr Grobbelaar's last
request that he be allowed to address him. The behaviour
of the
magistrate was not that which one would expect of a judicial officer.
Magistrates exercise a very necessary and onerous
function, this
does, however, not justify the type of behaviour exhibited by the
magistrate. Taken cumulatively, the questions
put by the magistrate
sustain the inference that in fact he was not fair and impartial
during the trial. In these circumstances
the proceedings are invalid
and the convictions and sentences imposed on the appellant cannot
stand.
[10]
I am of the view that the appeal should be allowed and the conviction
and sentence should be set aside.
JOUBERT,
AJ
SAMELA,
AJ
:
I agree and it is so ordered.
SAMELA,
AJ