S v Matroos (CA&R 44/04) [2004] ZANCHC 94; [2005] 2 All SA 404 (NC) (10 December 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2004
>>
[2004] ZANCHC 94
|

|

S v Matroos (CA&R 44/04) [2004] ZANCHC 94; [2005] 2 All SA 404 (NC) (10 December 2004)

Reportable: Yes / No
Circulate to Judges:
Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no:
CA&R
44/04
Date
heard:
11/11/2004
Date
delivered:
10/12/2004
In
the appeal of
:
CHRIS
MATROOS APPELLANT
versus
THE
STATE RESPONDENT
Coram:
Majiedt J
et
Musi, AJ
REASONS
FOR JUDGMENT
MAJIEDT
J:
In
the as yet unreported judgment of
J
J Kok v The State
,
CA&R 93/2003, delivered on 22/9/2004 by Kgomo JP (with
which I had concurred), the learned Judge President
referred to
remarks enunciated by Kriegler J at an international conference
where the latter had appealed for restraint from Judges
in
criticising magistrates’ judgments. Kgomo JP also alluded to the
fact that the Judges of this Division have taken the aforementioned
appeal to heart.
I
fully subscribe to these observations, ever mindful of the often
difficult circumstances under which magistrates, both in the District
and Regional Courts, perform their tasks. One is particularly
hesitant to nitpick
ex
post facto
about
trivialities with the benefit of hindsight. Not only is criticism
apposite in this case, but it concerns a judgment of the
very same
Regional Magistrate who had presided in the
Kok
appeal,
supra
,
namely Mr C T G Jacobs of Upington.
The
appellant appeals against his sentence only. His is a so-called
“prison
appeal”
,
i.e. he has directed a notice of appeal in person from prison. He
is being assisted in this appeal by Mr Mayisela of the local
Justice
Centre. The notice of appeal is considerably out of time and the
appellant seeks condonation therefor, alleging that he
had lodged
his notice of appeal within the requisite time period at Upington
prison (he is now incarcerated in Bloemfontein).
The appellant
infers that the prison authorities at Upington had failed to forward
his notice of appeal to the Clerk of the Court
there.
Regard
being had to the shocking miscarriage of justice which had occured
in this matter as will appear later herein, I had caused
the
following notice to be forwarded to both Counsel for the State and
Counsel for the appellant after I had initially perused
the record:
“
1. This
appeal is set down for hearing on 11/11/2004. Counsel for the
Appellant and for the State are requested to submit supplementary
Heads of Argument on the following matters:
1.1 Is this Court
on appeal empowered by virtue of its inherent powers of review to
consider the merits of the Appellant’s conviction
as well?
1.2 If so, has the
Appellant had a fair trial, given the Regional Magistrate’s
constant interference during the proceedings, particularly
with
regard to:
(a) taking
over the leading of the evidence in chief of many State witnesses
from the prosecutor;
(b) eliciting
inadmissible evidence from particularly the witness W. Coetzee,
relating to the Appellant’s previous assaults
on the deceased as
well as eliciting an admission allegedly made by the Appellant
through blatantly leading questions.
See in this
regard:
State v J J
Kok
,
unreported judgment in this Division, under case CA&R 93/2003,
delivered on 22/09/2004 (Kgomo JP, Majiedt J concurring) and
cases
there cited. A copy of the judgement is attached.
2. The
supplementary Heads must be delivered to the presiding Judges as
follows:
2.1 for the
Appellant by no later than Friday 5/11/2004;
2.2 for
the Respondent by no later than Tuesday 9/11/2004.”
Counsel
are
ad
idem
that
this Court has the inherent power of reviewing the correctness of the
appellant’s conviction.
See: Secs
19 and 22 of the Supreme Court Act, 59 of 1959, read with
sec 309
of
the
Criminal Procedure Act, 51 of 1977
;
Hiemstra,
Suid-Afrikaanse
Strafproses
,
6
th
ed at 829.
Moreover,
Counsel for the State, Ms C G Jansen has, very properly and correctly
in my view, conceded in her supplementary Heads of
Argument that the
appellant’s conviction cannot stand, given the numerous gross
irregularities committed during his trial. We
had consequently
issued an order at the hearing as follows:
“
1. The
appellant’s application for the condonation of the late lodging of
his notice of appeal is granted.
2. The appeal
succeeds. The appellant’s conviction and sentence are set aside.
3. The
appellant is to be released forthwith, unless there are other matters
pending against him for which he is to be held in custody.”
We
had reserved our reasons for the aforementioned order. These are
they.
5. The
appellant was charged with the murder of his girlfriend. He
experienced problems raising the money required for his defence,
with
the result that his attorney withdrew. He chose to go it alone at
his trial, spurning the offer of legal representation through
the
Legal Aid Board. The fact that he was unrepresented at the trial is
an important consideration when the conduct of Magistrate
Jacobs is
assessed herein.
6.1 Problems
arose at the very commencement of the trial and continued throughout.
The Magistrate gave a lengthy and detailed explanation
to the
appellant as to his rights at plea stage, including the right not to
give a plea explanation. He failed, however, to explain
to the
appellant that he also does not have to answer any questions from the
Bench at this stage of the proceedings. This is in
itself an
irregularity, the impact of which depends upon the facts and
circumstances of each case.
See:
S
v Evans
1981(4)
SA 52(C) at 58 G – 59 A.
S
v Daniels en ‘n ander
1983(3) SA 275 (A) at 299 F-H.
6.2 Astonishingly,
however, the Magistrate then rode roughshod over the appellant’s
rights and commenced putting questions to the
appellant before he had
made an election as to whether he would elucidate his plea of not
guilty. This is how it happened:
“
Voorsittende
beampte:
U verstaan die verduideliking wat die Hof vir u gegee het, né? Wil
u vir die Hof kortliks sê waarom u onskuldig pleit of wil
u nie nou
al sê nie? Kom die Hof vra vir u so. Om nou dit vir ons almal
makliker te maak. Die oorledene in die saak, die Lena
Jacobs,
volgens die klagstaat was sy ook bekend as Sustertjie, het u vir haar
geken? Weet u wie sy was?”
6.3 It
is trite that an accused has the right to remain silent. He/she may
elect not to give a plea explanation and not to answer
any questions.
See,
generally:
Hiemstra,
SA
Strafproses
,
6
th
ed. at 324-325 and cases there cited;
Du
Toit
et
al,
Commentary
on the
Criminal Procedure Act
,
at 18-7 to 18-8, and cases there cited.
It
must be made clear to an undefended accused that there is no
obligation to say anything.
See:
S
v Daniels en ‘n ander
,
supra
,
at 299 F-H.
Steytler,
The
Undefended Accused
at 128.
6.4 It
is also irregular to question an accused in terms of
sec. 115(2)
without having first invited the accused to give a plea explanation
in terms of
sec. 115(1).
See:
S
v Philander
1977(2) PH H 214 (NC).
In
my view the same position holds where, as is the case here, the
accused is questioned even before he/she has had the opportunity
of
making an election on whether to furnish a plea explanation.
7.1 During
the course of the evidence in chief of every State witness the
Magistrate without fail took over the questioning from the
prosecutor. When reading the record, one is intensely aware of the
constant drone of the Magistrate’s incessant interference –
both
in the evidence in chief and in the cross-examination of the State
witnesses and in the cross-examination of the appellant.
7.2 The
most telling of these interferences and what Ms Jansen for the State
correctly describes in her Supplementary Heads as
“die
grofste onreëlmatigheid”
occurs during the evidence in chief of Willem Coetzee, the deceased’s
father. He was called by the prosecutor for the sole purpose
of
testifying about the identification of the deceased’s corpse, since
this was not admitted by the appellant (it should be noted
that the
appellant had earlier indicated in reply to a question by the
Magistrate, that he had no knowledge of how the deceased came
to meet
her death).
The
prosecutor’s questions on this aspect are to be found from page
34(18) to page 36(10), i.e. just under 2 full pages. The Magistrate
then immediately proceeds to question Mr Coetzee concerning the
incident itself, a matter which had not even remotely been touched
on
by the prosecutor. A number of irregularities arise in the course of
this questioning, to which I shall make reference seperately
in due
course.
At
this juncture it suffices to make the point that the Magistrate had
fully assumed the mantle of the prosecutor with the very first
witness to be called by the State and things continued much along the
same line throughout the trial.
The
Magistrate’s questioning of Mr Coetzee on the incident itself
commences at p38(16) and continues until p48(14), i.e. nearly
ten
full pages.
Quite
significantly, the prosecutor did not ask any further questions in
chief after the Magistrate had concluded his lengthy questioning.
7.3 Much
the same scenario as the present one had arisen in
S
v Mathabathe
2003(2)
SACR 28(T), except that in that case the Magistrate had justified his
interference in taking over the leading of the complainant’s
evidence in chief on the prosecutor’s indolence and indifference
(which is not even remotely the case here). Southwood J (Kirk-Cohen
J concurring) expressed empathy with the Magistrate’s dilemma, but
set aside the conviction and sentence nevertheless.
At
30a of the said report, Southwood J states that:
“When
the presiding magistrate finished leading the complainant the
prosecutor had no questions to ask”.
The
same applies here. Moreover the questioning concerned matters not
covered by the prosecutor at all. What is even more serious
and
extremely disturbing, is the
nature
of the questions which were asked by the Magistrate, to which I now
turn.
Not
only did the Magistrate take over the prosecutor’s functions
during the examination in chief of Mr Coetzee, but he also elicited
inadmissible evidence in an entirely improper manner.
8.1 The
Magistrate questioned the witness about a conversation which the
witness had with the accused. This evidence reads as follows:
“
Voorsittende
beampte
: Goed
en u sê toe nou vir hom hy moet nou nie lieg nie. Wat sê hy toe
vir u?
Getuie
Mnr W Coetzee
:
Ja, hy moenie vir my lieg nie. Toe sê hy vir my, hy het net die
kind twee houe met die belt geslaan. Toe het ek vir hom gevra,
‘Nou,
hoe kan die kind dood is van twee houe met ‘n belt. ‘n Belt kan
mos nie ‘n mens dood slaat as jy hom twee houe geslaat
het nie”.
8.2 Having
elicited the aforequoted admission, the Magistrate then put the
following blatantly leading questions to Mr Coetzee relating
to the
voluntariness of the admission:
Voorsittende
beampte
:
Toe u nou die nag daar kom, die Saterdagoggend, wat – wat die
dogter nou vir u kom roep het, toe u met Chris, met die beskuldigde
gepraat het, hoe het hy vir u geklink, nugter of het hy vir u geklink
of hy ‘n doppietjie ingehad het, hoe het hy vir u geklink?
Getuie
Mnr W Coetzee
:
Hy was nugter.
Voorsittende
beampte
:
Was hy nugter. Het u hom al gehoor of gesien as hy dronk is?
Getuie
Mnr W Coetzee
:
Ja.
Voorsittende
beampte
:
Maar daardie tyd was hy nugter gewees?
Getuie
Mnr W Coetzee
:
Hy was nugter.
Voorsittende
beampte
:
En – en dit wat hy nou ook vir u gesê het, hy het nou die kind
net met die belt twee houe geslaan, hy het dit vir u vrywillig
gesê,
u het hom nou nie gedwing of gefors om dit te sê nie?
Getuie
Mnr W Coetzee
:
Nee, nee.
Voorsittende
beampte
:
Hy het dit uit sy eie uit vir u gesê?
Getuie
Mnr W Coetzee
:
Uit sy eie.”
The
Magistrate
then
proceeds directly from this irregular conduct to the next, namely
attempting to elicit irrelevant and inadmissible character
evidence.
It reads thus on the record:
“
Voorsittende
beampte
:
O, erfwerk. Is dit nou net hierdie een keer wat u weet wat die
beskuldigde vir haar geslaan het, of is dit maar meer kere wat
sy so
pakgekry het by hom of weet u nou nie van ander voorvalle?
Getuie
Mnr W Coetzee
:
Nee, nog nooit wat ek gesien het nie.”
Although
the reply here was in the negative, the following questioning occurs
with the State witness Gert Maasdorp on the same subject:
“
Voorsittende
beampte
:
Nou hoekom het u dan nie gaan keer nie?
Getuie
Mnr G Maadorp
:
Ek is dan bang, Edelagbare, om nader te gaan, dan kan hy vir my mos
ook aanrand.
Voorsittende
beampte
:
Is die beskuldigde bekend as ‘n – as ‘n man wat gewelddadiglik
kan raak of wat?
Getuie
Mnr G Maasdorp
:
Ja.”
On
the next page of the record, the evidence reads as follows (the
Magistrate had apparently been interrupted in the course of his
questioning):
“
Voorsittende
beampte
:
Maar – maar, nou was die Hof nog besig, voor ek weer gepla was vir
die hoeveelste keer vanoggend, is beskuldigde maar ‘n woelige
man
of nie regtig nie?
Getuie
Mnr G Maasdorp
:
Ekskuus?
Voorsittende
beampte
:
Is die beskuldigde, Chris, is hy maar ‘n bakleierige, woelerige
soort van mens of nie?
Getuie
mnr G Maasdorp
:
Hy is, Edelagbare, Hy is, Edelagbare.
Voorsittende
beampte
:
O, dit is die wat u vir hom bang was?
Getuie
mnr G Maasdorp
:
Ja, Edelagbare.”
8.4 It
is not surprising therefore that, when the appellant questioned the
witness Ms Maasdorp as to why she and her husband (Gert)
had not
assisted the deceased when they allegedly saw her being assaulted by
the appellant, the Magistrate summarily disallowed the
question on
the basis that he hears many cases where people who intervene get
killed and that the witnesses in this matter were justifiably
too
afraid to intervene!
8.5 From
the aforegoing extracts from the record it is abundantly clear that
the Magistrate had now fully assumed the role and funtion
of the
prosecutor. He merrily continued along this way throughout the
trial. The poor unrepresented appellant found himself at
the mercy
of a presiding officer who proceeded to descend into the arena on the
side of the prosecution with great vigour and zeal
from the outset
and continued to do so throughout the trial. In these circumstances
justice and fairness are but mythical illusions,
completely absent in
these proceedings.
9.1 When
the district surgeon, Dr Eksteen, was called to testify, the
Magistrate also took over his examination in chief from the
prosecutor. It is not necessary to burden this judgment further with
extracts from the record – the point is already sufficiently
clear
ex
facie
my discussion under par 7.2 supra.
9.2 It
is extremely ironic that the Magistrate, at the stage of the
proceedings when he was explaining to the appellant his rights
after
the State had closed its case, said the following to the appellant:
“
...Die Hof kan
ook vrae aan u stel. U het nou gesien dat ek deurgaans vrae aan van
die getuies gestel het. My doel is nou nie om
iemand te
kruisondervra nie, maar as daar iets is wat vir my onduidelik is of
iets waaroor ek groter duidelikheid of helderheid wil
kry, dan vra ek
vrae aan die getuies. So sal ek ook vrae aan u kan stel”.
The
Magistrate’s questioning in this case was hardly for purposes of
elucidation, as I have shown.
10. The
Magistrate’s improper role in co-prosecuting the State’s case is
also evident from the following:
He
dictated to the prosecutor how she should present the State’s case
with regard to the so-called chain evidence in respect of
the
deceased’s identity:
“
Mevrou
wil
ons
(!) nie maar eers begin met die persoon wat die liggaam opgetel het,
ensovoorts nie”. (the underlining and exclamation are my own).
When
certain formal evidence on affidavit relating to for example the
taking of a blood specimen from the deceased was to be handed
in,
the Magistrate discouraged the appellant from asking questions on
that aspect as follows:
“
U wil nie
daaroor vrae vra nie, né?”
10.3 When
the witness Gert Maasdorp, like his wife before him, explained that
he did not intervene during the alleged assault of the
appellant upon
the deceased due to fear, the Magistrate
mero
motu
placed
the following on record:
“
Voorsittende
beampte
: Sommer
terwyl ek nou so kyk, beskuldigde is ‘n groot, sterk jong man, né.
Hy is ‘n bietjie – lyk my hy is ‘n bietjie langer
van
liggaamsbou as wat u ook is. Die beskuldigde, Chris, hy is ‘n
lang, groot, sterk man?
Getuie
Mnr G Maasdorp
:
Ja, Edele”.
10.4 When
Mr Maasdorp described the alleged assault upon the deceased, the
Magistrate for the umpteenth time intervened as follows:
“
Voorsittende
beampte
:
Net voor julle nou by die uitsleep kom. U het nou vir ons gesê
beskuldigde het haar nou so kruis en dwars met die lyfband geslaan
oor die lyf. Hoeveel houe, omtrent so tien of twintig houe of hoe
het dit vir u gelyk? Of sal dit minder houe wees wat hy haar
met die
lyfband geslaan het, met die belt geslaan het?
Getuie
Mnr G Maasdorp
:
Sê maar tien.
Voorsittende
beampte
:
Omtrent so tien.
Getuie
Mnr G Maadorp
:
Tien.”
It
comes as no surprise at all that the witness had latched on to the
answer suggested by the Magistrate.
The
Magistrate also displayed considerable impatience with the
appellant’s cross-examination, disallowing a number of relevant
and permissible questions in the process. This impatience is
particularly evident in the numerous instances where the Magistrate
had asked of the appellant:
“Verdere
‘vrae’ or ‘enige ander vrae’”
.
This happened on no fewer than six occasions during the
cross-examination of Ms Anna Maasdorp.
In
S
v Malatji and another
1998(2)
SACR 622(W), at 626 f – g, Cameron J (as he then was) stated:
“Furthermore,
a number of times during the cross-examination of the two appellants,
the magistrate interposed, apparently out of
the blue, with: ‘Het
u verdere vrae?’ This appears to have been a tactic calculated to
discourage the continuation of cross-examination.
A presiding
officer is plainly entitled and obliged to discourage irrelevant,
vacuous, and rambling cross-examination. None of
that applied in the
present case. The magistrate’s interventions were obviously
designed to stifle any cross-examination at all.
They bespoke a mind
closed to the appellants’ entitlement to probe the State evidence
in order to assert their innocence. They
were of such a nature that
the appellants were deprived of their elementary right to a fair
trial.”
The
same can be said here. The appellant was hardly afforded any
reasonable opportunity to test the State case in cross-examination.
12. The
coup
de grâce
as
far as the myriad irregularities are concerned, is the Magistrate’s
zealous assistance to the prosecutor in cross-examining the
appellant. The record is replete with such instances and I do not
consider it necessary to burden this judgment any further with
extracts from the record on this aspect.
13. The
need for a presiding officer to exercise patience and to remain
impartial, fair and objective is trite.
See,
inter
alia
:
S
v Meyer
1972
(3) SA 480
(A) at 484 D – F;
S
v Rall
1982
(1) SA 828
(A) at 831 H – 832 A;
S
v Moseko
1990
(1) SACR 107
(A) at 118 i – 119 a;
S
v Moisoinyane
1998
(1) SACR 583
(T) at 596 j – 597 j
A
mere passive role as umpire is, however, not appropriate, for a
presiding officer must ensure that justice is done. A balance
between
improper interference and passive remoteness is therefore
called for: See:
S
v Gerbers
1997
(2) SACR 601
(SCA) at 607 a – c.
14. The
conclusion is unavoidable that the appellant has not had a fair
trial. The numerous irregulatities committed at the trial,
set forth
hereinbefore vitiates the proceedings.
In
Yuill
v Yuill
[1945] 1 All ER 183
(CA) at 189 Lord Greene MR aptly put it thus:
“The
judge who himself conducts the examination … descends into the
arena and is liable to have his vision clouded by the dust
of
conflict. Unconsciously he deprives himself of the advantage of calm
and dispassionate observation.”
This
is so true of the conduct of Magistrate Jacobs in this matter.
15. An
extremely worrying feature is that in a number of so-called
“prison
appeals”
which have come before Judges of this Division in recent times,
Magistrate Jacobs’ conduct during the trials has been the central
bone of contention and in some instances same has led to the
convictions and sentences being set aside
on
that particular ground alone
.
I shall list a number of them shortly. My concerns are the
following:
(a) In
most, if not all, of these appeals, the appellants had, for reasons
unknown, lodged their appeals well out of time with the
result that
they had been incarcerated for a number of years before their appeals
had been upheld. The present appeal is a case
in point – the
appellant had been convicted on 13 November 2000 and his notice of
appeal is dated 21 January 2003. He first appeared
in court on 30
July 1999 and had been in custody ever since (the appellant had been
remanded in custody throughout his trial which
had been characterised
by a number of postponements, primarily due to his problems with the
payment of his attorney, to which I had
alluded earlier in this
judment). Now, more than 5 years later, he is to be released after a
successful appeal.
(b) Quite
often these
“prison
appeals”
are decidedly thin on merit and are presumably inspired by unofficial
“legal
advice”
from fellow prisoners informally schooled in the law through their
careers in crime.
On
that view of the matter, it is somewhat unusual to find that a number
of these matters emanating from the trial court of Magistrate
Jacobs,
are meritorious on the basis of the unfairness of the trials which
had been conducted.
It
is quite disturbing when one begins to speculate how many other
convicted persons languish in jails at this time, having been
unfairly convicted by Magistrate Jacobs, but who have not had the
benefit of the informal legal advice to which I have referred.
16. Judges
and magistrates have an important responsibility to ensure that
justice is done in their courts. We are not mere mechanical
purveyors of the law – sec 165(2) of the Constitution demands from
us that we must apply the provisions contained in the Constitution
as
well as the law in general
“impartially
and without fear, favour or prejudice”
.
One
of those constitutional provisions, entrenched in the Bill of Rights,
is the right to a fair trial which accused persons have
(sec. 35(3)).
This
right is afforded any and all accused persons, regardless of their
station in life. It applies equally to prince and pauper,
to farmer
and farmworker, to haves and have-nots, to the literate and the
illiterate, to the mighty and the meek and to the powerful
and the
powerless.
17. What
is to be done in this instance where, as I shall now show, a number
of cases before the same Magistrate have been tainted
by a plethora
of gross irregularities perpetrated by the said Magistrate?
The
number and gravity of the irregularities emanating in the present
matter should be evident from this judgment and yet I have
not
touched upon all of them in order not to overburden this judgment.
I
venture to suggest, as did Cameron J in
S
v Malatji & another
supra
at
623 j, that
“the
Regional Magistrate ... appears to have been a law unto himself in
his court”
(in
Malatji
the
circumstances were similar in that the Regional Magistrate in
question had also conducted a number of trials in complete disregard
of the fundamental tenets of fairness).
18. What
follows is a brief synopsis of the irregularities committed in trials
before Magistrate Jacobs which had come on appeal recently
before
Judges of this Division:
a) I
have already referred to the judgment of Kgomo JP in the Kok appeal
(see the introductory paragraph of this judgment).
In
that matter the Court had on appeal set aside the appellant’s
conviction and sentence by reason of the gross irregularities
committed and the unfairness of the trial. In his introductory
remarks, Kgomo JP referred to the
Kok
matter as “
an
excellent case study for aspirant magistrates on how not to conduct a
criminal trial.
”
The
irregularities were:
(i) Magistrate
Jacobs had, as is the case here, taken over the leading of the State
witnesses’ evidence–in-chief from the prosecutor;
(ii) the
Magistrate had effectively deprived the appellant from obtaining
legal representation after his attorney had withdrawn midway
through
the trial;
(iii) he
had interfered unnecessarily with the attorney’s cross-examination
and with the appellant’s cross-examination;
(iv) he
took judicial cognizance of the evidence of a witness who had
testified before him previously –an aggravating feature is
that it
related to the witness’ ability to track a number of footprints,
i.e evidence of a highly technical nature;
(v) he
also failed to assist the unrepresented appellant (qua accused) to
advance his defence in a proper manner.
(b) In
JT
Melani v The State,
CA&R
61/04, an unreported judgement in this Division delivered on
03/12/2004, written by Musi AJ (Tlaletsi J concurring)
the Court
had similarly set aside the appellant’s convictions and sentences
on the basis that the appellant did not have the benefit
of a fair
trial, given the numerous gross irregularities committed during the
trial by Magistrate Jacobs. Musi AJ, in finding
that the outcome
should be the setting aside of the appellant’s convictions and
sentences, remarked as follows:
“
The end result
of the regional magistrate’s conduct is an injustice to the victims
of these crimes.”
The
same can be said in the present matter.
In
the Melani appeal the following irregularities were held to have been
committed by Magistrate Jacobs:
i) The
magistrate failed to ensure that the appellant was granted access to
state witness’ statements which he had requested.
ii) The
magistrate couched his explanation of the appellant’s rights in
terms of
sec. 115
of the
Criminal Procedure Act in
terms which
were found to be designed to induce the appellant to disclose the
basis of his defence.
iii) The
magistrate was found to have deprived the appellant’s co-accused of
his freedom by revoking his bail
mero
motu
and without any adherence whatsoever to the
audi
alteram partem
principle (the co-accused’s convictions and sentences were also set
aside by the Court, exercising its inherent review powers,
for the
same reasons as that of the appellant’s appeal).
iv) The
co-accused was effectively denied the right to testify in his own
defence, since the magistrate (incorrectly in law) insisted
that the
co-accused should testify from the witness box – the magistrate
erroneously adopted the position that he could not testify
from the
dock.
v) In
my view the most glaring and disconcerting irregularity committed by
Magistrate Jacobs relates to an inspection
in
loco
.
On count 3 there had been a dispute relating to whether a particular
gate had been open on a certain day. The appellant had testified
that he ran through an open gate, whilst it was the State’s
contention that that particular gate was always locked and had been
locked on the day in question. In the course of the
cross-examination of the appellant, the magistrate interjected,
accused the
appellant of lying and told the appellant:
“
Ek sal vir u
gaan wys. Ek sal vir u gaan wys. Upington, daardie omgewing het nie
oornag verander of in die afgelope twee of vier
of ses jaar nie. U
praat leuens sê ek dit vir u.”
The
magistrate then
mero
motu
arranged for an inspection
in
loco
to be conducted in this regard. Subsequent thereto, the magistrate
placed his observations on record and also recorded that he had
coincidentally parked his vehicle in the same area the previous
Saturday and that he had seen that the said gate was locked. He
also
recorded that he had (deliberately this time) passed that same area
the previous day to ascertain certain facts:
“
Ek
het gistermiddag weer daar verby gery in die area en net gaan kyk, om
my te vergewis van sekere aspekte en dit was toe g
ewees,
op ‘n oggend was die hek toe.”
The
Court (Tlaletsi J and Musi AJ) found that the magistrate had
committed a gross irregularity by importing into the case facts
within
his own knowledge. He had effectively placed himself in a
position where he had become a witness for the prosecution.
vi) The
magistrate, as is the case here, was extremely impatient and
intolerant of the appellant’s cross-examination. He also
cross-examined
the appellant with great zeal. Ultimately, the Court,
as I have stated, set aside the convictions and sentences of both the
appellant
and his co-accused, since they have not had a fair trial.
A
further disconcerting aspect is that this magistrate consciously
disregard
dictae
of this Court. I refer to some of these:
a) In
S
v Snyders
,
CA&R 282/2003, unreported judgment of Kgomo JP et Tlaletsi J,
delivered on 6 August 2004, the magistrate was urged to structure
his
judgments in accordance with the format proposed by Broome DJP in
S
v Bhengu
1998(2) SACR 231 (N) at 234 h-j. In
S
v L. Molojwane
,
Case No RC 64/2003, the same magistrate says the following:
“
Hierdie Hof is
terdeë bewus van die versoek by verskeie geleenthede deur hulle
Edele Regters van die Noord-Kaapse Afdeling van die
Hooggeregshof dat
die Hof opsomming en uitspraak so kort as moontlik moet maak.
Prakties skep dit dikwels vir die Hof probleme ...
Daarom verkies ek
om die getuienis én die redes so volledig as moontlik te verstrek.
Dit is dan makliker vir alle persone op ‘n
latere geleentheid om
kennis van te neem van wat gebeur het en die redes vir
skuldigbevinding.”
b) In
S
v Thando Tom,
CA&R
147/2004, a petition for leave to appeal in this Division, the record
reflects that the magistrate had made the following
remarks:
“
Ek
het baie int
eressant
genoeg onlangs in ‘n appél opgemerk dat suster Jansen baie heftig
aangevat was deur die Regters omdat sy getuig het nadat
sy ‘n
klaagster uitgevra het en die klaagster se storie nie gerym het nie,
het sy dit aangeteken en het sy dit later in die hof
getuig. Met die
grootste respek stem ek nie met daardie benadering saam nie. Suster
Jansen is iemand wat baie gereeld in hierdie
hof getuig en ek het
groot begrip en waardering daarvoor. Omdat daar soveel kanse gevat
word, om dit nou sommer prontuit te stel,
deur klaagsters wat vertel
dat hulle verkrag is, verkies ek dat die dokter of die
verpleegkundige suster soos hier wat ‘n klaagster
ondersoek, as dit
reeds vir hulle duidelik is dat daar ‘n slang in die gras by wyse
van spreke is, dan verkies ek dat hulle dit
aanstip, want dit help
later die Hof. Die Hof met sy personeel sit jare na die tyd en dan
moet iets uitgepluis word. Hierdie persone
wat onmiddellik na ‘n
verkragting met ‘n slagoffer, in aanhalingstekens, te doen het, is
persone wat werklik groot waarde later
vir die Hof kan gee.”
(The
“onlangse appél” which the Magistrate referred to is the matter
of
S
v S
[2004] 1 All SA 344
(NC)
)
.
The
Magistrate’s remarks smacks of a contemptuous disregard of the
stare
decisis
rule, which is firmly established in our justice system. See:
Ex
parte Minister of Safety & Security: In re S v Walters
2002(4) SA 613 (CC) at 646 D-H.
Having
regard to the aforegoing cases and the present matter, I am of the
view that the magistrate’s conduct requires the scrutiny
of the
Magistrates’ Commission. I come to this conclusion with
considerable regret, since Magistrate Jacobs is in my view not
only
one of our most experienced, but also one of the most hardworking
regional magistrates. He does, however, seem to be going
about his
work in completely the wrong way. I have,
ex
abundante cautela
,
shown this judgment to the Judge-President of this Division and he
is
ad
idem
that the matter should indeed be referred to the Magistrates’
Commission.
I
therefore direct that a copy of these reasons be forwarded by the
Registrar to the Magistrates’ Commission.
___________
SA
MAJIEDT
JUDGE
I
concur:
___________
CJ
MUSI
ACTING
JUDGE
FOR THE
APPELLANT : Adv VN Mayisela
FOR
THE RESPONDENT : Adv CG Jansen
DATE OF HEARING : 11 NOVEMBER
2004
OF
JUDGEMENT
: