Brief Summary

Criminal Law — Murder — Conviction and sentencing — Appellants convicted of two counts of murder and one count of housebreaking with intent to rob — Appellant 1 pleaded guilty to all charges, while Appellant 2 pleaded not guilty to murder charges but guilty to theft — Evidence established that both appellants broke into the home of elderly victims, assaulted them, and stole their belongings, resulting in the victims' deaths — Appellants appealed against convictions and sentences, claiming irregularities in trial proceedings — Court held that the trial was fair and the convictions were justified based on overwhelming evidence of guilt, affirming the death sentences for the murder charges and the prison sentences for theft.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the Appellate Division (now the Supreme Court of Appeal) arising from convictions and sentences imposed in the Transvaal Provincial Division. The appeal concerned whether the trial was vitiated by an irregularity stemming from the trial judge’s questioning of an accused person, in circumstances said to have undermined the appearance of judicial impartiality and the fairness of the proceedings.

The parties were Phillemon Mosotho (first appellant, accused 1) and Stoffel Mosotho (second appellant, accused 2) as appellants, and the State as respondent. The appellants had been tried before Human J and two assessors on two counts of murder (counts 1 and 2) and one count of housebreaking with intent to rob and robbery with aggravating circumstances (count 3).

At the commencement of the trial, accused 1 pleaded guilty to all three counts, while accused 2 pleaded not guilty to the murder counts and tendered a plea of guilty to theft in respect of count 3. The State did not accept these pleas. After trial, both accused were convicted on all three counts. Each was sentenced to death on both murder counts. Accused 1 received 12 years’ imprisonment on count 3, and accused 2 received 15 years’ imprisonment on count 3.

The appellants appealed against their convictions and sentences on counts 1 and 2 under section 316A of the Criminal Procedure Act 51 of 1977, and (with leave) against the convictions and sentences on count 3. The general subject matter of the dispute on appeal was whether the trial judge’s conduct during the evidence, particularly his questioning of accused 2, constituted an irregularity so serious that justice was not seen to be done, resulting in a failure of justice requiring the setting aside of the convictions and sentences.

2. Material Facts

The deceased were Johan Hendrik Kritzinger, an 85-year-old retired professor of theology, and his wife Elizabeth Rachel Kritzinger, aged 83. They lived alone in a house in Meyerspark, Pretoria. The State case at trial was that the appellants broke into the house on the night of Sunday, 12 August 1990, assaulted the deceased while they were in bed, and stole a large quantity of property which they removed using the deceased’s motor vehicle.

The domestic worker (Francina Hlope) and her husband (Frans Mkhabela), who lived on the premises, testified that the deceased usually went to bed at about 23h00. Frans arrived around 23h30 and saw Mrs Kritzinger in the kitchen. He and Francina went to sleep and heard nothing further. Early the next morning they noticed the deceased’s vehicle was missing; on investigating they found both deceased on their beds, bloodied and severely injured, and the house in disarray. Prof Kritzinger died shortly thereafter and Mrs Kritzinger later that morning in hospital.

Medical evidence established that both deceased died from multiple severe skull and brain injuries caused by a pick handle. The wooden handle was found between the beds, and the metal part of the pick was recovered in the garden later that morning. According to the post-mortem evidence, Prof Kritzinger received between four and six blows to the head, and Mrs Kritzinger at least three blows to the head; a wound to Mrs Kritzinger’s hand was probably caused by the pick’s metal part. Forensic testing showed blood of the same group as Mrs Kritzinger’s was present on both the wooden handle and the metal part.

The police investigation established that entry to the house was gained by breaking a large hole in a lounge window. A palm print on the outside windowsill beneath the broken area was later identified as belonging to accused 1. Accused 2’s fingerprints were lifted from a bedroom doorframe and from the handle area of the pick handle; the latter fingerprint was made with a bloodied hand.

Accused 1 was arrested on 15 August 1990 and pointed out certain stolen items to the police. The next day he took the police to accused 2, where other items stolen from the deceased were found. On 16 August 1990 accused 2 made a written statement before a magistrate (Van Eeden) implicating himself and accused 1, including that they went to the deceased’s home to “fetch goods,” that accused 1 broke a window with a pick, and that in the main bedroom he saw that the deceased had been struck with the pick handle; he also described accused 1 striking Mrs Kritzinger again when she regained consciousness and screamed. He stated he protested, went outside, opened the garage doors, and they left in the deceased’s vehicle with the goods, while he personally took a watch and a handbag. Accused 2 also made pointings-out and an accompanying statement to Lieutenant Bouwer, including that he understood beforehand that the elderly people “kept money,” and that he handed the pick to accused 1 after accused 1 climbed through the window.

At trial, accused 1 did not testify. In a statement under section 112(2) of the Criminal Procedure Act 51 of 1977, he asserted a materially different version, alleging that Francina asked them to remove certain goods because she was underpaid, that they returned at midnight, that Francina gave him the pick handle for protection against dogs and unlocked the house, and that he struck Prof Kritzinger when the latter allegedly attempted to retrieve a firearm from under his pillow; he then struck Mrs Kritzinger three times from behind when she tried to escape.

Accused 2 testified and presented a version that differed in various respects from his earlier statements. He suggested they were going to Francina, that accused 1 later produced the pick handle and proposed breaking in to retrieve Francina’s goods, that accused 2 refused and sought to confirm this with Francina but was prevented by accused 1, and that accused 2 waited outside and cut his finger on the broken glass while trying to see inside. He stated he handed the pick handle to accused 1, heard a woman scream, briefly fled, then entered after being called. He said accused 1 claimed he had intended to strike dogs rather than people, and accused 2 asserted that he heard (but did not see) a final blow delivered to the woman.

The trial court rejected accused 2’s evidence as false, citing improbabilities and contradictions, and accepted Francina and her husband’s denial of involvement. It found that the proven facts justified only one inference: both accused knew two elderly people lived in the house; they went there with a common purpose to rob them; they expected resistance; they accepted that violence would be necessary; and on entering the house one was armed with the pick handle and the other with the pick’s metal part, and the deceased were attacked.

For the purposes of the appeal’s outcome, the Appellate Division relied particularly on the trial judge’s questioning of accused 2 during cross-examination. The judgment highlighted that early in accused 2’s evidence the trial judge put to him, in substance, that his version could not be true and that the accused had gone to the house deliberately to rob and kill the elderly occupants, and the judge persisted in making repeated statements of that nature. The judge characterised accused 2’s version in direct and disparaging terms, including that it was “ridiculous,” “made up,” “a tall story,” “lies,” and “cannot be true.”

3. Legal Issues

The central legal question was whether the trial judge, through the frequency, tone, content, and form of his questioning and statements to accused 2, created an objectively reasonable impression that he had aligned himself with the State case, had pre-judged the merits, and had thereby failed to maintain the required appearance of open-mindedness and impartiality.

A further issue was the legal consequence of such conduct under the proviso to section 322(1) of the Criminal Procedure Act 51 of 1977, namely whether the irregularity resulted in the position that “justice has not in fact been done”, commonly expressed as a failure of justice, requiring appellate intervention and the setting aside of convictions and sentences.

The dispute was not framed as a factual contest about the murders and robbery on their merits in the appeal court. Instead, it principally concerned the application of established legal standards governing judicial questioning to the record of what occurred at trial, and the evaluative question whether, viewed objectively, the conduct compromised the appearance of fairness and impartiality to an extent that public policy and the statutory proviso demanded that the trial be regarded as invalid.

4. Court’s Reasoning

The Appellate Division restated the settled principles governing judicial questioning of witnesses and accused persons, drawing on prior authority. A foundational principle emphasised was that justice must not only be done but must clearly be seen to be done, requiring the presiding judicial officer to conduct the trial in a manner that makes impartiality, fairness, and an open mind manifest to those concerned, especially the accused. Correspondingly, a judge should refrain from questioning that, by its frequency, length, timing, form, tone, or content, conveys or is likely to convey the opposite impression.

Although it was not argued that the trial judge had intervened excessively in a purely quantitative sense, nor that he was actually biased in fact, the appeal turned on the appearance created by the judge’s interventions. The court treated the “outward image” of impartiality as decisive in the circumstances. It held that the trial judge’s statements to accused 2 went beyond permissible clarification and entered the realm of attack and assertion, repeatedly putting the State’s case to accused 2 in a manner that suggested the judge had already concluded that the accused went to rob and kill the deceased and that the defence versions were false.

On the record, the court found it “unfortunately clear” that the trial judge had failed to fulfil the duty of ensuring that justice was seen to be done. The judgment pointed to the early stage at which the judge expressed disbelief in accused 2’s version and the persistence of this approach throughout the testimony. The cumulative effect, assessed objectively, was that a reasonable observer would conclude that the judge had accepted the State’s version in advance, rejected the defence case, and had descended into the arena, impairing his ability to evaluate the issues objectively at the end of the case.

The court further reasoned that the irregularity affected not only accused 2 but also accused 1. The judge’s repeated assertions about a common purpose to rob and kill and the falsity of the defence case were equally relevant to the State case against accused 1 and to accused 1’s version as set out in his section 112(2) statement. The impression created was therefore that the case against both accused had effectively already been decided during the evidence.

Applying the proviso to section 322(1), the court considered whether the irregularity resulted in a failure of justice. It referred to authority explaining that “justice” in this sense is the product of proceedings conducted in accordance with fundamental requirements of law and fairness, and that whether a deviation is sufficiently serious to constitute a failure of justice depends on the circumstances and involves considerations of public policy. The court held that the irregularity in this case materially and substantially prejudiced both accused. It reasoned that the judge’s persistent and forceful assertions contained the essential elements of his ultimate merits findings, and would have left the accused with the impression that nothing they could do would affect the outcome. The court regarded it as likely that the further course of the trial was adversely affected, including accused 2’s ability to present his version and any decision by either accused to call additional defence evidence.

In light of the seriousness of the deviation from the requirements of a fair trial, the court concluded that the accused were not properly tried. Consistent with the approach in comparable cases where the irregularity is regarded as striking at the validity of the proceedings, the court considered it unnecessary to resolve the merits of the convictions independently of the tainted credibility findings and trial atmosphere. The appropriate remedy was to set aside the convictions and sentences.

5. Outcome and Relief

The appeals succeeded. The Appellate Division set aside the convictions and sentences of each appellant on all the counts that formed the subject of the appeal.

No costs order was recorded in the judgment.

Cases Cited

S v Rall 1982(1) South African Law Reports 828 (Appellate Division); S v Sallem 1987(4) South African Law Reports 772 (Appellate Division); S v Maseko 1990(1) SASV 107 (Appellate Division); Dairy Board v Imperial Cold Storage and Supply Co Ltd 1977(3) South African Law Reports 659 (Appellate Division); S v Wood 1964(3) South African Law Reports 103 (O); Rondalia Versekeringskorporasie van S A Bpk v Lira 1971(2) South African Law Reports 586 (Appellate Division); Solomon and Another NNO v De Waal 1972(1) South African Law Reports 575 (Appellate Division); Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976(2) South African Law Reports 565 (Appellate Division); Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 All England Law Reports 155 (Court of Appeal); S v Mushimba and Others 1977(2) South African Law Reports 829 (Appellate Division); S v Meyer 1972(3) South African Law Reports 480 (Appellate Division); S v Seheri en Andere 1964(1) South African Law Reports 29 (Appellate Division).

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 112(2), 316A, 322(1) and its proviso, and 324).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the trial judge’s questioning and repeated statements to accused 2 were of such a nature that they created a reasonable impression that the judge had pre-judged the case, aligned himself with the prosecution, and failed to maintain the required appearance of impartiality and open-mindedness. This constituted an irregularity.

The court further held that the irregularity prejudiced both accused and resulted in a failure of justice within the meaning of the proviso to section 322(1) of the Criminal Procedure Act 51 of 1977. Accordingly, the convictions and sentences could not stand and were set aside.

LEGAL PRINCIPLES

A presiding judicial officer must conduct a criminal trial so that justice is not only done but is manifestly seen to be done, which requires that the judge’s open-mindedness, impartiality, and fairness be apparent to those involved, especially the accused.

Judicial questioning is permissible, but a judge must refrain from questioning or making statements that, by their frequency, length, timing, form, tone, or content, convey or are likely to convey that the judge has taken sides, has accepted one version in advance, or has otherwise abandoned the stance of an impartial adjudicator.

A serious transgression of the limits of judicial questioning constitutes an irregularity. On appeal, the decisive inquiry under the proviso to section 322(1) of the Criminal Procedure Act 51 of 1977 is whether the irregularity resulted in a failure of justice, assessed with reference to prejudice, the integrity of the proceedings, and considerations of public policy.

Where the irregularity is so grave that it undermines the validity of the trial process and the appearance of fairness, appellate relief may follow without an evaluation of the merits, because the conviction is the product of proceedings that did not meet the fundamental requirements of law and fairness.

S v Masotho en 'n Ander (210/91, 718/91) [1992] ZASCA 229 (27 November 1992)