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S v Gerbers (571/95) [1997] ZASCA 48; [1997] 3 All SA 61 (A) (26 May 1997)

80 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Judicial conduct — Irregularities in trial proceedings — Appellant convicted of murder and attempted murder, appealed on grounds of trial judge's excessive questioning and conduct — Appellant contended that the judge's interventions compromised impartiality and fairness, leading to a failure of justice — Court found that while a judge may question an accused, the cumulative impact of the judge's conduct in this case was excessive and prejudicial, warranting the setting aside of the convictions and sentences.

Comprehensive Summary

Summary of Judgment


1. Introduction


These were criminal appeal proceedings in the Supreme Court of Appeal, arising from a trial in the Cape of Good Hope Provincial Division. The appellant, Roderick Gerbers, had been convicted on one count of murder and two counts of attempted murder, and sentenced to an effective term of 23 years’ imprisonment. He was also convicted of unlawful possession of a firearm and ammunition and sentenced to a further 2 years’ imprisonment.


The respondent was the State. An application for leave to appeal against the murder and attempted murder convictions and the sentences was refused by the trial judge (Louw AJ). However, a special entry was made, and the appeal proceeded on that basis.


The general subject-matter of the dispute was not the merits of guilt as a first-order enquiry, but whether the trial was vitiated by irregularities stemming from the trial judge’s conduct, specifically whether the judge descended into the arena, thereby compromising impartiality and causing a failure of justice.


2. Material Facts


It was common cause at the trial that the appellant fired multiple shots in the direction of the deceased and two other persons, and that the deceased and the two others were hit by some of those shots. The appellant’s defence was that the shots were fired in self-defence.


The State’s case, as described in the judgment, initially sought to show that the shots were not fired in self-defence, that the persons at whom the appellant fired were unarmed, and that the appellant had deliberately set out to kill them. The State alleged a motive of reprisal linked to gang rivalry, with the appellant being associated with the Americans gang and the deceased and companions with the Hard Livings gang. The evidence on the central factual question of self-defence came primarily from gang members on the State side and from the appellant, and thus did not involve independent witnesses; the trial court faced difficulties in assessing credibility.


As the trial progressed, the trial judge became concerned that an anterior question—whether the appellant acted in self-defence at all—had received less attention from the State than the question whether, on the appellant’s version, he had exceeded the bounds of self-defence. The trial judge therefore explored issues that bore on whether the appellant’s account could be accepted as reasonably possibly true, including objective matters such as the location of gunshot wounds sustained by the deceased and the complainants in the attempted murder counts.


The special entry recorded that, after cross-examination of the appellant by the State and before re-examination, the presiding judge engaged in extensive and repeated questioning of the appellant, which occupied part of one day and part of the next. After the defence case had closed, the court ordered and conducted an inspection in loco mero motu, and thereafter the appellant was recalled and questioned further, including on matters related to observations made during the inspection in loco.


One factual feature relied upon by the SCA was that, at the time the trial judge suggested the inspection in loco, no objection was raised. Another was that the inspection in loco was prompted by confusion about the layout of the scene, exacerbated by the absence of a satisfactory plan and witnesses’ difficulties in describing it.


The trial judge also called the investigating officer to address an allegation that emerged shortly before re-examination: the appellant suggested that he had pulled the trigger once but that the firearm continued firing as long as the trigger was held back, while also disavowing that the pistol was automatic in the machine-gun sense. The court treated this as a matter the trial judge was entitled to clarify.


The appellant’s recall after argument was treated as factually limited in purpose. The SCA accepted that it was for the limited purpose of addressing certain aspects arising from the inspection in loco which occurred only after the appellant had previously completed his testimony, particularly relating to the route the appellant said he took when fleeing and how the direction of that route, as clarified on inspection, bore on the competing versions.


3. Legal Issues


The central legal question was whether the trial judge’s interventions—taken cumulatively—constituted an irregularity in the conduct of the trial, in the sense recognised in criminal procedure, by causing the judge to descend into the arena and become (or appear to become) a partisan combatant, thereby undermining the fairness of the proceedings.


A further legal question, contingent on establishing an irregularity, was whether any such irregularity resulted in a failure of justice and thus vitiated the convictions and sentences, either automatically because of its fundamental nature or because of demonstrated prejudice to the appellant.


The dispute primarily concerned the application of legal standards to procedural facts: the extent, timing, and manner of judicial questioning; the holding of an inspection in loco mero motu; and the recall of the accused after argument. It also involved an evaluative judgment about whether the conduct was objectively fair and whether any perception of partiality was justified.


4. Court’s Reasoning


The SCA began by emphasising that, due to the procedural posture, its enquiry was limited to examining the trial judge’s conduct to determine whether there was an irregularity and, if so, whether there had been a failure of justice. The court treated the complaint as one aimed at the judge having descended into the arena, assessed through the cumulative effect of the interventions.


The court located the trial judge’s powers and duties within longstanding principles of criminal adjudication. Relying on authority, it reiterated that a criminal trial is not a game and that a judge is not merely an umpire but an administrator of justice. It noted that statutory provisions empower and, in certain circumstances, oblige judicial officers to subpoena, examine, recall, and re-examine witnesses where their evidence appears essential to a just decision. The court treated the corresponding provisions of the Criminal Procedure Act 51 of 1977 as materially identical to the earlier statutory basis discussed in the cited authority, and it referred to the express statutory power to order an inspection in loco mero motu.


At the same time, the SCA accepted that the mere existence of these statutory powers does not immunise their exercise from being characterised as irregular; appellate courts have set aside convictions for irregular questioning in appropriate cases. The SCA also stressed, however, that there are limits on appellate interference with the bona fide exercise of a judicial discretion, and that an appellate court should be slow to substitute its own hindsight-informed view for the trial court’s assessment of whether particular steps were essential to a just decision at the time.


The SCA recognised a potential tension between a judge’s duty to ensure justice and the need to avoid conduct that could be perceived as undue partisanship. It acknowledged that judicial officers must strive to maintain the appropriate balance between undue passivity and undue intervention.


Applying these principles to the facts, the SCA considered the context that made the trial judge’s interventions more active than usual. The critical issue was self-defence, and the evidence came from witnesses whose credibility was not readily resolved by independence. The SCA accepted that certain objective features—particularly the location of gunshot wounds—could assist in evaluating whether the appellant’s claim of being threatened was reasonably possibly true. It held that it was understandable for the trial judge to explore an issue that neither counsel had canvassed fully, and it affirmed that the trial court was not bound by the State’s forensic emphasis and could properly explore an anterior question relevant to guilt.


The SCA also accepted the legitimacy of the trial judge’s decision to call the investigating officer to address the appellant’s account of the firearm’s functioning, treating this as a reasonable attempt to clarify a potentially material assertion that arose during the appellant’s evidence.


Regarding the inspection in loco, the SCA treated the decision as justified by the importance of the scene’s layout and the confusion created by inadequate descriptions and the absence of a proper plan. It held that the inspection could not be faulted and observed that, had it occurred earlier at a party’s instance, some judicial questioning might have been unnecessary.


The SCA then examined the more pointed complaints about the manner of questioning, noting that length alone is neutral and that the key is whether questioning becomes belligerent, intimidating, confusing, or harassing. It held that it is not irregular for judicial questioning to elicit answers damaging to an accused, and that fairness is not measured by whether the answers assist the defence. The SCA concluded that the manner of questioning was not unfair, even though the judge sometimes made assertions and invited comment rather than asking neutrally framed questions. It was material to the SCA’s assessment that the assertions in question were said to be based on what was common cause or objectively indisputable, notably the wound locations, and that the appellant was not found to have been cowed, having responded vigorously.


The court addressed the appellant’s reaction that he could not dispute “die hof se saak” by stating that this was not an appropriate inference from what was put to him; it emphasised that the trial judge immediately clarified that the court was not intent on proving “its case” and that the appellant’s discomfort lay in the difficulty of reconciling his version with objective wound evidence.


The SCA further considered claims of repetitive questioning. It accepted that the trial judge sometimes retraversed issues, but interpreted this as an effort to obtain clarity or provide context rather than to entrap the appellant into contradictions.


Finally, on the recall of the appellant after argument, the SCA acknowledged that this is rare and should not lightly be done because it risks being perceived as an attempt to fill gaps in the State’s case after deficiencies are highlighted. The SCA accepted that such a perception could genuinely arise. However, on the facts, it held that the recall was for the limited purpose of enabling the appellant to deal with aspects arising from the inspection in loco conducted after his earlier testimony. It reasoned that it would have been wrong for the trial court to rely on inspection observations potentially material to a critical issue without giving the appellant an opportunity to address them in evidence.


Considering all of these features cumulatively, the SCA was not persuaded that the trial judge’s conduct amounted to an irregularity.


5. Outcome and Relief


The Supreme Court of Appeal held that the trial judge’s conduct did not constitute an irregularity and therefore that the appeal could not succeed on the special entry.


The appeal was dismissed. The judgment as provided did not set out a separate costs order, and the operative order was that the appeal failed and was dismissed.


Cases Cited


Rex v Hepworth 1928 AD 265.


S v Rall 1982 (1) SA 828 (A).


Legislation Cited


Criminal Procedure and Evidence Act 31 of 1917, section 247.


Criminal Procedure Act 51 of 1977, sections 167, 169 and 186.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that, assessed cumulatively and in context, the trial judge’s extensive questioning of the accused, the calling of a witness to clarify an issue that arose in the accused’s evidence, the ordering of an inspection in loco mero motu, and the recall of the accused after argument to address matters arising from the inspection in loco, did not amount to an irregularity. Consequently, there was no basis to find a failure of justice on the special entry, and the appeal was dismissed.


LEGAL PRINCIPLES


A criminal trial is not to be approached as a game; the presiding judge is an administrator of justice and not a mere umpire, and may actively control proceedings to ensure justice is done, within proper limits.


In terms of statutory powers and duties reflected in the Criminal Procedure Act 51 of 1977, a court may subpoena, examine, recall, or re-examine witnesses where their evidence appears essential to the just decision of the case, and may order an inspection in loco mero motu.


The existence of statutory powers to question or recall witnesses, or to order an inspection in loco, does not mean that their exercise can never constitute an irregularity; appellate courts may set aside convictions where judicial questioning or intervention becomes improper. However, appellate restraint is required where the trial court has exercised a bona fide discretion, and a court of appeal should be slow to substitute its hindsight-informed assessment for the trial court’s contemporaneous judgment on what justice required.


Whether judicial intervention amounts to an irregularity depends on degree and cumulative impact, including the manner, tone, timing, and content of questioning, and whether the conduct can fairly be seen as intimidation, harassment, or partisanship. Legitimate judicial questioning is not rendered irregular merely because it elicits answers damaging to an accused or because it poses difficult questions.


The recall of an accused after the conclusion of argument is a step that should not lightly be undertaken because it may create a perception of partiality or of filling gaps in the prosecution case; where such recall occurs, it may nonetheless be justified where it is directed to allowing the accused to address material observations arising from steps (such as an inspection in loco) that occurred after the accused had completed testimony, so that the court does not rely on such observations without giving an opportunity to respond.

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[1997] ZASCA 48
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S v Gerbers (571/95) [1997] ZASCA 48; [1997] 3 All SA 61 (A) (26 May 1997)

Case No 571/95
In the matter between:
RODERICK GERBERS
Appellant
and
THE STATE
Respondent
CORAM:
SMALBERGER, MARAIS et( SCHUTZ JJA
HEARD:
20 May 1997
DELIVERED: 26 May 1997
J U D G M E N T
MARAIS JA/
2
MARAIS JA:
Appellant was convicted in the Cape of Good Hope Provincial Division on one count of murder and two counts of attempted murder. He
was sentenced to an effective term of imprisonment of 23 years. He was also convicted of being in unlawful possession of a firearm
and ammunition and sentenced to a further 2 years imprisonment. An application for leave to appeal against the convictions of murder
and attempted murder and the sentences imposed was refused by the trial judge (Louw AJ) but a special entry was made. Hence this
appeal.
The application for the making of the special entry was
based upon the following grounds:
"1. The learned judge committed irregularities during the proceedings in that the learned judge descended into the arena
3
1.1
after the cross-examination but prior to the re-examination of the accused, by questioning the accused in a manner that was, having
regard to his judicial functions, impermissible or excessive and in some cases, a repetition of questions, bordering on cross-examination;
1.2
by further lengthy questioning of the accused for a period the following day prior to his re-examination in a manner that was, having
regard to his judicial functions, impermissible or excessive;
1.3
after argument had been delivered by both the State and the defence, and whilst judgment was being awaited, despite objections from
both the State and the defence, the learned judge recalled the accused and further questioned him, which in the circumstances of
the case and the late stage of the proceedings, was both inappropriate and impermissible, was a repetition of earlier questioning
constituting cross-examination, and employed information arising from an inspection in loco (called for by the learned judge after
the accused had already completed his testimony) in a manner prejudicial to the accused.
2. The above irregularities tend to indicate that the learned judge conducted the trial in a manner that was not in accordance with
justice, clouded his impartiality, precluded him from detachedly or objectively appreciating and adjudicating upon the issues, impaired
the quality of his views on the issues, including those relating to
4
the demeanour and credibility of the witnesses and the accused, and the probabilities of the competing versions."
In the result the special entry was made by the learned trial judge in the
following terms:
"1. Nadat die beskuldigde dear die Staatsadvokaat ondervra is het die voorsittende regter uitgebreide en veelvuldige vrae aan
die beskuldigde gestel.
2.
Gemelde ondervraging het gedeelte van een dag en 'n
gedeelte van 'n daaropvolgende dag in beslag geneem.
3.
Nadat die beskuldigde sy saak gesluit het, het die Hof
mero
motu
'n inspeksie ter plaatse gelas en onderneem en daarna
is die beskuldigde deur die Hof na die getuiebank herroep.
4.
Nadat die beskuldigde aldus na die getuiebank herroep is,
het die voorsittende regter die beskuldigde verder ondervra
welke ondervraging ook geslaan het op die waarnemings
wat gemaak is tydens die inspeksie ter plaatse."
Our consideration of this appeal is therefore limited in ambit
and confined to an examination of the trial judge's conduct with a view
to determining whether or not it was irregular and, if so, whether there
5
has been a failure of justice. In sum, the complaint about the trial judge's conduct is that he wrongly descended into the arena and
became a combatant on the State's behalf or gave appellant good cause to reasonably believe that he did so. The specific instances
cited to support that general charge are those set out in the application for the making of the special entry. It is of course the
cumulative impact of the various initiatives taken by the learned trial judge which has to be assessed.
Counsel for appellant invited us to compare the respective participation in the questioning of appellant of his own counsel (29 pages
of the record inclusive of some interventions and questions by the Court), of counsel for the State (68 pages of the record inclusive
of limited interventions and questions by the Court), and of the trial judge (27 pages of the record). He also drew attention to
the fact that the trial
6
judge's prolonged questioning of appellant occurred before he had been re-examined. He relied too upon the fact that after closing
arguments had been presented by both counsel for the State and counsel for appellant and the Court had reserved judgment, the trial
judge reconvened the Court, recalled appellant and questioned him yet again (the questioning occupying 5 pages of the record). The
trial judge's decision, taken mero motu, to hold an inspection in loco after appellant had been extensively questioned by the trial
judge and had closed his case was also cited as a further example of what was submitted to be excessive intervention in the case
by the trial judge.
It was contended that the trial judge's conduct exceeded the reasonable bounds of what a judicial officer may legitimately and properly
do in seeking to do justice and led to the justified perception
7
that he was not "open-minded, impartial and fair". It was submitted that
the "frequency, length, time, tone and content" of the trial judge's
questioning of appellant "intimidated and disconcerted the appellant and
unduly influenced the quality and nature of his replies and affected
adversely his demeanour and impaired his credibility". Examples were
cited of what were said to be unfairly repetitive returns by the trial judge
to issues which had already been extensively canvassed and of what were
said to be "conclusions" put to appellant which were disconcerting to him
and resulted, for example, in him saying "Ek kan mos nie die hof se saak
betwis, sien my Edelagbare". All this, so it was argued, "precluded the
Court from detachedly or objectively appreciating and adjudicating upon
the issues before it and impaired the quality of the Court's views on the
issues including those relating to the demeanour and credibility of the
8
witnesses for the State and the appellant, and the probabilities of the competing versions". In summation, it was contended that
the trial judge's conduct constituted an irregularity of so material and fundamental a kind that the trial was vitiated by it, thus
necessitating a setting aside of the convictions and sentences irrespective of whether or not the evidence establishes that they
were justified. It was argued as an alternative that if any irregularity which might be found to have been established was not of
the kind just mentioned, appellant had in fact been prejudiced and that it cannot be said that if the irregularity had not occurred,
he would inevitably have been convicted.
Counsel for appellant disavowed suggesting that it is irregular per se for a judge to question an accused while he or she testifies,
or to recall an accused to the witness stand for further
9
questioning, or to order mero motu the holding of an inspection in loco. Nor did he contend that the doing of any of these things
by a trial judge would provide per se any basis for a justifiable perception of bias or of a closed mind or would amount per se to
an impermissible descent into the arena of forensic conflict between the State and an accused. What he did say was that it is a question
of degree and what the cumulative impact is of the doing by the trial judge of all these things in the particular manner and at the
particular time at which he did them. I agree.
The trial judge's interventions must be assessed in the light of basic principles of the administration of justice in the sphere of
prosecution of crime and any relevant statutory provisions. Time-worn these basic principles may be, yet they remain as valid today
as they
10
were when first propounded many years ago.
"A criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side, and a judge's
position in a criminal trial is not merely that of an umpire to
see that the rules of the game are observed by both sides. A judge is an
administrator of justice, he is not merely a figure-head, he has not only
to direct and control the proceedings according to recognised rules of
procedure but to see that justice is done". So said
Curlewis JA
in
Rex
v Hepworth
1928 AD 265
at 277 when dealing with sec 247 of the
Criminal Procedure and Evidence Act 31 of 1917 which provided that:
"The Court may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness,
or may recall and re-examine any person already examined; and the Court shall subpoena and examine or recall and re-examine any person
if his evidence appears to it essential to the just decision of the case."
11
The learned judge went on to say (at 278):
"The discretion and power under sec 247 can be exercised by a judge, whether the effect thereof be in favour of the Crown or
the accused person. I see no reason to distinguish between the exercise of that power on behalf of the accused or of the Crown, provided
the power is exercised for the purpose of doing justice as between the prosecution and the accused."
Sections 167 and 186 of the currently applicable
Criminal Procedure Act 51 of 1977
confer identical powers and impose identical duties upon a judicial officer. What was said in
Hepworth's
case is thus no less applicable to those provisions.
Sec 169
of Act 51 of 1977 specifically invests a court with the power mero motu to hold an inspection in loco.
It does not follow of course, from the mere existence of these discretionary powers, that it can never be said that a trial judge
who exercises them has done so "irregularly" as that word is understood
12
in the jurisprudence of criminal procedure. The many cases in which a court of appeal has set aside a conviction on the ground of
irregular questioning by a judicial officer bear testimony to that. Nor does it follow from the mere existence of a positive duty
to exercise those powers in circumstances where it appears essential to the just decision of the case, that a trial judge's conclusion
that the circumstances were indeed such, is unassailable in a higher court and that, no matter what the circumstances may have been,
his carrying out of what he perceived to be his duty can never constitute an irregularity. On the other hand, it is necessary to
remind oneself that there are well-known limits to the power of a court of appeal to gainsay the bona fide exercise by a trial court
of a judicial discretion vested in it. As for the conclusion of a trial court that it is duty bound to exercise the powers under
consideration,
13
there too I think that a court of appeal should not lightly substitute its own opinion, reached with the benefit of hindsight, for
that of the trial court which had to reach its conclusion that the exercise of the particular power was essential to the just decision
of the case upon the evidence which had thus far been placed before it and without the benefit of knowing what, in the result, the
evidence given by persons whom it decided to call would be.
There is obviously potential tension between the need to fulfil the role of a judicial officer as described in
Hepworth's
case (supra) and the need to avoid conduct of the kind which led to the characterising of the judicial officer's behaviour in cases
such as
S v Rall
1982 (1) SA 828
(A) as irregular and resulting in a failure of justice. Nonetheless, it remains encumbent upon all judicial officers to constantly
14
bear in mind that their bona fide efforts to do justice may be misconstrued by one or other of the parties as undue partisanship and
that difficult as it may sometimes be to find the right balance between undue judicial passivism and undue judicial intervention,
they must ever strive to do so.
In the present case the problem which arose and which led to the trial judge playing a more active role than is usual was this. It
was common cause that appellant had fired a number of shots in the direction of the deceased and the two other persons who were hit
by some of those shots. Appellant maintained that the shots had been fired in self-defence. Initially, the State sought to prove
that they were not fired in self-defence, that the deceased and those in whose direction appellant fired the shots were unarmed,
and that appellant had
15
deliberately set out to kill the persons at whom he fired the shots. The
motive, so the State alleged, was reprisal by appellant, a member of a
notorious and violent gang known as the Americans, against the deceased
and the others who were with him at the time of the shooting, all of
whom were members of an equally notorious and violent gang known as
the Hard Livings. The critical issue in the State's case, namely, whether
the shots had been fired in self-defence, turned essentially on what was
to be made of evidence emanating, on the one hand, from State witnesses
who were members of the Hard Livings gang, and on the other, from
appellant. None of these persons was an independent witness and the
credibility of all of them was potentially suspect and difficult to
determine. A further problem which faced the Court o quo was that as
the trial progressed counsel for the State tended to concentrate upon
16
seeking to show that appellant had reacted unreasonably to the threat to his life and safety which he alleged existed, and that he
had exceeded the reasonable bounds of self-defence in shooting at the deceased and the other persons in the group. The anterior question,
namely, whether it was reasonably possibly true that appellant did in fact respond to any perceived or actual threat, received somewhat
less attention from counsel for the State. Indeed, when argument came to be presented, counsel for the State did not contend that
appellant's allegations in that regard could not reasonably possibly be true but submitted instead that on his own version appellant
had exceeded the reasonable bounds of self-defence in reacting as he did. The Court a quo was of course not bound to see the matter
in the same light nor was it precluded from exploring by appropriate questioning and the calling of witnesses itself the anterior
17
question of whether appellant acted in self-defence at all.
There was some reliable evidence which could potentially throw light on that question, namely, the evidence concerning the location
of the gunshot wounds sustained by the deceased and the two complainants in the charges of attempted murder. If the location of all
or most of them showed that the deceased and the two complainants had their backs to appellant when the shots were fired, that could
cast doubt upon appellant's assertion that he felt driven to respond to a potential attack with which he was threatened by them.
Neither counsel for the State nor counsel for appellant had canvassed the issue. That the trial judge decided to explore that avenue
more fully is quite understandable in the circumstances.
The same applies to the trial judge's decision to call a
18
witness in order to ascertain whether or not appellant's version as to why
so many shots were fired by him might reasonably be true. Appellant
had not claimed initially that he had only pulled the trigger once. Just
prior to his re-examination and in answer to questions put by the trial
judge, he claimed that he had only pulled the trigger once but that the
pistol operated in such a way that for as long as the trigger was held in
the pulled position, shots would continue to be fired from it. Yet he
disavowed saying that it was an automatic pistol which could be fired in
the manner in which a machine gun is fired. In these circumstances the
calling by the trial judge of the investigating officer to respond to this
allegation cannot be criticised. As for the inspection in loco,
no objection was raised at the time to the Court's suggestion that one be
held. The layout of the locale was important to a proper consideration
19
of the competing versions of what had happened. Considerable
confusion regarding the layout of the locale had arisen during the trial as
a consequence of no satisfactory plan having been placed before the
Court and the somewhat inept attempts by the witnesses to describe it.
In the circumstances, the trial judge's decision to hold an inspection in
loco cannot be faulted. Indeed, had it been asked for earlier by one or
other of the parties and held, a good deal of the questioning by the trial
judge of which appellant now complains would not have been necessary.
Deserving of closer consideration are some of the other
complaints about the conduct of the trial by the learned trial judge. It is
so that the questioning of appellant by the trial judge was lengthy, but
appellant's answers were also often lengthy and length alone is a
relatively neutral factor in an enquiry such as this. What is more
20
important is the manner in which such questioning took place. It goes without saying that objectively legitimate questions may be
put so belligerently or intimidatingly or so repetitively or confusingly as to amount to judicial harassment and therefore an irregularity.
But that does not mean that a court may not ask an accused questions which he may find it difficult to answer without doing damage
to his case. Nor is a perception of partiality justified merely because a court's questions have the result that answers damaging
to the accused emerge.
In this case 1 do not think it can be said that the manner in which the trial judge questioned appellant was unfair. It is so that
the trial judge sometimes made assertions and invited comment rather than formulating an appropriate question in a neutral manner
but it does not appear that appellant was cowed by that and he did indeed respond, and
21
respond vigorously, to the invitations to comment.
This is not a case in which the assertions made by the trial
judge and put to appellant rested merely upon allegations made by other
witnesses whose credibility could only properly be assessed after all the
evidence had been heard. It is a case in which the assertions were a
recapitulation of what was common cause or objectively indisputable,
namely, the location of the gunshot wounds on the bodies of the
deceased and the two complainants in the attempted murder charges.
Appellant's response on one such occasion that he could not dispute "die
hof se saak" was not an appropriate or justified response. Nothing which
had been put to him by the trial judge entitled him to conclude that the
Court was intent upon proving "its case" against him and the trial judge
immediately made it clear to appellant that it was intent upon no such
22
thing. The true reason for appellant's discomfiture was plainly his inability to reconcile his version of what had occurred with the
location of the gunshot wounds.
It is also true that the trial judge sometimes traversed repetitively aspects of the evidence which had already been explored but
his object in so doing appears to have been to get clarity in his own mind as to precisely what had been said, or to provide the
context for a particular question which he wished to put, rather than to entrap appellant in contradictions.
The recall by a court of an accused to the witness-box for further questioning after the conclusion of argument is no doubt something
which is relatively rare and which should not lightly be resorted to. The reasons are obvious: once lacunae or inadequacies in
23
the State's case have been identified and relied upon in argument by
counsel for an accused, steps taken mero motu by a Court at that belated
stage of the proceedings to fill the lacunae or to remedy the inadequacies
are likely to be seen as indicative of undue partiality towards the cause
of the State. Even if that perception is wrong, it is one which could
genuinely arise in the mind of an accused. Plainly, that is to be avoided.
In the present case it might at first blush seem debatable whether it was
wise of the trial judge to have recalled appellant at so late a stage and
after counsel for the State had not sought to argue that appellant's
evidence that he was threatened by the deceased and his compatriots was
false beyond reasonable doubt, for it may have given appellant the
impression that the trial judge intended to make an attempt to extract
evidence from him which would show that he was not so threatened.
24
However, the fact of the matter is that he was recalled for the limited purpose of dealing with certain aspects of the inspection
in loco which had taken place only after he had left the witness-box when he testified previously. The questions then put to him
on his recall were concerned with the route he had taken when fleeing (as he put it) from the Hard Livings group he encountered.
The precise direction of that route was only made known at the inspection in loco and it indicated prima facie that instead of it
taking appellant away from them, it might have enhanced the prospect of his encountering them again, particularly one of them who
according to him had a firearm. That admittedly had a bearing on the issue of whether appellant was the instigator of an attack or
the potential victim of one, but the inspection in loco had been conducted without any objection by appellant's counsel and, observations
25
having been recorded which could have a material bearing on a critical issue in the case, it would have been wrong for the trial court
to rely upon them to reject appellant's version without giving him an opportunity of dealing with them in the witness-box.
All things cumulatively considered, I am unpersuaded that the conduct of the trial judge amounted to an irregularity. The appeal must
therefore fail and be dismissed. It is so ordered.
R M MARAIS JUDGE OF APPEAL
SMALBERGER JA) CONCOR SCHUTZ JA)

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