About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2011
>>
[2011] ZAWCHC 71
|
|
D.G.B v M.J.B (A22/2010) [2011] ZAWCHC 71 (11 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: A22/2010
In
the matter between:
D
G B
…............................................................................................................
Appellant
Versus
M
J B
…........................................................................................................
Respondent
JUDGMENT
DELIVERED ON 11 MARCH 2011
Allie.
J
[1]
This is an appeal against the decision of the Magistrate on 27
August 2009 in which the appellant's application for an increase
in
maintenance for the parties' 2 minor children was refused.
[2]
In the court a
quo
the
respondent had legal representation while the appellant appeared in
person. Before us on appeal the appellant once again appears
in
person and the respondent had legal representation up until 4 March
2011 when his legal representatives withdrew and so he
is also
before us in person.
[3]
Both parties were given an opportunity to address us on 2 issues
namely, whether the matter should be struck from the roll
and on the
conduct of the Magistrate in the court
a
quo.
[4]
The transcription before us commences on page 3 with the date of 27
February 2009 after the maintenance officer had already
started
cross-examining the appellant for some time. The transcription
commences with a question put to the appellant by the
maintenance
officer referring to medical expenses. It is clear that the
proceedings were not transcribed from its inception.
[5]
Despite numerous requests to the appellant to supplement the
transcription so that we could have a full transcription of the
proceedings, we have not been furnished with the full transcription.
In the respondent's heads of argument, reference is made
to numerous
parts of the record that were not transcribed and placed before us.
These include "exhibits" to which reference
is made in the
court a
quo.
In
his heads of argument, the respondent indicated that the
transcription that his legal representative was given was not
paginated.
The respondent also indicated that the appellant refused
to furnish his legal representative at the time with her heads of
argument
The respondent accordingly request that the appeal be
struck off the roll with costs and that it not be re-enrolled until
such
time as the appellant has remedied the defects in the appeal
record and the appeal is ripe for hearing.
[6]
The appellant addressed a letter to us indicating that although the
transcription commences on page no. 3. nothing was omitted.
She went
on to state that there was a problem with the recording and that
what we have before us was all that was available.
However in the
second paragraph of her letter she stated that she had asked the
transcription services to obtain a disc and re-do
that section of
the record. She indicated that the Maintenance Court had the disc
ready and that she would have it transcribed
urgently.
[7]
To the extent that this is a matter involving child maintenance,
clearly this court, as the upper guardian of all minors,
should
ensure that the minor children's interest are protected. We are
accordingly not inclined to strike this matter from the
roll.
[8]
Upon
a perusal of the record albeit incomplete, we came across 17
transcribed pages of questions posed to the respondent by the
court.
During the course of the court a
quo
posing
those questions to the respondent, it became clear that the
Magistrate had acted irregular, in as much as, he launched
a
scathing attack upon the respondent and his legal representative.
8.1.
What follows are a few quotations; Record page 657 at lines 7 - 9
the Magistrate states the following:
"So
let's not waste time please. There is a - I don't think you are a
very good economist. In fact I think you are a very
poor one."
8.2.
Record page 657 on line 10 the Magistrate says the following:
"And
there is a wonderful little song. I don't believe in if any more. If
is an illusion."
At
this juncture the Magistrate appears to be singing.
8.3.
Record page 658 at lines 15 and following: 7
want
a good explanation for this'
8.4.
Record page 660 at lines 12 and following:
'That
actually makes it worse because now I don't believe you at all.
Because you are giving now two different versions as to
the one you
gave right in the beginning as to the one you gave just now and now.
Three different versions. Come on, Dr B. What
will the court think?
What will Sherlock Holmes determine? He is lying Am I right?"
8.5.
Record page 665 at line 7:
"So
then why do you say it is in their best interests to stay there but
I am not going to pay for it. Did you say so?''
Further
on the same page at lines 21 and following:
"Okay.
This I want now because I have no evidence of that Okay. What is
your arrangement? Your arrangement - ja, your advocate
is frowning
very deeply there and I don't think it is very good because they say
you get bad skin from frowning too much."
8.6.
Record page
669
at
lines 21 and following:
'Okay.
Dr B, I am now going to tell you and Mrs B that I am not going to
change the order as per 2000 and Mrs B has started her
evidence
yesterday stating that the school wanted me to make a decision so
that she can take the children out of the school because
she cannot
pay it. What do you have to say about that? Is that fine? Can I tell
Mrs B to take the children out asap because I
am not going to rule
in her favour regarding schooling?'
The
respondent replied as follows;
"That
is a hypothetical question."
8.7.
Record at line 5 on page 670:
'No
it is not I am giving you the facts. I am not going to rule on
schooling. I am not going to change the order..."
[9]
It is an essential part of our judicial system that a judicial
officer should remain impartial and not become involved in
the
questioning of any one witness to the extent where it becomes clear
that he or she is biased, in favour or against any particular
party.
[10]
In the case of S v Msithing 2O06 (1) SACR 266 (N) the court was
concerned in a criminal matter with a judicial officer that
had
indicated clearly that he disbelieved the accused and went on to
interrogate the accused. In that matter the court found
that the
irregularity was of such a fundamental nature that a reasonable
observer would perceive that the integrity of the judicial
process
must be called into question.
[11]
In the case of S v Maseko 1990 ft) SACR 107 (A) the court was
concerned with a trial court judge who had clearly become impatient
with the accused and who had questioned the accused in such a manner
that he had created the impression that he was biased and
had
pre-decided issues which should only be decided at the end of the
trial. The appeal court found in that matter that while
a trial
judge is entitled and often obliged to ask questions of a witness
during a trial, he should always guard against any
conduct which
could create the impression that he was descending into the arena of
conflict.
[12]
In this matter the court's questioning of the respondent leaves us
in no doubt that the Magistrate had pre-decided the matter
as he
said so in express terms. The fact that the Magistrate at the stage
where he was about to deliver the judgment apologised
to the
respondent as he considered that his earlier questioning may have
been aggressive does not alter the irregularity of the
proceedings
[13]
There is a very cogent reason why a judicial officer should not
descend into the arena. A judicial officer must at all times
remain
un-biased and objective if he or she wants to acquit himself or
herself adequately of the task of adjudicating without
fear or
favour.
[14]
The appellant brought the application for the substitution of the
existing maintenance order in terms of
section 6(1)
(b) of the
Maintenance Act 99 of 1998
on 7 March 2007. The matter was
eventually set down for the trial to commence on 21 April 2008. The
matter was postponed on that
day and several times thereafter for
the parties to provide a list of documents that they each require
from the other and for
legal representation.
[15]
We are not certain when the trial eventually commenced but the
incomplete transcription of the trial commenced on 27 February
2009.
Judgment was delivered on 27 August 2009. The trial continued over
many days which spanned a period of at least 6 months.
[16)
The Magistrate allowed extensive cross examination of the appellant,
a substantial amount of which was irrelevant and argumentative.
By
the time the respondent was being re examined, the Magistrate had
clearly reached the end of his tether, hence his obvious
annoyance
with the respondent.
[171
A judicial officer is not a silent arbiter to such an extent that he
or she must remain completely uninvolved in the conduct
of a trial.
He or she must clearly manage a trial by not allowing unduly lengthy
cross examination which is irrelevant and which
is designed to
badger a witness Unfortunately the magistrate did not manage the
cross examination and admonish the witnesses
to answer the questions
pertinently.
[18]
In
Take
and Save Trading CC and Others v Standard Bank of SA Ltd
2004
(4) SA 1
(SCA) at para 2-4 Harms JA said:
[2]
Everyone is entitled to a fair trial and that includes the right to
a hearing before an impartial adjudicator This common-law
right is
now constitutionally entrenched....
[3]
That is one side of the coin. The other is this:
'A
criminal tnal 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 thai 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.' (R v Hepworth
1928
AD 265
at 277
per
Curlewis
JA.)
The
same applies to civil proceedings: a Judge is not simply a 'silent
umpire'. (Greenfield Manufacturers (Temba) (Ply) Ltd v
Royton
Electrical Engineering (Pty) Ltd
1976
(21 SA 565
(A)
at
570E - F.)
A
Judge 'is not a mere umpire to answer the question "How's
that?'" Lord Denning once said:
Fairness
of court proceedings requires of the trier to be actively involved
in the management of the trial, to control the proceedings,
to
ensure that public and private resources are not wasted, to point
out when evidence is irrelevant, and to refuse to listen
to
irrelevant evidence. A supine approach towards litigation by
judicial officers is not justifiable either in terms of the fair
trial requirement or in the context of resources. One of the oldest
tricks in the book is the practice of some legal practitioners,
whenever the shoe pinches, to withdraw from the case (and more often
than not to reappear at a later stage), or of clients to
terminate
the mandate (more often than not at the suggestion of the
practitioner), to force the court to grant a postponement
because
the party is then unrepresented. Judicial officers have a duty to
the court system, their colleagues, the public and
the parties to
ensure that this abuse is curbed by, in suitable cases, refusing a
postponement. Mere withdrawal by a practitioner
or the mere
termination of a mandate does not, contrary to popular belief,
entitle a party to a postponement as of right. (Jones
v National
Coat Board
[1957] EWCA Civ 3
;
[1957]
2 All ER 155
(CA) at 159B)
[4]
A balancing act by the judicial officer is required because there is
a thin dividing line between managing a thai and getting
involved in
the fray. Should the line on occasion be overstepped, it does not
mean that a recusal has to follow or the proceedings
have to be set
aside. If it is, the evidence can usually be reassessed on appeal
taking into account the degree of the that court's
aberration. (R v
Roopsingh
1956
(4) SA 509
(A)
at
515B -H; Hamman v Moolman
1968
(4) SA 340
(A)
at
344H; Rondalia Versekeringskorporasie van SA Bpk v Lira
1971
(2) SA 586(A)
at
590H; Solomon and Another NNO v De Waal
1972
11) SA 575
(A)
at
581 A.)"
[19]
The parties clearly have a history of acrimony which is reflected in
the way they conducted the trial and in the preceding
disputes
between them that have been brought to court. Regrettably it is the
best interests of the children which have been compromised
by the
hostility between the parties.
[20]
I am of the view that the interests of the minor children should be
protected and advanced by affording them legal representation
at the
trial To this end the Legal Aid Board of South Africa should assist
the children by appointing legal representation for
them
It
is order that:
This
matter be referred back to the magistrates court for it to commence
de
novo
before
a new magistrate.
Such
proceeding shall commence within 30 days from the date of this
order.
The
Legal Aid Board of South Africa shall consider an application for
legal aid brought on behalf of the children in terms of
section
28(2) of the Constitution, within 7 days of this order
The
appellant is ordered to do all things necessary to facilitate the
completion of the necessary application and provide all
the
supporting documents required by the Legal Aid Board.
At
the realisation of the trial, the magistrate presiding shall
determine whether either or both of the parties should pay all
or a
contribution towards the legal costs incurred by the Legal Aid
Board in providing the necessary legal representation to
the minor
children
No
order as to costs is made.
This
order will be directed to the Chief Magistrate. Wynberg for the
allocation of the case to a Magistrate.
ALLIE, J
I
agree
SALDANHA, J