South Africa: High Courts - Gauteng

In the matter between:

ZONDO ROBERT SKUTA                                                    Appellant

and

THE STATE                                                                       Respondent

SALDULKER, J:

[1] Judgment in this matter has been given already. Parties were advised that the written reasons would be given later. What follows are the reasons.

[2] The appellant was convicted of housebreaking with the intent to steal and theft and sentenced to a period of 6 years imprisonment. The appellant appeals against both sentence and conviction. The appellant was unrepresented in court.

[3] Counsel for the appellant Mrs Havenga raised the following points in limine:

3.1     

The learned regional magistrate committed several irregularities the cumulative effect of which was so serious that the proceedings had to be set aside in to.

3.2     

The learned regional magistrate descended into the arena and misdirected himself in not conducting the trial in a manner manifesting his open mindedness, his impartiality and his fairness.

[4] A perusal of the record of the proceedings in the court a quo indicates the following:

4.1     

In the evidence of Ngobeni the complainant:

In regard to the above evidence the magistrate clearly descended into the arena in that he and not the prosecutor led evidence of the complainant. The complainant’s evidence in chief is contained in eight pages of the record. Of these eight pages five pages contain questions by the learned regional magistrate of the complainant including leading questions.

The learned regional magistrate on several occasions allowed hearsay evidence without even ascertaining whether the relevant persons would be called.

Mrs Maduna and the vendor lady were never called as witnesses and therefore this evidence was inadmissible.

The learned regional magistrate did not allow the appellant to cross-examine the complainant fully. Throughout the cross-examination of the appellant and the complainant the regional magistrate interrupted the appellant. It is clear that when the appellant tried to answer complainant’s questions the regional court magistrate answered all these questions by repeating the evidence of the complainant.

The regional magistrate does not appear to have assisted the unrepresented appellant in his cross-examination.

From the evidence it appears that the regional court magistrate started questioning the appellant at the time that the appellant was supposed to cross-examine the complainant.

4.2     

In the evidence in Nawoke:

The regional court magistrate descended into the arena by leading this witness.

4.3     

In the evidence of Maduna:

The court again descended into the arena by leading this witness.

The appellant did not ask this witness any questions whatsoever although it was clear from his subsequent evidence that the appellant was disputing several aspects of Maduna’s evidence (for example bringing a TV and hi-fi to Maduna’s house). The learned regional magistrate did not assist appellant at all in cross-examining this witness nor in putting his version to him.

[5] It is clear from the record that during the complainant’s examination in chief the court a quo questioned the complainant regarding the appellant’s motives to transport the goods, thereby already doubting the appellant’s motives in doing so.

[6] The allegations in the charge-sheet read that the television and the music system had been removed from the complainant’s home and the magistrate questioned the complainant in order to elicit from him the appellant’s further motives in regard to this.

[7] The court a quo further questioned the complainant to obtain information (hearsay in fact) as to what the person who transported the appellant had said about whether he had other property with him.

All the above questioning took place during the leading of the complainant’s examination in chief which clearly illustrates that the court a quo had entered into the arena of conflict between the State and the appellant.

To further illustrate that the magistrate at this stage had already prejudged the issues and predetermined the guilt of the appellant, is clearly evident when the appellant cross-examined the complainant regarding how the entry into the complainant’s house was gained.


[8] The court interrupted the questioning by the appellant and informed the appellant as follows: (See record page 11 lines 5-17.)

“COURT: Did you not understand this witnesses’ evidence when the interpreter interpreted. He has explained to the court how he made certain enquiries went to Maduna’s home after he was taken there, and found his music system and television there. Maduna taking them also to the lady where you had placed his other goods and thereafter you were arrested after Maduna had pointed you out to the complainant, it is very simple, and he further says that he found the key of his house in your pocket at the police station, and obviously that is how you broke into his house, you unlocked the door and opened it, and that constitutes housebreaking under the circumstances.”

The words “obviously that is how you broke into his house” clearly illustrates that the court a quo had predetermined the guilt of the appellant.

[9] During the cross-examination of the complainant, the court a quo questioned the appellant regarding his version in a manner that may have given the impression that the court a quo was clearly associating himself with the State’s case and disbelieving the appellant. It further appears that the transcriber appeared to have been totally confused with regard to this questioning by the court in that at page 13 of the record the transcriber has typed “the accused” as giving the evidence instead of the complainant.

[10] When the appellant challenged the witness Nawoke as to whether the goods were found at his place, the court before the witness could answer these questions put the following to the appellant: (See record page 19 lines 17-19)

“COURT: What are you talking about now, this witness has already explained to the court where the goods were found, at Maduna’s place as well as by the lady. Further questions?”

This questioning further illustrated that the court had disbelieved the appellant and had already predetermined the appellant’s guilt.

[11] The court during the appellant’s testimony put to the appellant the following (see page 32 lines 21 to 27):

“COURT: Specifically how did he know that your alleged property was at Maduna’s place, because if it was not for him complainant would never have found his property, now can you think how on earth this person now knew that your alleged property, complainant said belongs to him, were at Maduna’s place. - - I do not know your worship.”

Quite clearly the court’s questioning illustrated that the court had predetermined the accused’s guilt which should have only been decided at the end of the trial.

[12] When the appellant told the court about his difficulty with the tracing of the defence witness the court stated the following (see record page 34 lines 14 to 17):

“COURT: Would you like me to keep you here for the rest of your life in custody. Please you must help the court now can you tell us how we can trace your witness please?”

[13] In my view all of the above questioning of the appellant by the court a quo was highly irregular indicating that the magistrate had prejudged the case against the appellant and disbelieved his version.

The questioning of the appellant in the words of the magistrate throughout the proceedings intended “for clarity sake” created, in my view, the impression that the court had predecided the issues against the appellant and had already rejected the version of the appellant during the State’s case.

[14] The conduct of a trial must leave no doubt in the minds of an accused and the public that the proceedings having been conducted in a fair and impartial manner without any suggestion of bias or suspicion.

[15] In my view the conduct of the magistrate in the questioning of the appellant constituted an irregularity in the proceedings of the court a quo. See in this regard S v Rall 1982 (1) SA at 829 (AD).

[16] Conduct which creates the impression that a judicial officer has prejudged the issues before him does not augur well for the impeccable impartiality that our administration of justice is premised on.

[17] It is incumbent upon a judicial officer to exercise restraint, open mindedness, fairness and impartiality in the questioning of both an accused and State witnesses in order to ensure a fair and just trial which was clearly not done in the case before me.

[18] Judgments of our courts reveal significant principles being enunciated regarding the accused’s right to a fair trial as enshrined in our Constitution.

See S v Mabuza 1991 (1) SACR at 636 where it was held that the standards which a judicial officer should maintain in the questioning of an accused must be such that its impartiality must not be questioned or doubted.

[19] In S v Maseko 1990 (1) SACR at 107 (A) it was held that a trial judge should guard against conduct which would create the impression that it was descending into the arena of conflict between the appellant and the State or that he was partisan or had predecided issues which should only be decided at the end of the trial.

[20] In my view Ms Havenga’s submissions raise fundamental issues regarding the rights of the appellant to a fair trial.

[21] In the circumstances I find it unnecessary to go further into the merits of the matter before me. In my view the conduct of the magistrate in the questioning of the appellant was highly improper and constitutes an irregularity in the proceedings in the court a quo.

[22] By reason of all the aforegoing it cannot be said that the appellant has had a fair trial nor can it be said that he was not prejudiced.

[23] Points in limine raised by Ms Havenga are upheld.

[24] In the result the appellant’s appeal against his conviction and sentence succeed. The appellant’s conviction and sentence are set aside as is the order.

                  _________________________________

                                    D A KUNY
                  ACTING JUDGE OF THE HIGH COURT

         I agree and it is so ordered.

                                    _________________________

                                             H SALDULKER

                          JUDGE OF THE HIGH COURT

Date of Judgment                  :        25^th May 2006