JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 

and

JUDGMENT

[1] The appellant was convicted in the Regional Court at Beilvilte on 24 June 2002 on charges of murder and theft. He was sentenced to a period of 10 years' imprisonment on the murder count and five years' imprisonment on the theft count. Leave to appeal was granted on 4 May 2007. It is unfortunate that this matter only comes on appeal almost six years after the conviction.

[2] The appellant's main ground of appeal is based upon the magistrate's conduct during the course of the trial. The case against the appellant was based on circumstantial evidence and the conviction of the appellant was based, to a large extent, on adverse credibility findings made against him by the magistrate. A reading of the record reveals reveals truly shocking behaviour on the part of the magistrate. As will be indicated below he entered into the arena and subjected the appellant to a lengthy and bullying cross-examination. He denigrated and insulted the appellant's legal representative and threatened to hold him in contempt when he, quite correctly, objected to the cross-examination of the appellant by the magistrate.

[3] His attitude throughout demonstrated a degree of arrogance which is unbecoming of a judicial officer. He further, having threatened the appellant's legal representative with contempt, refused to allow him to address the Court regarding his own behaviour. Having made the insulting remark that the legai representative should first read the authorities before addressing him, he thereafter refused to allow him to do so. It is, however, apparent from the magistrate's behaviour that he himself flagrantly disregarded, not only the rules of propriety and etiquette and basic good manners, but ignored that which is set out in the authorities with which he claimed to be familiar.

"It is appropriate at this stage to turn to an examination of the second ground on which the   application   for   leave   to   appeal   was founded, namely that the manner in which the trial Judge conducted himself was such that the appellant and Myakiso, his co-accused, had not had a fair trial. 

"The application for leave to appeal comprised the criticism of the learned Judge's conduct at the trial to his alleged impermissible or excessive questioning of the appelfant. It was submitted that from the very commencement of the trial he descended into the arena against the appellant by manifesting disbelief or at least scepticism of the validity of his defence of self-defence. The appellant's evidence in chief occupies eight pages of the record. Cross-examination by the prosecutor covers 41 pages during which the learned Judge often intervened and questioned the appellant. I estimate those interventions to be in ah about 18 pages. Thereafter, and before the re-examination of the appellant by his counsel, the learned Judge proceeded to question him continuously for 34 pages in which he traversed in detail virtually the whole of his version again. But in the main, especially during the continuous questioning covered by the aforementioned 34 pages, the interrogation was tantamount to sheer cross-examination of the appellant in which leading questions were  put to  discredit him as  a witness. Many of them also conveyed judicial disbelief or scepticism of his evidence on certain material aspects of the alleged self-defence.
I shall not over-burden this judgment with extracts from the record to illustrate the nature of the learned Judge's questioning of the appellant, they would be too numerous and lengthy. It suffices for me merely to say that, in my view, he far exceeded or clearly infringed the limitations mentioned above".

[7] In the present matter, the questions put by the magistrate to the appellant take up some 30 pages of the record. Leading questions were put to the appellant by the magistrate and he was cross-examined. A few extracts which demonstrate the attitude of the magistrate and the manner in which he questioned the appellant will suffice. There are numerous similar examples:
"Dan vra ek nou weer vir u meneer, wanneer het hy gese dit is sy goed? --- Dit is Donderdag my Edelagbare wat hy gese het dit is sy goed.
Hoekom het hy dit vir u gese? —- Ek weet nie, hy het dit net gese my Edelagbaar.
Ja so hy lieg, hy heg daaroor ne? --- My Edelagbare ek kan nie onthou dat hy vir my gevra
het nie U Edelagbare, as hy vir my gevra het sou ek mos onthou het".

[8]    The treatment of the appellant's representative by the magistrate was equally objectionable:

geleentheid gee om u toe te spreek?

vra?

nie?
HOF:  Nee, sit asseblief.

[9] It is clear that the magistrate simply ignored Mr Grobbelaar's last request that he be allowed to address him. The behaviour of the magistrate was not that which one would expect of a judicial officer. Magistrates exercise a very necessary and onerous function, this does, however, not justify the type of behaviour exhibited by the magistrate. Taken cumulatively, the questions put by the magistrate sustain the inference that in fact he was not fair and impartial during the trial. In these circumstances the proceedings are invalid and the convictions and sentences imposed on the appellant cannot stand.

[10] I am of the view that the appeal should be allowed and the conviction and sentence should be set aside.