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.

[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.

[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.

[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.

 [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....

A Judge 'is not a mere umpire to answer the question "How's that?'" Lord Denning once said:

[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:

1.	
2.	Such proceeding shall commence within 30 days from the date of this order.
3.	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
4.	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.
5.	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
6.	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