c. t. =' REPORTABLE IN THE mgh COURT OF SOUTH AFRICA NATAL PROVINCIAL DIVISION In the matter between: MBONGISENI MSITHING Appellant and THERONJ

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2 c. t. =' IN THE mgh COURT OF SOUTH AFRICA REPORTABLE NATAL PROVINCIAL DIVISION APPEAL NO: AR53/2003 In the matter between: MBONGISENI MSITHING Appellant and.,,, n. THE STATE Respondent JUDGMENT Date heard: Date delivered: 3 May October 2005 THERONJ Introduction [1] The main questions in this appeal are whether the magistrate in the trial court committed an irregularity by descending into the arena and whether such irregularity resulted in a failure of justice. Background [2] On 14 May 2000 a group of men robbed the home of Riaan Pieters stealing various household items, a Land Rover motor vehicle as well as a gun safe containing two firearms, a 6.35 Mauser pistol and a.22 calibre rifle. The appellant along with seven others were originally charged in the Regional Court, Ladysmith. The charges preferred against the appellant were that of robbery with aggravating circumstances as well as a contravention of section 2, read with various other sections of the Arms and

3 ... c... " IN THE mgh COURT OF SOUTH AFRICA REPORTABLE NATAL PROVINCIAL DIVISION APPEAL NO: AR53/2003 In the matter between: MBONGISENI MSITHING Appellant and. THE STATE Respondent JUDGMENT Date heard: Date delivered: 3 May October 2005 THERON J Introduction [1] The main questions in this appeal are whether the magistrate in the trial court committed an irregularity by descending into the arena and whether such irregularity resulted in a failure of justice. Background. [2] On 14 May 2000 a group of men robbed the home of Riaan Pieters stealing various household items, a Land Rover motor vehicle as well as a gun safe containing two firearms, a 6.35 Mauser pistol and a.22 calibre rifle. The appellant along with seven others were originally charged in the Regional Court, Ladysmith. The charges preferred against the appellant were that of robbery with aggravating circumstances as well as a contravention of section 2, read with various other sections of the Arms and

4 Ammunition Act, No. 75 of 1969, namely unlawful possession of a 6.35 Mauser pistol and a.22 calibre rifle. The appellant was convicted of robbery and the unlawful possession of a pisto1. He was sentenced to fifteen and five years imprisonment, respectively. He has appealed to this court against both the convictions and sentences. Hearing on 23 October 2003 [3] On 23 October 2003 this matter came before Judges Levinsohn and Kruger. On that occasion the matter was adjourned so as to afford the magistrate an opportunity to respond to: "the issue of whether the magistrate in fact descended into the arena and by doing so, caused a ~~~~ion when;~ ~ W~ IJ.fstly,. disabled from making findings o f credibility, and secorrdly, nact. brought about a situation where the fairness of the trial could be called into question." The magistrate in his response has submitted that the fairness of the trial cannot be called into question. The magistrate concedes that he did ask the appellant "a lot of questions" and goes on to explain his conduct as follows: "I would like to point out that there were 3 prosecutors involved in the case. The majority of the witnesses for the State were called before the last prosecutor, Mr Somaru took over on the 4th April From my remarks on page 126 line and page 166 line when the first two prosecutors were involved it is clear that I was not satisfied how they performed their duties. They were both extremely inexperienced. Mr Somaru became involved after the majority and most important state witnesses had testified. It is correct that I (the court) had asked the Appellant a lot of questions. I did it because the prosecutor Mr Somaru was at a disadvantage (sic) position, as he was not involved at the beginning of the trial. It is correct that my questioning of Appellant lasted longer than that of the prosecutor. My questioning of the Appellant would not have lasted that long if the Appellant was not so evasive which caused me to repeat questions or asked (sic) it differently." What is the approach to be adovted on apveal to an irregularity as alleged by the appellant which may impinge on the appellant's right to a fair trial? [4] An accused's right to a fair trial is guaranteed in section 35(3) of the Constitution of the 2

5 .. 3 I I Republic of South Africa, Act No. 108 of 1996 ("the Constitution,,).l It has been held that the ~ "requirement that a trial must be fair is central to any civilised criminal justice system". 2 In S v Zuma and Others3 the Constitutional Court had occasion to pronounce on the effect of an accused's In that case rights to a fair trial as provided for under the interim Constitution.4 Kentridge AJ, writing for the court, stated: 1 Section 35(3}provides: "Every accused person has a right to a fair trial, which includes the right 5a) _T~ ~e _info~:d o!~ _c~~~~ ~!~ ~ffi~i~n!a~~i!~o_~~~ li; n (b) To have adequate time and facilities to prepare a defence; (c) To a public trial before an ordinary court; (d) To have their trial begin and conclude without reasonable delay; (e) To be present when being tried; (t) To choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) To have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) To be presumed innocent, to remain silent, and not to testify during the proceedings; (i) To adduce and challenge evidence; G) Not to be compelled to give self incriminating evidence; (1<.) To be tried in a language that an accused person understands, or if that is not practicable, to have the proceedings interpreted into that language; (1) Not to be convicted for an act or omission that was not an offence under either national or intemationallaw at the time it was committed or omitted; (m) Not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; Cn) To the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (0) Of appeal to, or review by, a higher court." 2 Per Van der Westhuizen J in Jaipal v S 2005 (5) BCLR 423 (CC). The learned judge also stated: "It is essential in a society which recognises the rights to human dignity and to the freedom and security of the person, and is based on values such as the advancement of human rights and freedoms, the rule oflaw, democracy and openness. The importance and universality of the right to a fair trial is evident from the fact that it is recognised in key international human rights instruments." (footnotes omitted) (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) 4 Section 25(3) of the Constitution of the Republic of South Africa, Act No. 200 of 1993, was the predecessor to the present section 35(3).

6 4 "The right to a fair trial conferred by that provision [section 25(3) of the interim Constitution] is broader than the list of specific rights set out in paragraphs (a) to G) of the subsection. It embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. In S v Ruc/man and Another; S v Mthwana 1992 (1) SA 343 (A), the Appellate Division, while not decrying the importance of fairness in criminal proceedings, held that the function of a Court of criminal appeal in South Africa was to enquire 'whether there has been an irregularity or illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted.' A Court of appeal, it was said (at 377), 'does not enquire whether the trial was fair in accordance with the "notions of basic fairness and justice", or with the "ideas underlying the concept of justice which are the basis of all civilised systems of criminal administration".' _..TE~ ~~ an_a!!thoiitatiye sjatemenlof the law bef ore 21 ~Aprit t994: Since1:hat date S 25(3J nas required criminal trials to be conducted in accordance with just those 'notions of basic fairness and justice'. It is now for all courts hearing criminal trials or criminal appeals to give content to those notions."s [5] The common law position relating to the questioning of a witness by a judicial officer is to be found in S v RaZt where the Appellate Division set out the limits within which judicial questioning should be confined. Any serious transgression of these limits will constitute an irregularity in the proceedings. In Rall, it was held that in the event of an irregularity being committed, a court of appeal can intervene if the irregularity has resulted in a failure of justice. Whether there has been a failure of justice in turn depends on whether or not the irregularity prejudiced the accused, or whether or not it is in the interests of public policy that the court of appeal intervenes. 5 Supra at para (1) SA 828 (AD). The limits set out by the Appellate Division are: 1. A judicial officer must ensure that justice is done but, equally important, that justice is seen to be done. 2. A judicial officer should refrain from questioning witnesses or the accused '~in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues" before him. 3. A judicial officer should "refrain from questioning a witness or the accused in a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility". Per Trollip AJA at 831H 832H

7 5 (6] It is unavoidable to conclude that the magistrate's conduct during the trial in the court a quo amounted to an irregularity in the proceedings. This will be dealt with in greater detail later in this judgment. The proviso to section 309(3) of the Criminal Procedure Act, No. 51 of 1997 ("the Act") provides that: "... no conviction or sentence shall be reversed or altered by reason of any irregularity of or defect in the record or proceedings, unless it appears to such division that a failure of justice has in fact resulted from such irregularity or defect." Section 322(1)(a) of the Act, dealing with the powers of a court of appeal provides that: < 'in the case u ran appea1 agamsfa conviction or o(aiiy que stion ofl;~ ~;e~;d: the ~~urt of appeal may allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground,there was a failure of justice." The common law position regarding irregular proceedings is set out in S v Moodie7 where Holmes JA dealt with the similarly worded precursor to section 309(3) of the Act. The learned judge of appeal referred with approval to the sentiments expressed by De Wet JA in R v Rose8 to the effect that "the term justice is not limited in meaning to the notion of retribution for the wrongdoer: it also connotes that the wrongdoer should be fairly tried in accordance with the principles oflaw." In Moodie, the learned judge, in interpreting the proviso, concluded that: (a) as a general test a court of appeal will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial court would inevitably have convicted if there had been no irregularity; (b) in an exceptional case an irregularity can be of such a nature as per se to amount to a failure of justice, and in such a circumstance it is not necessary to apply the general test; (4) SA 752 (AD) AD 467

8 \c) whether a case falls within (a) or (b) depends upon the nature and degree of the irregularity.9 [7] The above principles of the common law were approved and applied by Combrinck J in S v HlatilO where he held that they have been "encapsulated in the right of an accused in terms of Section 35 of the Constitution... to a fair trial." These common law principles were referred to by W ebster J in S v Matladill where the judge said that in terms of the common law a distinction must be made between "general" and "exceptional" irregularities.12 Webster J went on to apply the following constitutional test as set out by Mahomed CJ in S v Shikunga and Another: 13 "It would appear to me that the test proposed by our common law is adequate in relation to both _con~~ti~i!ala!lq nqj! ~QnstitutionaLerrors~ Where the meg\llarity is S<tfu.ndamental that Itcan De said that in effect there was no trial at all, the conviction should be set aside. Where one is dealing with an irregularity of a less severe nature then, depending on the impact of the irregularity on the verdict, the conviction should either stand or be substituted with an acquittal on the merits. Essentially the question that one is asking in respect of constitutional and non constitutional irregularities is whether the verdict has been tainted with irregularity. Where this question is answered in the negative the verdict should stand. What one is doing is attempting to balance two equally compelling claims the claim that society has that a guilty person should be convicted, and the claim that the integrity of the judicial process should be upheld. Where the irregularity is of a fundamental nature and where the irregularity, though less fundamental, taints the conviction the latter interest prevails. Where, however the irregularity is such that it is not of a fundamental nature and it does not taint the verdict the former interest prevails." In Matladi, reference is made to Hlantlalala and Others v Dyanti NO and AnotherI4 where a similar approach is followed, save that Mpati AlA expounds on the concept of irregularities leading to a failure of justice by holding that where the irregularity leads to actual or substantial prejudice to the accused, a failure of justice will result. The learned judge found that there will be no prejudice to an accused and hence no failure of justice where the accused would, in any event, have been convicted, notwithstanding the irregularity. 9 Supra at 756D 758H (8) BCLR 921 (NPD) at 928D (2) SACR 447 (TPD) 12 In dealing with this distinction, Webster J at 451 i referred with approval to the following passage of the authors De Waa1, Currie and Erasmus in their handbook Bill of Rights 4th edition at 661 : "In respect of the former (ie general irregularities) the question is whether there is sufficient untainted evidence to prove guilt beyond a reasonable doubt. Exceptional irregularities are so serious in nature and degree that policy requires them to be fatal to the proceedings." (2) SACR 470 (NmSC) at 484b c; 2000 (1) SA 616 (NmSC) at 629f i; 1997 (9) BCLR 132 r (NmS) at 1332I 1333B (2) SACR 541 (SCA) at 545g 546a 6

9 l~] In S V TshidisOl5 Van Der WaIt AJ dealt with what constitutes a fair trial and came to the conclusion that the constitutional right to a fair trial was broader than the list of rights articulated in section 35 of the Constitution and extended to "substantive fairness" or to the so called "residual fair trial right". V an Der Walt AJ commented on the test as set out in Shikunga: "In essence, according to the approach of Mohamed CJ, the question of fairness relates to the 'impact of the irregularity on the verdict' and the 'tainting' of the verdict by such an irregularity. This also implies that violations are not to be judged in vacuo, but must be examined in respect of their causal impact on the 'verdict'. In order to do this, one is required to examine and evaluate the nature, degree and extent of detriment or prejudice causally connected to the irregularity. The impact must clearly be of such a nature that it resulted in an unfair trial or a failure of justice.... Even before the advent of the new Constitution, it was accepted that an irregularity in terms of the Criminal Procedure Act is not per se a failure of justice which entitles a convicted person to have a conviction set aside. n n The acid test to determine whether an accused's right to a fair trial was violated is. therefore. to evaluate from a holistic point of view. ie having regard to the conduct and proceedings of the case as a whole. the causal impact on the evidence obtained and the verdict bv an alleged irregularity. There must be present a degree of substantive preiudice or a failure of iustice. The object of the accused's right is clearly a fair trial; and this implies a legal evaluation of the trial in relation to the question of fairness.,,16 [my emphasis] In S v Dzukuda and Others; S v Tshilo17 Ackermann J emphasised that central to the right to a fair criminal trial is the requirement not only that justice be done, but that justice be seen to be done. The principles set out in Dzukuda were confirmed in Jaipal where Van der Westhuizen J, when dealing with the issue of a failure of justice in relation to the provisions of Section 322(1) of the Act, stated: "Therefore a failure of justice must indeed have resulted from the irregularity for the conviction and sentence to be set aside. In construing when an irregularity had led to a failure of justice, regard must be had to the constitutional right of an accused person to a fair trial. If an irregularity has resulted in an unfair trial, that will constitute a failure of justice as contemplated by the section and any conviction will have to be set aside.... The meaning of the concept of a failure of justice in (1) SACR207 (WLD) 16 Supra at 210g 211f (4) SA 1078 (CC). The judge captured this as follows: "At the heart of the right to a fair criminal trial and what infuses its purpose is for justice to be done and also to be seen to be done. But the concept of justice itself is a broad and protean concept. In considering what, for purposes of this case, lies at the heart of a fair trial in the field of criminal justice, one should bear in mind that dignity, freedom and equality are the foundational values of our Constitution. An important aim of a fair criminal trial is to ensure adequately that innocent people are not wrongly convicted because of the adverse effects which a wrong conviction has on the liberty, and dignity (and possibly other) interests of the accused." 7

10 section 322(1) must therefore now be understood to raise the question of whether the irregularity has led to an unfair trial.,,18 [9] The constitutional entrenchment of the right to a fair trial has brought about a fundamental change in the criminal justice system. The question to be asked and answered in a case such as this is whether the accused had a fair trial. If answered in the negative, cadit quaestio, then a failure of justice would have occurred. The traditional approach of identifying, classifying and labelling irregularities is no longer appropriate. This change is indeed illustrated by contrasting the cases of Zuma an~ ~~~~a~. ~ ~~m3_~j?p~~!~ is placed on substantive (not u procedural) fairness, while Rudman speaks of irregularity, illegality, a departure from formalities, rules and principles of procedure. [10] To my mind, the constitutional test as developed by our courts over the past ten years or so may be summarised as follows: a fundamental irregularity which violates an accused's right to a fair trial must result in a failure of justice. If the irregularity is not of a fundamental nature, the focus shifts to what would have happened, but for such irregularity. The setting aside of a conviction based on the violation of the right to a fair trial in circumstances of a minor "tainting" of the proceedings will undermine the "pressing social need" to prosecute crime.19 [11] The role of a judicial officer is central to a criminal trial. The competence and impartiality of the judicial officer are substantive matters which affect and determine the fairness (or lack thereof) of a trial. Where there is a demonstrable lack of either on the part of the judicial officer, it cannot be said that the accused had a fair trial. 18 Supra at 438B D 19See Zuma (supra); S v Hlongwa 2002 (2) SACR 37 (TPD); S v Thebus and Another 2003 (2) SACR 319 (CC) 8 - ~ = ~ ~ -

11 1t is appropriate to refer to the well known dictum of Curlewis JA in R v Hepworth2O regarding the role of a judicial officer in a criminal trial: "A criminal trial is not a game... 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." [12] The Regional Court magistrate in his reasons for conviction dated 21 November 2003 concedes conduct which amounts to him effectively prosecuting the appellant. His reasons for this conduct are that three prosecutors were involved in the case, two of whom were extremely inexperienced and the ~~ ~~e _t~ ~~ l~t~ _e~~ ~~~ ~e?"!~ ~~ ~~~~e _t~ ~r~p~r!~ t~~ ~~ _e~i~ep.~e _of!p.~ _~~eli~t It was stated by Southwood J in S v Mathabathil that: "While I have great sympathy for judicial officers sitting in the lower courts in uncomfortable conditions and with inexperienced and sometimes incompetent prosecutors, this cannot excuse what is clearly a substantial deviation from the standard of conduct and impartiality required." Can it be said that a magistrate who descends into the arena on the part of the prosecution, for whatever reason, acted independently or so as to be perceived to have acted independently? Can it be said that his/her conduct was impartial and free from interference? Right from the beginning of the magistrate's questioning of the appellant he displays irritability and sarcasm towards the appellant. On a number of occasions the magistrate does not provide the appellant with an opportunity to answer the question posed and sets about trying to entrap the appellant. His tone is sarcastic, he asks leading questions and intimidates the appellant.22 It cannot be said, objectively, that the magistrate conducted the trial in such a manner "that his open mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and AD 265 at (2) SACR 28 (TPD) at 33d 22 Relevant extracts of the record evidencing this behaviour on the part of the magistrate are contained in the addendum to this judgment

12 10.t.S outcome, specially the accused".23 The frequency, length, timing, form, tone and contents of his questioning without doubt conveyed the opposite impression. It is my view that the magistrate's conduct was so fundamentally unfair to the appellant that the process amounted to no trial at all. The irregularity was of such a fundamental nature that the reasonable observer would perceive that the integrity of the judicial process must be called into question. The magistrate transgressed the limitations within which judicial questioning should occur in a manner which was grossly unfair to the appellant and which infringed the appellant's right to a fair trial..... The Order In the result, the convictions and sentences are set aside. I agree: "h. Appellant's counsel: Respondent's counsel: Appeal Judg Msithing R M van Rooyen A P McIntosh Instructed by the Director of Public Prosecutions 23 Per Trallip AJA in Rail (supra). See part 3 of the addendum. In this extract of the record the appellant expresses the view that he is not being given adequate opportunity to explain his version to the court.