7. JUDICIAL OFFICERS

Judicial officer’s conduct

Once the accused has pleaded and the trial proceeds, the conduct of the trial is managed by the presiding judge or magistrate in accordance with procedural rules laid down in the Criminal Procedure and Evidence Act.  All orders given by him for the proper conduct of the trial must be obeyed by the parties, the court staff and the public.

A trial must be conducted fairly:

“A long line of cases shows that it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done … The rule is that nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

So a judicial officer must be fair, objective and impartial, and must avoid any conduct that may create the impression that he is biased either for or against the accused.  He must be honest and upright, patient and understanding.  He must be prompt and businesslike in the performance of his duties.  He must apply the law as it is, not as he thinks it ought to be.  He must avoid extravagant and emotional language while on the bench.  He must ensure that witnesses and accused persons are treated courteously by the court, the defence and the prosecution.

It is desirable for a judicial officer to avoid communicating with either party to a case except in the presence of the other but it is not really possible in a magistrates court where magistrates and prosecutors must meet to arrange the court’s schedule and to discuss other administrative matters.  When they do meet outside the courtroom, however, they must never discuss the merits of any case except in the presence of the accused or his representative.

Questioning of witnesses

There is a fine line between asking necessary questions of witnesses (including the accused when he gives evidence) and “descending into the arena”.  Sometimes the judicial officer will need to question witnesses in order to clarify a particular point in the interests of justice, or to assist an unrepresented accused put a question clearly, but generally he should leave the questioning to the parties.  Lengthy questioning of a witness is undesirable, particularly if it gives the impression that the judicial officer is favouring one side rather than the other , and he should avoid intimidating or disconcerting a witness by his questions or influencing the witness’s replies.

Calling of evidence

The court has a general power to call witnesses in a criminal case  Essentially the court can and should call a witness if it considers that to do so will help it reach a just decision, but this power should be exercised sparingly.  It is not the court’s function to build up a case which the prosecution has failed to establish or to rebuild the defence case.  Only in exceptional circumstances should the court call a witness in a defended case, but if there is a conflict in the evidence which can be resolved by a witness who has not been called, the court should call that witness.

Assistance to undefended accused persons

A judicial officer must assist an unrepresented accused so far as is necessary to ensure that justice is done, because such accused persons are often at a considerable disadvantage vis-à-vis the prosecutor.  The judicial officer must not assume the role of defence lawyer or attempt to conduct the defence;  he must, however, ensure that points which are pertinent to the defence case are brought out.

As part of this duty, the judicial officer should explain to the accused:

  • the charge, so that he understands the case he has to meet;
  • the accused’s right to legal representation and, where appropriate, to legal aid if substantial injustice would result from the accused not being represented;
  • any special onus that is cast on the accused, e.g. any presumptions that he has to rebut;
  • any mandatory minimum sentence to which the accused is liable, and (where appropriate) the nature of any special circumstances that may allow the accused to escape the mandatory sentence;
  • at the end of the State case, the courses open to the accused and the effect of taking those courses.

Generally, the court should ensure that an undefended accused is informed of his rights and of the options open to him at all stages of the trial:

“The right to a fair trial demands that there should be informed participation by the unrepresented accused.  A court is therefore required to explain all procedural rights and options to an unrepresented accused — and to do so at every critical stage.  The fact that the accused’s rights have been explained should be properly recorded.”

The court should allow an undefended accused considerable latitude in cross-examination and should avoid cutting the accused short.

Protecting witnesses

A judicial officer should protect witnesses, including the accused, from offensive or oppressive questioning by legal practitioners on either side, and must stop practitioners if they exceed the bounds of propriety or courtesy.

Recusal of judicial officer

To recuse oneself means to remove oneself as a judicial officer from a particular case because of actual or potential bias, prejudice or conflict of interest.

A judge or magistrate must not sit in a case where he or she may not be able to administer justice impartially, either on the ground of hostility or interest.  The principle involved is that no reasonable person should have grounds for suspecting that justice will not be administered in an impartial and unbiased manner.  It is an objective test, i.e. whether the judicial officer’s conduct leaves a right-thinking observer or litigant with the impression that the accused would not or did not receive a fair trial.  The fact that the judicial officer is in fact impartial is not the test:  it is the reasonable perception of the parties, or the right-thinking observer, that is important.

The general approach to an application for recusal was laid down by the South African Constitutional Court as follows:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.  The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour;  and their ability to carry out that oath by reason of their training and experience.  It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.  They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.  At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

In a later case, the South African Constitutional Court reiterated the following rule of practice which, the court said, had become established for a long time:

“The question which a judicial officer should subjectively ask himself or herself, therefore, is whether, having regard to his or her … interest in … proceedings, he or she can bring the necessary judicial dispassion to the issues in the case.  If the answer to this question is in the negative, the judicial officer must, of his or her own accord, recuse himself or herself.  If, on the other hand, the answer to this question is in the affirmative, the second question to ask is whether there is any basis for a reasonable apprehension of bias on the part of the parties …  If the answer to this question is in the affirmative, the judicial officer must disclose his or her interest in the case, no matter how small or trivial that interest may be.  And, in the event of any doubt, a judicial officer should err in favour of disclosure.”

Grounds justifying recusal include the following:

  • Where the judicial officer is related to or is friendly with or hostile to the accused or to a principal witness for the prosecution.
  • Where the judicial officer has an interest in the outcome of the case.The interest must not be so slight, however, that it would be unreasonable to suppose that it could have any effect on the judicial officer’s mind.
  • Where the judicial officer’s personal feelings in regard to the case, or any issue arising in the case, would make it impossible for him or her to act in an impartial manner.
  • Generally, where there is a reasonable suspicion of bias.

Examples of cases where a judicial officer should recuse himself or herself are:

  • Where the judicial officer, prior to his or her appointment, was a prosecutor concerned with the merits of the case.
  • Where the judicial officer has actual knowledge of many of the facts that will be in dispute in the case, e.g. where he or she has tried and sentenced one of two joint accused whose trials have been separated.
  • Where the judicial officer knows that the accused has relevant previous convictions — though such knowledge will not invariably disqualify the judicial officer from trying the case.
  • Where a magistrate presides over a case in which a fellow-magistrate from the same province is the accused.

An application for recusal may be made by any party to the proceedings, but where possible it should be made at the commencement of the proceedings to avoid the inconvenience of stopping the trial and starting it again de novo before another judicial officer.  It is improper for a legal practitioner who knows of a ground on which an application for recusal should be made, to refrain from making the application in order to keep it in reserve, as it were, in order to use it as a ground of appeal if the accused is convicted.  An application for recusal must be made respectfully and tactfully, and where possible the judicial officer should be approached in chambers (by both parties) and informed of the application and the grounds for it before it is made in open court.  The applicant must show a reasonable fear, based on objective grounds, that the trial will not be impartial.

While judicial officers must recuse themselves when there are proper grounds for doing so, they must remember that their duty to sit in cases where they are not disqualified from doing so is just as compelling as their duty not to sit when disqualified.

When a judicial officer recuses himself or herself, he or she becomes functus officio.  If the recusal occurs after the trial has commenced, the trial becomes void.  The recusal in itself shows that the court was not competent to hear the case.  A new trial may therefore be instituted.  Obviously, if the judicial officer recuses himself or herself before the trial has started, the trial will simply proceed before another judicial officer.

A failure by a judicial officer to recuse himself or herself when he or she ought to have done so is a ground for having the proceedings set aside on review.

Incapacity of judge or magistrate

This has been touched on earlier under Pleas.  If after the accused has pleaded and evidence has been led, the presiding judicial officer dies or is incapacitated (other than temporarily), the proceedings are regarded as a nullity and the accused may be tried again.  It is not permissible for another judicial officer to continue the trial where the former officer left off.  If the judicial officer retires or resigns, the proceedings are abortive and lapse without their having to be set aside — though in terms of sec 186(4) of the Constitution a judge who retires may complete proceedings that were begun by him or her.

If a magistrate becomes ill and is unlikely to be able to continue a trial for a considerable period, the proceedings can be set aside on review so that they can be commenced afresh before another magistrate.

 

Lord Hewart in The King v Sussex Justices [1924] 1 KB 256 at 259, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 228.

For a full discussion of the necessary attributes of a judicial officer, see “Attributes, Attitudes and Comportment of Judicial Officers” by Gubbay JA (as he then was) in Legal Forum (1988) vol 1 no. 1 p. 3;  see also Reid Rowland Criminal Procedure in Zimbabwe p. 16–4.

For an example of how a judicial officer should not conduct a trial, see Jesse v Pratt & Anor 2001 (1) ZLR 48 (H).  That case also illustrates the point that sometimes, where a magistrate has conducted a trial in a biased fashion, the appropriate remedy is not just a setting aside of the proceedings but an order staying any future prosecution.

R v Maharaj 1960 (4) SA 256 (N).

S v Magoge 1988 (1) ZLR 163 (S).

S v Mangezi 1985 (1) ZLR 272 (S).

Section 232 of the Criminal Procedure and Evidence Act.

R v Green 1936 SR 181.

S v Nyamaro & Anor 1987 (2) ZLR 222 (S) at 229-230.

S v Buitendag 1976 (1) RLR 345 (A).

Section 70(1)(b) of the Constitution.

Section 70(1)(d) & (e) of the Constitution.  Under section 163A of the Criminal Procedure and Evidence Act, accused persons in the magistrates court must be informed of his right to legal or other representation.

R v Lebang 1965 RLR 169 (G).

S v Chaerera 1988 (2) ZLR 226 (S) at 229.

S v M & Ors 1975 (2) RLR 270 (A).

Geldenhuys & Joubert Criminal Procedure Handbook 10th ed page 283.

S v Jakarasi 1983 (1) ZLR 218 (S) at 225;  Jesse v Pratt & Anor 2001 (1) ZLR 48 (H).

Cf the definition in Black’s Law Dictionary (4th pocket edition).

S v Herbst 1980 (3) SA 1026 (E) at 1029.

S v Mutizwa 2006 (1) ZLR 78 (H) at 81.

S v Malindi 1990 (1) SA 962 (A) at 969G, cited in S v Mutizwa 2006 (1) ZLR 78 (H) at 83-4.

President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 177B-E.

Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 111A-C.

Feltoe Criminal Defenders Handbook (revised ed 2008) p. 71.

Levy v Additional Magistrate, Rustenburg 1925 TPD 316, and S v Geldenhuys 1978 (2) PH H127.

S v Batata 1965 (1) PH H50 (E).

Khan v Koch 1970 (1) RLR 59 (G).

SA Motor Acceptance Corp v Oberholzer 1974 (4) SA 808 (T).

Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114C.  In English law the rule is the same (Locabail (UK) Ltd v Bayfiled Properties Ltd [2000] 1 All ER 65 (CA) (cited in Bernert’s case) but is based on waiver rather than the interests of justice.

Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H).

Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H).

Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H).

  Zackey v Magistrate of Benoni 1957 (3) SA 12 (T);  Magubane v Van der Merwe NO 1969 (2) SA 417 (N).

S v Makoni & Ors 1975 (2) RLR 75 (G).