Events in the higher courts may make great headlines, but it’s in the magistrates’ courts that most people experience justice. That’s why it’s so important that magistrates do their jobs properly.
Two random decisions delivered by the high courts in August show there’s still a lot of work to be done on that count.
One deals with an appeal to the high court by a man convicted of robbery with aggravating circumstances.
The householder in this case was attacked by three armed men when he was pulling his car into his garage. They took his keys, money and cellphone and demanded that he show them his safes and open them. After roughing up their victim they took a pistol and some ammunition, then jumped into his car and sped off.
One man was arrested, charged, convicted and sentenced to 15 years. He appealed and two judges of the high court carefully went through the court record of his case.
That’s when they discovered that, while the trial was in progress, the presiding magistrate had gone to the scene of the crime to see it for himself. He informed the accused about his visit and made “certain remarks” in court about the scene.
Of course, it’s not unusual for courts to conduct inspections of the site where an incident took place. But it’s always done after consultation with all the parties, and the presiding officer will be accompanied by the legal representatives of the parties.
Here, though, the magistrate informed neither the prosecution’s legal team nor the lawyers for the defence, but took himself off to the site alone.
This, said the two judges, was “very unfortunate” and a “material misdirection”.
He later “used his knowledge of the crime scene” to question the accused, and this was flagrantly “entering the arena”. So much so that the judges hearing the appeal were now entitled to look at the evidence afresh and decide whether, despite the magistrate’s action, the conviction could still be upheld.
In the end, for different reasons, they set it aside.
The second case, a civil matter this time, is just as bad.
It concerned a follow-up to divorce proceedings. The husband claimed his wife had lied under oath in her evidence, wrongly inflating his income to get more maintenance from him, even though he couldn’t in fact afford her claim.
He thus brought a private charge of perjury against her, after the national director of public prosecutions declined to prosecute.
‘Grave lapse of duty’
In his three-sentence ex tempore judgment, the magistrate said the court had two versions before it, and couldn’t decide between them. The law held that where a court couldn’t decide, the decision should favour the accused, in this case the wife, as the case against her hadn’t been proved beyond reasonable doubt.
The magistrate’s response was simply this: kindly take note that I have nothing to add to my reason given during my judgment
The husband later asked for reasons so that he could appeal: on what basis did he find the wife not guilty, he asked the magistrate. What were the questions of law on which he’d based his acquittal of the wife, and what were his findings of fact? The magistrate’s response was simply this: kindly take note that I have nothing to add to my reason given during my judgment.
That terse response became the basis on which the husband asked the high court to order that the magistrate provide proper reasons for his decision, as the law requires.
The judges had no hesitation. The law says a judicial officer must provide reasons for a decision. It was “indeed a grave lapse of duty” that he hadn’t given a judgment, and the problem was compounded by his refusal to give reasons as he was later requested.
The two judges thus ordered that the magistrate comply: he must set out the questions of law on which he’d found in favour of the wife, his findings of fact relevant to these questions of law, and his decision on these questions of law including the reasons for his decision.
Time for a refresher course for the magistrates in both these cases.
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