Over the past week, there have again been high court decisions on cases where magistrates really dropped the ball, making significant errors.
One appeal to the high court deals with an attempted housebreaking case in which the magistrate seems to have forgotten that his role was to preside rather than prosecute. The two high court judges who heard the appeal commented that, given the record, it was hardly surprising that the accused had raised the question of the role played by the magistrate during the trial.
Though a magistrate is not a “mere figurehead” and is entitled to pose questions where necessary, these powers aren’t “unbridled”. However, in this case, a large part of the evidence in chief by the accused was “conducted” by the magistrate, who also effectively took over the cross-examination. “Page upon page of the record reflects an exchange between the court and the appellant,” said the judges. From the start, the magistrate’s questioning took the form of cross-examination, punctuated with scathing remarks.
This “offends one’s sense of fairness”, the judges said, and the record gave the impression that the court “had made up its mind as to the appellant’s guilt at an early stage”.
The state had to concede in the appeal that there were no inherent improbabilities about the appellant’s version of what happened. But, as a result of the magistrate’s interventions during the trial, the accused was convicted even though the state failed to prove its case. Thus, the court had to set aside the conviction, ordering the immediate release of the appellant.
This ‘offends one’s sense of fairness’ and the record gave the impression that the court ‘had made up its mind as to the appellant’s guilt at an early stage’
Resentenced
The next case, one in which the appeal judges held there was a “grave miscarriage of justice”, concerned a woman found with Mandrax tablets in her luggage when police stopped a bus outside Beaufort West. She was the sole breadwinner for her three children and her elderly, ill mother, all of whom lived in Soshanguve, north of Pretoria.
The woman, who pleaded guilty, said she agreed to act as a drug courier because she had no work, there was no food in the house and “the wolf was at the door”.
The magistrate “alarmingly” ignored the request by the woman’s legal representative for a pre-sentence report and “took it upon herself” to declare that the children had to be removed immediately from the care of the accused, on the “entirely erroneous ground” that she had exposed the children to danger by dealing in drugs “with a street value of R360,000” in her own home.
There was, however, no evidence before the court to support the finding that the drug dealing happened at home, said the judges.
Further, the magistrate didn’t take an individualised approach to sentencing. Instead, what was on the magistrate’s mind was the need for deterrence “irrespective of the particular facts of the case”, they said.
The magistrate also held that she couldn’t consider a suspended sentence because a conviction in this case required a custodial sentence — another example of serious error, said the judges.
What particularly worried them was that the record said nothing about any feedback the magistrate might have obtained from the social workers she had directed to get basic information about the children from their mother. Nor was there anything in the record on whether the children were actually taken from their home. This was information of particular concern, as the children were so young.
In this case, said the judges, there was “regrettably, a grave miscarriage of justice” and the sentence had to be scrapped. They decided to deal with a replacement sentence themselves, rather than sending the case back for fresh sentencing. They set aside the order for the removal of the children, as well as the 16-year sentence imposed by the magistrate. It was replaced with a 10-year sentence, with all the time not yet served by the woman suspended.
To avoid any confusion, the judges spelt it out clearly: the head of the prison where she was being held had to ensure her immediate release.
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