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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CC 155/05

In the matter between:

THE STATE

and

LUCKY MOKHONOANA

CRIMINAL MATTER

DATE OF HEARING : 12 August 2005

DATE OF JUDGMENT : 17 October 2005

COUNSEL FOR THE ACCUSED : Mr Sentsho

COUNSEL FOR THE STATE : Mr Mooketsi

JUDGMENT

GURA J:

1. This matter comes before this court in terms of Section 52 of the Criminal Law Amendment Act, No. 105 of 1997.

2. After listening to counsel for the defence and counsel for the state on 12 August 2005, I directed the following questions to the trial magistrate:

2.1 Why was it necessary for the presiding officer to question the defence witnesses at such length?

2.2 Is such persistent and lengthy questioning not likely to create the impression that the presiding officer identified himself with the state?

3. The magistrate has responded by stating inter alia that in asking the questions he was duty bound to see to it that there were no misunderstandings or misinterpretations, as this case involved many detailed events, involving, amongst others, physical features of the accused’s home.

4. At the trial of the accused the crucial question, in my view, as the magistrate correctly put it, was the contents of the accused’s bedroom. Complainant had described the contents of that bedroom. The accused and his defence witness also described the room contents.

5. It is unfortunate that the public prosecutor who handled this case at the Regional court seemed to have misinterpreted the facts and failed to see the importance of the accused’s bedroom contents. His/her cross examination on the defence witnesses did very little to investigate this crucial point. For instance, the second defence witness was asked only six questions. It is this performance of the Public Prosecutor which lead the magistrate to a fatal trap.

6. The purpose of questioning by a presiding officer is to clarify certain issues over which there is uncertainty. It is not the duty of a presiding officer to cross examine a defence witness at such length and with such force as to create the impression that he/she is part of the prosecuting team. See S v Rall 1982 (1) SA 828 (A) and S v Kok 2005 (2) SACR 240 (NCD).

7. In this case, in my view, it is clear that the magistrate took it upon himself to cross examine the defence witnesses. He realised that the real cross examiner being the prosecutor, had failed to ask certain questions. The magistrate then asked those questions, not for elucidatory purposes but in order to assist the state. When it came to questioning state witnesses, the magistrate was inactive, but when he dealt with the defence witnesses, he was as activist.

8. After the accused testified, the prosecutor asked him twenty four (24) questions. The magistrate then asked him fifty five (55) questions. Ms Getrude Ngatle, the defence witness, was asked six (6) questions by the prosecutor. The magistrate instead put forty six (46) questions to her. Now the question is: Who actually was the real prosecutor? In my view, the magistrate overstepped the mark, he lost his impartiality and descended into the arena.

9. It is this attitude of the magistrate which constitutes a gross irregularity. The direct result thereof is that the accused did not receive a fair trial.

10. Consequently, the conviction is set aside, the case is referred back to the Regional Court (a different magistrate) for trial de novo.

SAMKELO GURA

JUDGE OF THE HIGH COURT

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