SECTION 1 - FUNCTIONS AND RESPONSIBILITIES OF MAGISTRATES

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SECTION 1

 FUNCTIONS AND RESPONSIBILITIES OF MAGISTRATES

 

Role of magistrates

Reid-Rowland 16-3 – 16-5

 

The criminal law regulates behaviour within the society. It seeks to prevent those forms of misbehaviour which are detrimental to society. It does this by providing for the imposition of punishment upon all those found guilty of such misbehaviour. Punishment causes suffering and some forms of punishment, such as imprisonment, cause great suffering. In dealing with criminal cases magistrates have awesome powers and they thus have a most grave responsibility to exercise these powers in a completely fair and just manner. The fate of fellow human beings lies in their hands. They decide whether a person is innocent or guilty of criminal conduct and thus whether or not that person is to be subjected to punishment. If they make wrong decisions either innocent persons will suffer unfairly or guilty persons will unjustly escape punishment.

 

Magistrates must decide all criminal cases on a fair, objective and impartial basis. A magistrate must first decide whether or not the accused person is guilty after carefully considering all the evidence laid before him or her. If the magistrate finds the accused person guilty, he or she must then carefully decide upon the appropriate penalty to impose upon the convicted person.

 

Magistrates must act scrupulously as impartial adjudicators. They must keep open minds and they must refrain from doing anything which could create the impression that they are biased or partisan in their approach. See “How magistrates deal with proof of criminal guilt” by F. Edkins in (1988) Legal Forum Vol. 1 No. 2, p 13.

 

In Musindo 1997 (1) ZLR 395 (H) the court reiterated the need for judicial officers to treat the prosecutor and unrepresented accused equally and even-handedly. It pointed out that there are many pressures attendant upon the judicial function and many temptations to impatience and cynicism. Those who are charged with the burden of decision cannot always conceal their irritation with the incompetent or unprepared lawyer, with the idle submission or the ignoble stance. But judges and magistrates owe it to their own self-esteem; to the dignity of their office; to the credibility of the legal system; and most of all, to those who attend their judgment, to comport themselves in such a way as persuades all before them that a fair hearing was afforded and an honest and considered decision was handed down. Audience that is fairly given to both contending parties is most likely to result in a decision that not only commends itself as even-handed but is also just. An appearance of disfavour in the proceedings, conversely, is calculated to result in a decision which fails to command confidence and which is the more likely to be wrong.

 

The function of magistrates is more than acting as mere umpires in a game who are there to see that neither side commits fouls. They must direct and control the trial according to recognised rules and procedures and ensure that justice is not only done but is manifestly seen to be done. Magistrates must strive to ascertain the truth in all cases which come before them. They should not, however, descend into the arena of a trial. In order to find out the truth, magistrates are entitled and, indeed, are duty bound to question witnesses and accused to clarify points which are unclear in their testimony. They must not, however, take over the examination in chief or cross-examination of witnesses. They must refrain from questioning in a manner and to an extent which gives the impression that they are no longer impartial. They should not engage in prolonged questioning of witnesses. If they do intervene to an excessive extent in a trial they will eliminate or impair their ability to assess the evidence independently and impartially or to adjudicate upon the evidence. For instance, it will be difficult for them to assess the calibre of evidence given by witnesses and to form impressions of their demeanour if they engage in vigorous and extended questioning of those witnesses.

 

See Hove S-64-88 p 5; Magoge 1988 (1) ZLR 163 (S); Wright S-183-89 pp 6-7. In Magoge, the magistrate stepped in and engaged in protracted questioning of State witnesses because their testimony did not wholly support the State case. This, said the Supreme Court, amounted to exhibiting partiality towards the State and created the impression that the magistrate was throwing his weight on the side of the prosecution.

 

Magistrates must apply the criminal law without fear or favour as this law applies equally to all persons, immaterial of rank, status or standing within the society. The high and the mighty are to be treated the same as the lowly and humble.

 

Characteristics of good judicial officers

 

A good judicial officer must be

  • dedicated to the pursuit of justice;
  • diligent, disciplined and organised in his or her approach to work;
  • fair and completely impartial when hearing cases;
  • dignified and neat and tidy in his or her appearance;
  • patient and polite but able to command respect and to exercise firm control over the proceedings in the courtroom;
  • attentive and observant when listening to evidence;
  • logical and able to use common sense in reasoning out a case and in arriving at a judgment;
  • able to make up his or her mind and to reach decisions; and
  • have some sense of humour.

 

A bad judicial officer, on the other hand, will have at least some of the following characteristics:

 

He or she will be lazy, badly disciplined, disorganized, sloppy in appearance, impatient and ill-tempered, partisan in favour of the prosecution and against accused, undignified, too weak to exert control over the proceedings, confused and illogical in his or her reasoning processes and indecisive and unable to make up his or her mind and to arrive at decisions.

 

Behaviour of judicial officers

 

If judicial officers behave in a scandalous, disreputable or opprobrious fashion inside or outside the courtroom, the public will have no respect for the system of justice and that system will fall into disrepute and cease to function properly. They must ensure that they conduct themselves both inside and outside the courtroom in a seemly fashion. For example the public will have little faith in a magistrate who frequents seedy pubs and is often seen in a badly intoxicated state in public places.

 

Judicial officers must also refrain from becoming involved in contentious organisations and activities within society. If they did do this it could lead the public to believe that they will be partisan in judging certain types of cases. This applies particularly where magistrates are located in small communities.

 

See the Hon. Chief Justice Gubbay’s article “Attributes, Attitudes and Comportment of Judicial Officers” (1988) Legal Forum Vol. 1 No. 1, p 3 and “Judicial Ethics” by the Hon Mr. Justice McNally (1989) Legal Forum Vol. 1 No. 5, p 1.

 

Magistrates must conscientiously perform their duty to administer justice. They must conduct criminal trials fairly and impartially. Their own personal behaviour must be beyond reproach; if it is not the system of justice will be brought into disrepute.

 

Bias

General

 

Every accused person has the right to a fair trial by an impartial judicial officer. For the public to have confidence in the administration of justice, it is essential that the courts are seen to be fair and impartial.

 

Tests for bias

 

The tests for bias on the part of a judicial officer are objective: whether, as a matter of fact, there is a real possibility of bias, or whether there is a reasonable belief that a real likelihood of bias exists. In either case the party seeking recusal must show a reasonable fear, based on objective grounds, that the trial will not be impartial: Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H).

 

Where a reasonable suspicion of bias could be created, the judicial officer should transfer the case to one of his or her brother or sister judges at the court.  A judicial officer should therefore not try a case if X or the complainant is his friend or enemy or is his relative So too he should not try a case involving his wife’s mother or the spouse of one of his long standing and trusted court officials.

 

Although the judge may be confident that he or she can exclude from his or her mind his or her relationship with the party concerned and judge the case solely on the basis of the evidence, he or she should recuse himself because the public may well believe that his or her decision was influenced by his or her relationship to X or the complainant. Thus, if he or she ends up convicting and severely sentencing a person whom he or she is known to have quarrelled with in the past, it might well be thought that his or her decision was influenced by his or her hostility to X. So too he or she should not try a case involving his or her spouse’s mother or the spouse of one of his or her long-standing and trusted court officials.

 

In Mahlangu v Dowa & Ors HH-4-11 the court held that the test to be adopted in determining whether or not a judicial officer should recuse him or herself is a two-fold, objective, test: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by 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 the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. Where an applicant makes an application of this nature, the court should not take it as an affront. What defines the reasonableness of the applicant and the apprehension itself is the nature of the link or association between the judicial officer and the parties in the litigation.

 

In Nhire & Anor HH-619-15 the trial magistrate requested a judicial review of a part-heard trial, after the complainant in the matter alleged that the accused person was a friend of or related to the magistrate and that magistrate should recuse himself. Although the magistrate denied the allegation, he nonetheless considered that at the heart of the test for recusal lies the principle that justice should not only be done but be seen to be done; on this basis, justice would not be seen by the complainant to be done if the trial magistrate were not to recuse himself.

The court held that all too often judicial officers are faced with allegations of bias, some justified, but most not borne out by the facts. It is important that judicial officers handle this criticism with utmost sensitivity as the perception of bias might, unfortunately, crystalize into fact. Various tests have been proposed, which are to the effect that in considering whether there is a real likelihood of bias, the court does not look at the mind of the judicial officer himself. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit, and if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; there must be circumstances from which a reasonable man would think it likely or probable that the judicial officer would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. The principle enshrined in the authorities is that no reasonable man should, by reason of the situation or action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. A judicial officer should therefore so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused.

Two considerations are built in. The first is that in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. On the other, the presumption is not easily dislodged.  It requires “cogent” or “convincing” evidence to be rebutted. The second in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context.  This is because judges are human.  They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.  But colourless neutrality stands in contrast to judicial impartiality. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views – that is the keystone of a civilised system of adjudication. Impartiality requires, in short, “a mind open to persuasion by the evidence and the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding.

Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors. On the one hand, it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a bench be discouraged. On the other, the courts’ very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is as wrong to yield to a tenuous or frivolous objection as it is to ignore an objection of substance.

Onus

The onus is on the applicant to establish on a balance of probabilities that there is a real likelihood of bias. See Nhire & Anor HH-619-15.

Recusal because of relationship with party to proceedings

 

A judicial officer should not try a case if X or the complainant is his friend or enemy or is his relative. So too he should not try a case involving his wife’s mother or the spouse of one of his long standing and trusted court officials. Although the judge may be confident that he or she can exclude from his or her mind his or her relationship with the party concerned and judge the case solely on the basis of the evidence, he or she should recuse himself because the public may well believe that his or her decision was influenced by his or her relationship to X or the complainant. Thus, if he or she ends up convicting and severely sentencing a person whom he or she is known to have quarrelled with in the past, it might well be thought that his or her decision was influenced by his or her hostility to X. So too he or she should not try a case involving his or her spouse’s mother or the spouse of one of his or her long-standing and trusted court officials.

 

In Mahlangu v Dowa & Ors HH-4-11 the applicant, a senior legal practitioner, had been arrested and detained. An urgent application was made for his release on bail and a declaration that his arrest and detention were unlawful. The first three respondents were police officers, cited in their personal or official capacities. Before the application could be heard he was granted bail by a magistrate. The urgent proceedings were converted to an ordinary application. At the hearing, the applicant's counsel sought the recusal of the presiding judge on the grounds that she was married to a senior officer in the police force and that she would be biased in favour of the respondents on the basis that the application related to her husband's subordinates and superiors respectively. The applicant also argued that because of her marriage the judge may have had prior knowledge of facts that would influence her in ruling in favour of the respondents.

 

The court held no reasonable person would entertain an apprehension that a judicial officer would be biased in favour of the police simply by virtue of a marriage to a police officer. A litigant must advance more information to warrant the apprehension. A sizeable number of matters before the court, both criminal and civil, relate to the police. There was no distinction between the present matter and those other matters where the police are litigants. The apprehension expressed by the applicant would mean that the judicial officer would have to recuse himself or herself from almost all the cases where the police and its officers are litigants. Such an apprehension would be unreasonable.

 

Recusal on grounds of manner judicial officer conducted case

 

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the applicants were arraigned before a regional magistrate, for trial on charges of escaping from prison. The trial did not start at the planned time. When it resumed, counsel for four of the applicants was not present. The magistrate nevertheless, in spite of the applicants’ protests and a request for postponement, ordered the applicants to give their defence outlines. Counsel returned when the first applicant was giving his defence outline. It was argued that the dismissal of the applicant's applications for postponement when their counsel failed to appear in time, and his requiring them to immediately give their defence outlines, reflected an extraordinary eagerness of the magistrate and the Attorney-General to fast track the trial and that this raised a reasonable apprehension of bias in the applicants.

 

The court held that a judicial officer is expected to manage his court in the interests of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered. A judicial officer, can in a proper case, insist that a scheduled trial must begin. That would not, in the absence of other apparent motives, be an indication to a reasonable litigant of bias. A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. The need for efficient court management by judicial officers must, however, give way to the delivery of quality justice, which must be seen to be done. In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes. Here, the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified in suspecting delaying tactics on the part of the applicants and their legal practitioner.

 

However, the judicial officer must not conduct a criminal trial in a manner that will create the impression that he or she is biased against the accused. In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the conduct of the magistrate towards the applicant throughout the trial was such that a fair trial of the applicant was impossible in her court. Apart from a number of irregularities, there were numerous indications of biased and irrational conduct on the part of the magistrate, all of which showed that the applicant would have reasonable grounds to suppose that he or she might be disadvantaged in the trial by reason of bias or prejudice actuating her. The conduct of a judicial officer during the course of the trial can lead to a reasonable apprehension of bias. Judicial officers who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness.  They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted.  If magistrates take over the role of examining or cross-examining witnesses they will not be able objectively to adjudicate on the evidence.  They should not engage in questioning in way that gives the appearance that they are displaying bias in favour of prosecution

Recusal on grounds of prior knowledge of case by judicial officer

 

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the applicants were arraigned before a regional magistrate, for trial on charges of escaping from prison. Counsel asked the magistrate to recuse himself on the grounds that because he had presided in the cases of two men who were participants in the applicants' alleged attempted escape from prison. They had pleaded guilty and been sentenced to terms of imprisonment. It was argued that the applicants reasonably believed that the magistrate's knowledge of their case gained from his presiding over the other case would make it impossible for him to impartially assess their evidence, in view of the fact that the two men would testify for the State in the applicants' trial. The magistrate refused to recuse himself, and an urgent application was made to the High Court seeking a stay of the proceedings before the magistrate pending review by the High Court.

 

The reasons for recusal in the present case was not actual bias but an appearance of bias, which is the applicants' perception of how the magistrate was conducting their case, based on how he handled preliminary applications in their case, his exposure to information about their case and his refusal to recuse himself. An application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable. Mere apprehensiveness on the part of a litigant that a judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law. A judicial officer is expected to manage his court in the interests of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered. A judicial officer, can in a proper case, insist that a scheduled trial must begin. That would not, in the absence of other apparent motives, be an indication to a reasonable litigant of bias.

 

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. The need for efficient court management by judicial officers must, however, give way to the delivery of quality justice, which must be seen to be done. In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes. Here, the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified in suspecting delaying tactics on the part of the applicants and their legal practitioner.

 

The fact that a judicial officer previously made a decision about substantially the same dispute between the same parties and that he must therefore be biased, when he presides over the same parties' dispute for the determination of a further issue arising from the one already decided, is answered by the principle of res judicata, putting that judicial officer in the same position as any other judicial officer. In such a case there would be no reason for the judicial officer to recuse himself, because once a matter is res judicata it cannot be decided again on the same issue. Here, however, two disputes were not between the same parties. The applicants' apprehension of bias could not be defeated by the principle of res judicata. In this case the issue of there having been an attempt to escape from prison was not res judicata between the applicants and the State. It had never been decided between them. Justice will not be seen to be done when a magistrate who has convicted an accomplice has to determine whether that an accomplice is telling the truth when he comes before him as a witness to tell the same story but now for the purpose of securing the unconvicted accomplices' conviction. The court held that even though the magistrate was a trained judicial officer, and there was a presumption of judicial impartiality in his favour, that could not convince the applicants, to believe that he will dispassionately assess the evidence of witnesses he previously believed and convicted having accepted that they correctly confessed their part in the crime the applicants were facing. The applicants' apprehension was reasonable, and the proceedings before the magistrate would be stayed.

Manner of bringing application for recusal

 

If the judicial officer is biased or there is a reasonable suspicion that he or she will be biased, the defence lawyer has a duty to raise this matter and to request that the magistrate recuse himself or herself. However the lawyer should make the application for the recusal of a judicial officer respectfully and tactfully. The judicial officer should where possible be informed of the application and the grounds for it before it is made. This can be done by going to see the judicial officer in his chambers, together with the prosecutor, and telling him why it is felt he should recuse himself. This will enable the judicial officer to consider the question in private and to avoid the possible embarrassment of an application being made in open court. In S C Shaw (Pvt) Ltd v Minister of Lands S-32-05 the lawyer representing a client who was challenging the validity of compulsory acquisition of land alleged that the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land, together with improper pressures brought to bear on judges by members of the government and cabinet, was not compatible with constitutional concept of a fair trial before an independent tribunal. No evidence was submitted in support of this allegation. It was held that courts in Zimbabwe have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make irresponsible submissions scandalizing the court mere admonition is inadequate and action should be taken to punish such legal practitioners for contempt of court.

 

Application based on what client tells legal practitioner without checking facts

 

Before making an application for a judicial officer’s recusal, the legal practitioner must satisfy himself or herself that there are well-founded grounds for applying for the recusal of the judicial officer concerned. The legal practitioner must not simply base the application on what he has been told by his client without checking this information. Thus in the case of Muzana & Ors S-105-89, the Supreme Court severely censured a defence lawyer who had made serious allegations of partiality and bias on the part of a magistrate in an effort to get him to recuse himself.  He had simply repeated his client’s assertions without having made any effort to check whether there were any facts to substantiate these allegations.

 

Application for recusal because magistrate was harsh sentencer

 

In Mutizwa HB-4-06 the accused asked the magistrate to recuse herself, as he had heard, through prison talk, that she had a reputation for imposing harsh sentences. The magistrate dismissed the application. The court held that an impartial judicial officer is a fundamental prerequisite for the fair trial and a judicial office should not hesitate to recuse 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. The duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he or she may not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his or her impartiality that is important. The issue of actual bias does not arise. In the present case the accused had not established an appearance or apprehension of bias; the basis for the application is that the magistrate is known for imposing severe sentences. The accused sought recusal so that he could be tried by a magistrate who was perceived to impose lenient sentences. This “fishing” for judicial officers is not what this principle is intended to achieve. Severe sentences are not indicative of bias, nor are lenient sentences indicative of fairness or lack of bias. It is the competence of the sentence that matters, and the judicial officer has wide discretion on the question of punishment.

Disclosure of previous convictions before conviction

 

If the prosecutor wrongly discloses the previous convictions to the magistrate during the course of the trial, the judicial officer is obliged to recuse himself or herself. If he or she does not do so, the defence lawyer should request that her or she recuse himself or herself.

 

Stay of proceedings pending review

 

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the court held that judicial officers generally recuse themselves on their own motion or on application by a party, on realizing the presence of facts disqualifying them from presiding over a case. If the judicial officer does not recuse himself in such circumstances, a party who applies for the judicial officer's recusal and his application is turned down is most likely to succeed if he applies for the stay of the proceedings pending review.

 

In Masedza 1998 (1) ZLR 36 (H) the applicants were being prosecuted for a criminal offence in the magistrates court. During an adjournment of the proceedings, the applicants became aware of certain facts and, based on these facts, they applied for the recusal of the presiding magistrate. The magistrate refused the application. The trial was postponed to enable the magistrate’s decision to be taken on review. The applicants applied to the High Court for an order stopping the criminal proceedings in the magistrates’ court, pending a review of the decision in relation to the application for recusal. The High Court held that if in the present case the application for recusal had been well founded, the court would have been prepared to grant an order stopping the trial pending review, as no purpose would have been served by putting accused through motions of a trial that would have been abortive. If there had been a reasonable apprehension of bias then justice will have failed and it might not be attained by other means. However, it found that the grounds upon which recusal was requested did not give rise to a reasonable apprehension of bias and thus the application for stopping the criminal proceedings failed.

Recusal during trial and after conviction

 

If a magistrate has to recuse himself during the course of the trial, the case cannot be taken over from that stage by another magistrate.  The case will have to start de novo before a different magistrate.  If, however, a magistrate recuses himself after he has convicted X, the case can be referred to a different magistrate for sentence: Moyo & Ors HB-211-87.

 

Descending into arena

 

Magistrates who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness. They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted. If magistrates take over the role of cross-examining witnesses they will not be able objectively to adjudicate on the evidence.

 

However, magistrates are obliged to ensure that undefended accused receive fair trials. Especially where undefended accused are unfamiliar with court proceedings, magistrates must appraise the accused persons of their rights and, where necessary, ask questions of witnesses to discover the truth.

 

In Kaseke 1996 (1) ZLR 51 (S) the Supreme Court pointed out that while judicial officers are frequently cautioned not to descend into the arena, this does not mean that they must simply adopt the position of an umpire in a game, to see that neither side commits a foul. They are there to direct and control the trial according to recognised rules and procedures and to ensure that justice is not only done but seen to be done. They have the right, if not the duty, to examine witnesses or the accused in order to clarify some point in the interests of justice, but must refrain from doing so in a way which may, on the one hand, either disconcert the witness or unjustly affect the quality of his replies and, on the other hand, preclude an objective determination and adjudication of the issues that they are being called on to determine.

 

In Konson CC-7-15 the applicant was convicted of murder in the High court and sentenced to death. In his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial, as guaranteed under s 69(1) of the Constitution, by the extent to which the trial judge had descended into the arena. It was alleged that the record of proceedings showed that the court was not impartial. It is argued the questioning of the applicant by the trial judge was such that, because of its frequency, length, timing, form, tone, content, it was apparent that the trial judge was hostile to the applicant. The trial judge asked more questions of the applicant during cross-examination and re-examination than did the prosecutor.

 

The Constitutional Court decided that the object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one, as his task is to see that justice is not only done, but that it is seen to be done. In this exercise he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person but such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a predisposition on the part of the judge. The judge should neither lead nor cross-examine a witness. He should so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused. In this case, the inescapable conclusion that emerged from the record is that the judge descended into the arena and as a consequence he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had prejudged the issues of the trial that was before him. In view of the stance assumed by the trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.  His right to a fair hearing was clearly violated. The proceedings would be set aside and a trial de novo before another judge would be ordered.

Management of case flow

 

Case Flow Management can be used by Magistrates as a tool for ensuring that speedy, smooth and inexpensive justice is achieved through early disposition of cases. The Judicial College has drawn up instructions on how to manage case flow. These helpful instructions are included in this Handbook as Appendix 2.