Makoro v Magistrate Mr Petrus Erasmus
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | RD Hendricks DJP and BR Nonyane AJ |
| Judgment Date | 12 March 2020 |
| Docket Number | M 133/2019 |
| Hearing Date | 28 February 2020 |
| Court | North West High Court, Mafikeng |
| Citation | 2021 JDR 1422 (NWM) |
Hendricks DJP:
Mr. Baleseng Pienaar Makoro ("accused") stand trial in the District Court at Delareyville, before Magistrate (Mr.) Erasmus on a charge of housebreaking with intent to steal and theft. The trial commenced on 26th November 2018. Two witnesses namely Gert Jacobus Steyn, the complainant and Teko Phiilemon Molebatsi, the arresting officer testified. On the subsequent appearance on 03rd December 2018, Mr. Gonxeka, the legal representative of the accused applied for the recusal of the presiding Magistrate on the basis of allege bias. An application for the review and setting aside of the refusal of the recusal application was lodged with the Registrar of this Court on 15th March 2019. The review ultimately served before this Court on 28th February 2020.
The review application is premised on the following grounds:
The Honourable Magistrate Erasmus committed an irregularity by refusing to recuse himself on the 03rd of December 2018;
The Honourable Magistrate Erasmus remarked on 26 November 2018 whilst the Defence was still cross-examining one of the state witnesses Teko Phillemon Molebatsi that his evidence was very clear which was premature;
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The Honourable Magistrate Erasmus took over the leading of the evidence of the first state witness Gert Jacobus Steyn;
The Honourable Magistrate Erasmus committed a gross irregularity when he usurped the duties of the court interpreter during the leading of the evidence of the first state witness Gert Jacobus Steyn and
The Honourable Magistrate Erasmus' conduct in the proceedings showed that he did not approach the matter with a mind open to persuasion by the evidence and submissions of counsel."
In the founding affidavit deposed to by the accused, it is stated that the Magistrate exhibited bias in favour of the first state witness Mr. Gert Jacobus Steyn, by the Court usurping the functions of the prosecutor in leading the evidence of this witness. The record with regard to the evidence-in-chief of this witness comprise of just more than seven (7) typed pages, six (6) of which contains questions posed by the presiding Magistrate and the witness's answers thereto. The contention by the accused that the presiding Magistrate usurped the function of the prosecutor in leading the evidence of the complainant, is therefore not unmeritorious. The same applies to the evidence-in-chief of the second state witness, Mr. Molebatsi. Half of his evidence was also led by the presiding Magistrate.
The accused furthermore states in his affidavit that during the cross-examination of the second state witness, Mr. Molebatsi, the presiding Magistrate was agitated to the extent that he even answered on behalf of the witness. He also said that the evidence of this witness is very clear. This, the accused said is a clear
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indication that the presiding Magistrate aligned himself with the evidence of this witness. Furthermore, the record exhibit long arguments between Mr. Gonxeka and the presiding Magistrate during the cross-examination of the second state witness Mr. Molebatsi.
The following is an extract from the record during cross-examination of Mr. Molebatsi:
"MR GONXEKA: In Court today you have said that the accused said to you he does not remember what happened, he was drunk the previous night. He could not recall what happened. But in your statement you are, you are basically saying no this person admitted to the offence of housebreaking with intent to steal and theft. Do you see those two are different?
Do you want, do you see that? --- What I see on the statement is what he told me.
Are those not two different things, to say I was drunk I do not recall what happened and to say I was alone, I am giving you the full explanation of how this housebreaking happened. I was even alone, no one assisted me. Are those not two different things? You understand the question? Yes are those not two different things? --- Yes Your Worship they are two different.
Yes. Not (intervene).
COURT: Did he tell, did he tell both to, you or not? --- The thing is when I asked him Your Worship why he was breaking in
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is when he explained to me that to be honest he cannot remember he was drunk Your Worship.
But he did tell you that he, that he broke? And when you asked him why he said he cannot remember because he was drunk? --- Yes Your Worship.
Thank you.
MR GONXEKA: Thank you. Is there, the Court has just given you the answer. Is there any reason why you did not tell us in your evidence in chief that this accused person actually admitted to having committed this offence. Because the prosecutor asked you what did he say about the recovery of this properties? --- He admitted Your Worship that he was alone and, and the way Your Worship he said it I believe him that he was alone Your Worship.
COURT: Ja."
There is a clear exhibit of bias in the suggested answer contained in the question by the presiding Magistrate. Hence, the remark by Mr. Gonxeka "the Court has just given you the answer."
On paginated pages 47-48 of the record, the following appears:
"COURT: Mr. Gonxeka, Mr. Gonxeka I am sorry to interrupt you but the evidence is clear. In, the evidence of the witness is very clear. He said initially the guy denied. That is when he said, and then if you do not admit to this, if you deny knowledge of this we are going to have to take you to police station. He said and on,
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along the way the guy banged against the window or the, the, and got their attention.
MR GONXEKA: Yes.
COURT: And when they stopped and asked him what the problem is he said no I want to go show you where I hid it.
MR GONXEKA: Yes.
COURT: Which is a confession. That is his evidence.
MR GONXEKA: And then according to him the accused said he does not know what happened.
COURT: Because he was drunk.
MR GONXEKA: Yes.
COURT: He cannot remember (intervene).
MR GONXEKA: He, he only took out the (intervene).
COURT: When asked why did you break in he said I cannot remember I was drunk (intervene)."
In the evidence-in-chief, Mr. Molebatsi was just asked by the prosecutor whether it was correct that he is a police officer stationed at Delareyville Police Station which he confirmed. His rank is not stated on record. It was only stated that he was the arresting officer. Without stating or knowing the rank of Mr. Molebatsi,
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the presiding Magistrate already concluded that what the accused Told Mr. Molebatsi amounts to a confession. This is a misdirection on the part of the presiding Magistrate.
The record furthermore exhibit countless interruptions by the presiding Magistrate during the cross-examination by Mr. Gonxeka of the second state witness, Mr. Molebatsi. These interruptions led to long arguments and exchange of words between Mr. Gonxeka, the defence attorney and the presiding Magistrate. The following is also apparent from the record:
"COURT: But that is why you have the privilege to proceed until Kingdom come if that is (intervene).
MR GONXEKA: I was still proceeding and the Court is the one that is stopping me from proceeding.
COURT: No I am not saying, I, I believe (intervene).
MR. GONXEKA: Because the evidence is clear according to the Court.
COURT: Yes it is.
MR GONXEKA: That is my problem, how (intervene).
COURT: I have a duty also (intervene).
MR GONXEKA: Yes.
COURT: Not to have the witness being badgered.
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MR GONXEKA: I am not badgering the witness Your Worship.
COURT: I am saying that is why I am saying the answers of the witness is very clear. When he was asked he, he said the accused also said he...
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