S v Jongilanga

• Jurisdiction: South Africa
• Judge: Lombard J and Pickering AJ
• Judgment Date: 09 September 1985
• Citation: 1986 (2) SA 195 (TkS)
• Hearing Date: 09 September 1985
• Court: Transkei Supreme Court

Pickering AJ:

The accused was convicted of assault with intent to do grievous bodily harm in contravention of s 93 of Act 9 of F 1983 and was sentenced to undergo nine months' imprisonment.

When the matter came before me on automatic review I asked the magistrate why he had made an entry on the record reflecting his impressions of the complainant immediately after the complainant had finished his evidence and before the State case had been closed.

G The magistrate has replied as follows:

"It is an undisputed fact that the court is bound to form an impression and view about any witness. We deal with many cases with many witnesses. It happens that the case in question is postponed for further evidence. By the time the case comes before court one only has the words in front of him. The man who said the words is no longer there. It is my view that recording the impression the court has had about a certain H witness helps the court in arriving at a just decision."

In the case of S v Nomga 1984 (3) SA 79 (N) FINDLAY AJ stated that for the magistrate to have made a finding which appears to be final in nature as to the credibility of the main State witness before the accused gave evidence in his defence where there was a plea of not guilty would normally constitute a I serious irregularity vitiating the proceedings. He stated further that it is irregular for any views as to the credibility and reliability of a witness whether provisional or otherwise to be recorded, particularly at an interim stage of the proceedings, and concluded by saying:

"If, as in the present case, such a view is recorded the conclusion may be almost inescapable that the presiding officer has already finalised his view as to the credibility of the J complainant before having heard the accused in his defence."

Pickering AJ

A FINDLAY AJ accepted that as a trial proceeds a court will obviously form impressions and views as to the credibility and reliability of a witness immediately after the witness stands down. The forming of such impressions and views is obviously not in itself an irregularity.

With all due respect to the learned Judge I cannot see why, if B a presiding officer records his impressions of a witness, the conclusion that he has already finalised his views as to the credibility of the witness becomes almost inescapable, whereas if the presiding officer forms...