S v Mseleku and Others

• Jurisdiction: South Africa
• Judge: Nicholson J, Theron J and Aboobaker AJ
• Judgment Date: 11 May 2006
• Citation: 2006 (2) SACR 237 (N)
• Docket Number: AR647/04
• Hearing Date: 09 February 2006
• Counsel: S Singh for the second appellant. M Mncwabe for the third appellant. O Naidoo for the State.
• Court: Natal Provincial Division

S v Mseleku and Others
2006 (2) SACR 237 (N)

2006 (2) SACR p237

Citation	2006 (2) SACR 237 (N)
Case No	AR647/04
Court	Natal Provincial Division
Judge	Nicholson J, Theron J and Aboobaker AJ
Heard	February 9, 2006
Judgment	May 11, 2006
Counsel	S Singh for the second appellant.; M Mncwabe for the third appellant.; O Naidoo for the State.

Flynote : Sleutelwoorde

Trial — Irregularity in — Presiding officer's questioning of witnesses and accused — Judicial questioning provided for B in both s 167 and s 186 of Criminal Procedure Act 51 of 1977 — Court could intervene at any time to elucidate point, but should not take over examination before parties had finished their examination of witness — Purpose of such examination to clarify points left unclear thereafter — Court not to C cross-examine witness — Court's impartiality should be evident from nature and scope of its questions — Criminal trial not a game: presiding officer's role to direct and control proceedings according to recognised procedural rules in order that justice done — In final analysis, question is whether or not accused having received fair trial. D

Trial — Irregularity in — Presiding officer's questioning of witnesses and accused — In criminal proceedings, if necessary in order that justice be done, Court coming to aid of accused represented by inexperienced counsel — Corollary appearing to be that inexperienced counsel for State should also be assisted — Undesirable that prosecutor's inexperience should lead to acquittal where evidence revealing that accused E guilty — In casu, prosecution leaving much to be desired — Since Judge asking 62% of questions, tempting to assume having played role of prosecutor — However, reading of transcript revealing no indication of cross-examination by Judge, nor asking of leading questions — Each question designed to assist Court in achieving justice under difficult circumstances — Accordingly, no irregularity having F occurred from manner in which Judge conducting trial.

Headnote : Kopnota

The three appellants were convicted in the High Court on three counts of murder. The first and third appellants received sentences of 18 years' imprisonment on each count (ordered to run concurrently), G while the second appellant was sentenced to 12 years' imprisonment on each count (likewise running concurrently). After imposing sentence the trial Judge mero motu raised the possibility of an appeal against conviction on the basis that another Court might conclude that the extent to which he had become involved in the trial was irregular and had resulted in an unfair trial. Leave to appeal was granted on H this ground (relating to the Judge's participation in the trial), and on two grounds relating to the merits (as to the credibility of one of the witnesses, and whether, based on the evidence, another Court would arrive at a different conclusion).

Held, that both ss 167 and 186 of the Criminal Procedure Act 51 of 1977 provided for judicial questioning. In addition, principles had been formulated to the effect that the Court could I intervene at any time to elucidate a point. The purpose of such examination should be to clarify any points left unclear after examination of the witness by the parties. The Court should not cross-examine a witness, and its impartiality should be evident from the nature and scope of its questions. However, in criminal proceedings, if necessary in order for justice to be done, the Court would come to the aid J

2006 (2) SACR p238

of an accused who was represented by inexperienced counsel. [The Court proceeded to review an extensive A line of authority on the point.] (Paragraphs [8] - [25] at 241d - 246h.)

Held, further, that it was necessary to examine the extent to which the trial Judge had participated in the proceedings. While a mathematical calculation of the number of questions asked was at best an inexact measure of participation, it was the method that had been used in other cases and, in casu, it revealed that, in the B trial as a whole [the Court having exhaustively reviewed the record of evidence], the Judge had asked 62% of the questions, the defence 26%, and the prosecutor 12%. In the final analysis, however, the question was whether or not the appellants had received a fair trial. This question did not turn only on the presence or absence of an irregularity or a departure from the formalities and rules of procedure, but on whether or not the trial had been conducted in C accordance with basic notions of fairness and justice. One such notion was that in criminal proceedings a Court would, if necessary, come to the aid of an accused represented by inexperienced counsel. The corollary would seem to be that inexperienced counsel for the State should also be assisted. However, in neither instance was D cross-examination by the Court permissible. (Paragraphs [26] and [55] - [60] at 246i and 253g - 254e.)

Held, further, that, in casu, the prosecution of the case had left much to be desired. For the Court to have allowed matters to proceed without interference might have resulted in an acquittal, which, if the evidence revealed that the accused were guilty, would have been a crass injustice. It was always to be borne in E mind that a criminal trial was not a game; the Judge's role was to direct and control proceedings according to recognised procedural rules in order that justice was done. In assessing whether or not a Court had properly conducted a trial, various questions could be asked: was the Judge's open-mindedness, impartiality and fairness manifest to all F concerned, especially the accused? Did the Judge refrain from questioning that - due to its length, frequency, tone or contents - might have conveyed the opposite impression? Did the Judge's manner of questioning preclude him or her from detachedly or objectively appreciating and adjudicating upon the issues being fought out by the litigants? Given the sheer volume of questions asked by the Judge in casu, it was tempting to assume that he had played the role of prosecutor. However, a reading of the G transcript revealed that there was no indication of cross-examination by the Judge, nor even of the asking of leading questions by him. Each question was designed to assist the Court in achieving justice in the difficult circumstances in which it was placed. Accordingly, no irregularity had taken place as a result of the manner in which the Judge had conducted the trial. (Paragraphs [61] - [66] and [72] at H 254f - 255e and 256b.)

Held, further, on the merits of the appeal, that the Court a quo's judgment was a detailed and well-reasoned one. The findings on the probabilities and on the credibility of witnesses could not be faulted. The Court a quo had not hesitated to find in favour of the appellants where their version was the more probable. On the other hand, the State's version had been bolstered by I the independent medical evidence called by the Court itself, and by DNA evidence. It was correctly concluded that the appellants' conduct had led to the death of the three deceased and that they had acted in concert and with common purpose. (Paragraphs [73] - [77] at 256c - h.) Appeal dismissed. Convictions and sentences confirmed. J

2006 (2) SACR p239

Annotations:

Cases cited

Reported cases

Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd1976 (2) SA 565 (A): referred to A

Hamman v Moolman1968 (4) SA 340 (A): referred to

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service1996 (3) SA 1 (A): referred to

R v A1952 (3) SA 212 (A): dictum at 222 applied B

R v Baartman1960 (3) SA 535 (A): referred to

R v Hepworth1928 AD 265: dictum at 277 applied

R v Jacobs1954 (2) SA 320 (A): referred to

R v Kumalo1947 (4) SA 156 (N): referred to

R v Laubscher1926 AD 276: referred to C

R v Ngcobo1925 AD 561: referred to

R v Solomons1959 (2) SA 352 (A): referred to

S v Mathabathe2003 (2) SACR 28 (T): dictum at 33a - f applied

S v Ngcobo 1999 (3) BCLR 298 (N): dictum at 306C - D applied

S v Rall1982 (1) SA 828 (A): dicta at 831C - 832H, 832H - 833B and 833E - 834F applied D

S v Rousseau1979 (3) SA 895 (T): referred to

S v Sigwahla1967 (4) SA 566 (A): dictum at 568G - H applied

S v Van den Berg 1995 (4) BCLR 479 (Nm): dictum at 524A - B applied

S v Van Niekerk1981 (3) SA 787 (T): referred to

S v Wood1964 (3) SA 103 (O): referred to E

S v Zuma and Others1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): dictum in para [16] applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 167 and 186: see Juta's Statutes of South Africa 2005/6 vol 1 at 1-365 and 1-369.

Case Information

Appeal from a decision in the Natal Provincial Division (McLaren J). The facts appear from the judgment of Nicholson J, in F which Theron J and Aboobaker AJ concurred.

S Singh for the second appellant.

M Mncwabe for the third appellant. G

O Naidoo for the State.

Cur adv vult.

Postea (May 11).

Judgment

Nicholson J:

[1] The three H appellants were charged before McLaren J with three counts of murder arising out of the events of 5 March 2000, when it was alleged they unlawfully and intentionally killed Sithembiso Timothy Hadebe, Muzikayifani Posselt Gumede and Craig Thabani Sizwile Mthembu. The deceased were referred to as Sthe, Muzi and Mthoko, I respectively. The State was represented by Miss Gcaba and the appellants by Adv Nxumalo. They pleaded not guilty and reserved their rights insofar as disclosing their defence.

[2] I was informed from the Bar that the first appellant has since passed away. The result of this appeal is thus academic for him, but it is J

2006 (2) SACR p240

Nicholson J

necessary to consider the merits of his appeal insofar as it impacts on the success or...