S v Rall

JurisdictionSouth Africa
JudgeMuller JA, Trollip AJA and Van Heerden AJA
Judgment Date26 November 1981
Citation1982 (1) SA 828 (A)
Hearing Date06 November 1981
CourtAppellate Division

Trollip AJA:

The appellant, a White man, was tried by a Judge and assessors (two retired magistrates) in the Durban and Coast Local D Division on a charge of murder. He was defended by junior counsel. The allegation was that he shot and wounded one Ngcobo, a Black man, on the night of 29 February 1980 in the Eagle Hill Road in the residential area of Yellowwood Park, Durban. The victim subsequently died of his wounds on 3 March 1980. Appellant maintained that he had acted in self-defence, E the deceased having attacked him with what he thought at the time was a spear-like object but which subsequently turned out to be a folded umbrella. The trial Court rejected that defence. The appellant was found guilty of murder with extenuating circumstances. He was sentenced to 10 years' imprisonment. With the leave of the Judge a quo he has appealed to this Court against his conviction and sentence.

F In applying for leave to appeal his counsel (he did not appear before us on the appeal) relied inter alia on an irregularity allegedly committed by the learned Judge during the proceedings. The allegation was that while the appellant was testifying in his defence the learned G Judge questioned him in a manner that was, having regard to his judicial functions, impermissible or excessive. Apropos hereof, the learned Judge, in granting leave to appeal, said:

'... it is not for me to say anything on that aspect of the matter beyond this. In this case, as in others, I consider that I am not a referee in a game, who is here merely to blow a whistle. I am here to discover, in so far as I can, the truth of the matter. That not infrequently involves questioning one or another, and sometimes a H number, of the witnesses, they may be the accused or defence witnesses. It depends on whether the evidence is evidence that, in the Court's view, calls for much more detailed probing than it has received, or which calls for particular aspects to be investigated that occur to the Court as important, and may not necessarily occur to counsel as being important. They may sometimes turn out, in the Court's view, not to be important in the long run, but in the meantime they must be investigated in case they are. The Appellate Division must decide whether the reasonable limits of judicial questioning, whatever such may be, have been exceeded in this case.'

Before us appellant's counsel relied heavily on the alleged irregularity. Indeed, it constituted the springboard for their argument

Trollip AJA

that the credibility findings by the Court a quo appertaining to certain of the State's witnesses and the appellant should be disregarded, and that we should ourselves assess their respective credibility. So this issue has regrettably to be considered by us, and it should be dealt A with immediately.

First, some general observations.

According to the well-known dicum of CURLEWIS JA in R v Hepworth 1928 AD 265 at 277, which the learned Judge a quo obviously had in mind in his remarks quoted above:

B 'A criminal trial is not a game... and a Judge's position... is not merely that of an umpire to see that the rules of the game are observed by both sides. A Judge is an administrator of justice, he is not merely a figure-head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.'

C Inter alia a Judge is therefore entitled and often obliged in the interests of justice to put such additional questions to witnesses, including the accused, as seem to him desirable in order to elicit or elucidate the truth more fully in respect of relevant aspects of the case. (Wigmore on Evidence 3rd ed vol 3 para 784 at 151 - 2.) And for that purpose, according to the learned author (ibid at 159), he may put the questions in a leading form -

D 'simply because the reason for the prohibition of leading questions has no application to the relation between judge and witness.'

There the learned author differentiates that relation from the one between counsel and a witness he calls. Counsel is prohibited from E putting leading questions to his own witness because of the risk that the witness may perhaps think that such questions are an invitation, suggestion, or even instruction to him to answer them, not unbiasedly or truthfully, but in a way that favours the party calling him. (Cf Wigmore para 769; R v Ngcobo 1925 AD 561 at 564; R v A 1952 (3) SA 212 (A) at 222C - D.) Ordinarily that would not apply to leading questions put by F the Judge. Nevertheless, the putting of leading questions by a Judge should, I think, be...

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137 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...tice is done', it has been held to be 'equally important' that the Judge must ensure that 'justice is seen to be done'. See S v Rall 1982 (1) SA 828 (A) at 831H-832A. When the accused is unrepresented, '(t)he Judge is then in the invidious position of being an arbiter and, at the same time,......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...is done', it has been held to be 'equally important' that the Judge must ensure that 'justice is seen to be done'. See S v Rall 1982 (1) SA 828 (A) at 831H-832A. When the accused is unrepresented, '(t)he Judge is then in the invidious H position of being an arbiter and, at the same time, an......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...have been legally qualified to act as such. (As to (a) see S v Moodie 1961 (4) SA 752 (A); S v Anderson 1973 (2) SA 502 (O); S v Rall 1982 (1) SA 828 (A); I S v Sallem 1987 (4) SA 772 (A); S v Tyebela 1989 (2) SA 22 (A) and Hiemstra Suid-Afrikaanse Strafproses (4th ed) at 705 - 7. As to (b)......
  • Sefatsa and Others v Attorney-General, Transvaal, and Another
    • South Africa
    • Invalid date
    ...Afrika v Western Bank en Andere 1978 (4) SA 281 (A); R v Gumede 1949 (3) SA 749 (A); R v W and Another 1960 (3) SA 247 (E); S v Rall 1982 (1) SA 828 (A). F J L van der Merwe SC (with him E Jordaan) for the respondents referred to the following authorities: Mokoena v Minister of Justice and ......
  • Request a trial to view additional results
130 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...tice is done', it has been held to be 'equally important' that the Judge must ensure that 'justice is seen to be done'. See S v Rall 1982 (1) SA 828 (A) at 831H-832A. When the accused is unrepresented, '(t)he Judge is then in the invidious position of being an arbiter and, at the same time,......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...is done', it has been held to be 'equally important' that the Judge must ensure that 'justice is seen to be done'. See S v Rall 1982 (1) SA 828 (A) at 831H-832A. When the accused is unrepresented, '(t)he Judge is then in the invidious H position of being an arbiter and, at the same time, an......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...have been legally qualified to act as such. (As to (a) see S v Moodie 1961 (4) SA 752 (A); S v Anderson 1973 (2) SA 502 (O); S v Rall 1982 (1) SA 828 (A); I S v Sallem 1987 (4) SA 772 (A); S v Tyebela 1989 (2) SA 22 (A) and Hiemstra Suid-Afrikaanse Strafproses (4th ed) at 705 - 7. As to (b)......
  • Sefatsa and Others v Attorney-General, Transvaal, and Another
    • South Africa
    • Invalid date
    ...Afrika v Western Bank en Andere 1978 (4) SA 281 (A); R v Gumede 1949 (3) SA 749 (A); R v W and Another 1960 (3) SA 247 (E); S v Rall 1982 (1) SA 828 (A). F J L van der Merwe SC (with him E Jordaan) for the respondents referred to the following authorities: Mokoena v Minister of Justice and ......
  • Request a trial to view additional results
7 books & journal articles
  • 2018 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...283S v Radebe 2017 (1) SACR 619 (SCA) ................................................. 266S v Rall 1982 (1) SA 828 (A) ................................................................ 264, 282S v Romokoka 2006 (2) SACR 57 (W) ................................................. 344S v Robinso......
  • 2017 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...283S v Radebe 2017 (1) SACR 619 (SCA) ................................................. 266S v Rall 1982 (1) SA 828 (A) ................................................................ 264, 282S v Romokoka 2006 (2) SACR 57 (W) ................................................. 344S v Robinso......
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...435S v Raath 2009 2 SACR 46 (C) .............................................................. 452S v Rall 1982 1 SA 828 (A) ................................................................... 290S v Ramgobin 1986 4 SA 117 (N) ......................................................... 272S v......
  • Ensuring a Fair Trial: Striking the Balance between Judicial Passivism and Judicial Intervention
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...presiding ofcer should not only be impart ial but be seen to be impartial.7464 Du Toit et al Commentar y on the CPA 23-12B.65 S v Rall 1982 1 SA 828 831H.66 S v Mseleku 2006 2 SACR 237 ( NPD) 242i. 67 243b.68 R v Hepworth 1928 AD 265 278. T his decision was recent ly endorsed in S v Gerber......
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