S v Rall
Jurisdiction | South Africa |
Judge | Muller JA, Trollip AJA and Van Heerden AJA |
Judgment Date | 26 November 1981 |
Citation | 1982 (1) SA 828 (A) |
Hearing Date | 06 November 1981 |
Court | Appellate 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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2018 index
...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......
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2017 index
...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......
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Author index
...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......
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