S v Siebrits
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Van Zyl AJ |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3249 (WCC) |
| Hearing Date | 08 September 2023 |
| Docket Number | A150/2023 |
Van Zyl AJ:
Introduction
On 30 November 2022 the appellant, Mr Siebrits, was convicted in the Strand Magistrate’s Court on a count of housebreaking with the intent to commit a crime unknown to the State. [1]
2023 JDR 3249 p2
Van Zyl AJ
The appellant is not unknown to the criminal courts. He has fourteen previous convictions, the majority of which relate to housebreaking and theft. Taking his record into account, the magistrate sentenced the appellant to 3 years’ direct imprisonment. He is currently in custody.
The appellant had legal representation throughout the trial, and pleaded not guilty to the charge upon which he was subsequently convicted. He appeals to this Court upon leave having been granted by the magistrate’s court.
The issue on appeal
In the application for leave to appeal the appellant raised various grounds in relation to both conviction and sentence. Leave was granted principally because the magistrate was of the view that the appellant should have been found guilty of housebreaking with intent to steal and theft, instead of housebreaking with intent to commit a crime unknown to the State.
A reading of the record reveals, however, that there is essentially one issue that requires consideration. This is the role played by the presiding officer in the course of the trial. The application for leave to appeal frames the issue as follows:
“The Honourable Magistrate erred in entering the arena and subjecting the Appellant to cross-examination.”
“The Honourable Magistrate erred in assisting the state to prove its case, by cross-examining the Appellant, as opposed to asking questions in clarification.”
“The Honourable Magistrate erred in acting beyond the scope of his powers, in that he proceeded to enter the arena and assisted the state in discrediting or trying to discredit the Appellant whilst tendering his evidence.”
2023 JDR 3249 p3
Van Zyl AJ
“The Honourable Magistrate erred in not sufficiently taking into consideration that the Appellant has a right to exercise his right to a fair trial, which includes testing the evidence of the state case and disputing the allegations against him.”
The magistrate, in granting leave to appeal, did not agree that anything had been amiss in relation to his conduct during the trial. That this complaint was raised comes as no surprise, however, when regard is had to the record.
In terms of section 35 of the Constitution of the Republic of South Africa, 1996, every accused has the right to a fair trial. One of the elements of a fair trial is an objective presiding officer.
A presiding officer is obviously not a mere figure-head. He or she is entitled to pose questions where necessary: [2]
“According to the well-known dictum of Curlewis JA in R v Hepworth 1928 AD 265 at 277, . . . ‘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.’
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. . . . And for that purpose . . . he may put the questions in a leading form – ‘simply because the reason for the prohibition of leading questions has no application to the relation between judge and witness.’”
The Court’s powers in this respect are, however, not unbridled. In
2023 JDR 3249 p4
Van Zyl AJ
Dalindyebo v S [3] the Supreme Court of Appeal stated the issue as follows:
“A judge should refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As Lord Greene MR observed in Yuill v Yuill (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning-
‘he, so to speak, descends into the arena and is...
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