MAGISTRATE SHOWING BIAS IN CALLING WITNESSES

S v HELM 2015 (1) SACR 550 (WCC)
Evidence — Witnesses — Calling, examination and refutation of — By court — Section 186 of Criminal Procedure Act 51 of 1977 — Incumbent upon judicial officers to constantly bear in mind that their bona fide efforts to do justice could be misconstrued — Requirement of impartiality — Magistrate showing bias in calling witnesses in attempt to fill gaps in state’s case — Evidence not taking state’s case any further — Conviction set aside on appeal.
The appellant was charged in a regional magistrates’ court with eight counts of assault with intent to do grievous bodily harm and one count of contravening s 30(2) of the former Child Care Act 74 of 1983, in that she had taken up children in a place of care without the facility being properly registered. There were also alternative counts to the eight counts of assault, namely contraventions of s 50(3) of the Child Care Act, in that she had maltreated the children in question. The principal witness for the state was the appellant’s employee who testified that she had been regularly instructed by the appellant to orally administer a potion to the children which the appellant had prepared by grinding tablets with a spoon and then dissolving them in water. She explained how the appellant had become increasingly stressed and irritated with the children at the crèche that she ran and how the almost daily administration of the potion to the children put them to sleep, thus enabling the appellant to get on with her Bible study and other preferred activities at home. A number of expert witnesses were called, who testified on the pharmacological effects of certain of the supposed substances involved in the potion, on the forensic analysis of samples seized by the police at the crèche and on the calibration and accuracy of equipment used in the analysis of the samples and the condition of the children upon medical examination. On 2 August 2010, upon conclusion of argument on both sides, the magistrate postponed the matter for two months to enable her to prepare her judgment. The case was then again postponed until 21 January 2011, when the magistrate informed those present at court of her decision to call two further witnesses in terms of the provisions of s 186 of the Criminal Procedure Act 51 of 1977 (CPA). The matter was then postponed to 14 February 2011, on which day the magistrate called the two witnesses in question, one of whom was an employee from the pathology laboratory, on the calibration, accuracy and use of the machines used by the firm. This witness’s name had not previously been mentioned in the evidence and it appeared that the magistrate must have made her own enquiries to establish her ability and availability to testify. The other witness called by the magistrate was employed by the state’s Forensic Chemistry Laboratory in Woodstock, who testified in contradiction to the state’s earlier witness that she and not the state’s witness had analysed the samples in question. The magistrate convicted the appellant on the main count of assault with intent to do grievous bodily harm in respect of the eight children, as well as on the charge relating to the non-registration of her crèche. She sentenced the appellant to five years’ direct imprisonment under the provisions of s 276(1)(i) of the CPA for the assaults, and to a fine of R1000 or six months’ imprisonment in respect of the count relating to the non-registration of her crèche. On appeal against the conviction and sentence it was contended on behalf of the appellant that the regional magistrate had acted irregularly in calling the two witnesses.
Held, that there was an obvious tension between the need to fulfil the role of a judicial officer and the need to avoid conduct which was irregular, and which could result in a failure of justice in the context of the exercise of the discretion by a judicial officer under s 186 to call additional evidence. It was incumbent upon judicial officers to constantly bear in mind that bona fide efforts to do justice could be misconstrued by one or other of the parties as undue partisanship and that the right balance had to be found between undue judicial passivism and undue judicial intervention.
Held, further, that in the present case the additional evidence of the witnesses called by the magistrate really took the state’s case no further. And yet, this notwithstanding, the regional magistrate had sought to rely on that evidence in an obvious attempt to fill the gaps in the state’s case. It was really that part of her finding which exposed the court a quo’s intervention in the proceedings for what in truth it was: undue intervention prompted by undue partiality towards the cause of the state.
The court held on the evidence that the state had not established that the substances had been administered to the children or that it was a noxious substance. The appeal against convictions upheld and sentences set aside.

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