REVIEW – QUERIES TO BE COUCHED IN RESPECTFUL LANGUGE

S v NJIVA AND ANOTHER 2017 (1) SACR 395 (ECM)

Review — Queries by reviewing judge — Queries and responses always to be couched in civil and respectful language.

 

In a review of the conviction and sentence of the two accused, the reviewing judge posed certain questions to the magistrate concerning the admissibility of statements, made verbally to a police officer, that they had stolen the goats that were the subject of the charge of stock theft against them. In his response the magistrate disputed that they amounted to a confession.

The court held on review that the statements clearly amounted to a confession and were inadmissible. The magistrate committed a further serious irregularity in questioning an accused on a previous conviction for stock theft before conviction. The convictions and sentences accordingly had to be set aside. (Paragraphs [25], [28] and [38] at 399j, 400c–d and 401f.)

As to the magistrate’s response to the reviewing judge’s queries, the court remarked that the queries of judges and responses of magistrates should always be couched in civil and respectful language. Issues should be discussed and addressed, never the persons: the exchanges should bead rem, never ad hominem. The queries raised in the instant matter were couched in respectful and moderate terms. Many of the responses by the magistrate, however, did not address the merits of the issues but rather cast aspersions on the integrity, and intellectual and judicial capacity of the judge. The intemperate, uncivil and disrespectful language used by the magistrate was not only totally unacceptable, but called for strong censure. Under our Constitution, the judiciary and magistracy constitute one undivided judiciary under the administrative management of the office of the Chief Justice. The court pointed out that it would be a sad day in our democracy if these two arms of the judiciary were allowed to continue to address each other in the terms used by the magistrate in this case.

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