Constitutional
Referral
1.
GOWORA
JCC:
On
3 February 2014 under Case No HB158/13,
the High Court sitting at Bulawayo convicted the applicant of murder
with actual intent to kill. After finding that there were no
extenuating circumstances surrounding the commission of the offence,
the court passed a sentence of death.
2.
The background facts surrounding the applicant's conviction and
sentence were the following. The deceased and the applicant had a
love relationship which had, at the time of the deceased's demise,
lasted a number of years. As a measure of his love, the applicant set
the deceased up in business, in the form of a shop in the rural area
in which the deceased resided. The deceased was allegedly not happy
with the treatment that the applicant was subjecting her to and
terminated their relationship. She subsequently entered into a new
relationship with another man.
3.
The applicant was not happy with this development. After unsuccessful
attempts to resuscitate the relationship, he proceeded to her
residence accompanied by a friend and a police detail. Thereafter the
parties proceeded to the business premises where the applicant shot
the deceased and the policeman after conducting enquiries on the
status of the business venture. The deceased died at the scene
leading to the arrest of the applicant and thereafter his conviction.
An automatic appeal followed against the conviction and sentence by
operation of law.
4.
On 17 November 2014, in his appeal before the Supreme Court, the
applicant alleged that the High Court had violated his right to a
fair trial and applied that the matter be referred to this Court in
terms of section
175(4) of the Constitution of Zimbabwe
(“the Constitution”).
The relevant subsection reads:
“(4)
Powers of courts in constitutional matters
If
a constitutional matter arises in any proceedings before a court, the
person presiding over that court may and if so requested by any party
to the proceedings must refer the matter to the Constitutional
Court unless he or she considers the request as merely frivolous or
vexatious.”
5.
The Supreme Court agreed that the request was neither frivolous nor
vexatious and consequently made the following order:
“IT
IS ORDERED THAT:
Two
constitutional issues have arisen.
1.
The appellant alleges that his right to a fair hearing guaranteed by
section
69(1) of the Constitution of Zimbabwe
was violated by the presiding Judge who descended into the arena.
2.
The appellant was given a sentence which was not competent in terms
of the law. In particular he was sentenced at a time where Parliament
had not enacted a law providing the circumstances in which a death
sentence may be imposed in terms of section 48(2) of the Constitution
of Zimbabwe.”
6.
Before us, counsel for the applicant and the respondent are agreed
that the application is properly before this Court. I proceed now to
consider each of the issues referred to this court for determination.
Whether
the applicant's right to a fair hearing was violated
7.
The object of a criminal trial is for the truth surrounding the
commission of the offence to be established. The role of the judge is
therefore an onerous one as his task is to see that justice is not
only done, but that it is seen to be done. In this exercise he should
conduct himself in such a manner that he is not viewed or perceived
to have aligned himself with either the prosecution or the defence.
He is not precluded from questioning the witnesses or the accused
person but such questioning must not be framed in such a manner as to
convey an impression that he is conducting a case on behalf of one of
the parties. The judge must avoid questions that are clearly biased
and show a predisposition on the part of the judge. The judge should
neither lead nor cross-examine a witness.
8.
The complaint by the applicant is that the trial court descended into
the arena of conflict between himself and the State thereby violating
his right to a fair trial as guaranteed by section
69(1).
The applicant further contends that the record of proceedings shows
that the court was not impartial. It is argued further that the
questioning of the applicant by the trial judge was such that,
because of its frequency, length, timing, form, tone, content, it was
apparent that the trial judge was hostile to the applicant.
9.
The limits to which a judicial officer may question a witness or an
accused person in a criminal trial were aptly set out by TROLLIP AJA
in S
v Rall
1982
(1) SA 828 at 831H-832H
in the following terms:
“While
it is difficult and undesirable to attempt to define precisely the
limits within which such judicial questioning should be confined, it
is possible I think, to indicate some broad, well-known limitations,
relevant here, that should generally be observed (see e.g. S v
Sigwala 1967
(4) SA 566 (A) at 568F-H).
1.
According to the above quoted dictum of CURLEWIS JA the judge must
ensure that 'justice is done'. It is equally important, I think,
that he should ensure that justice is seen to be done. After all,
that is a fundamental principle of our law and public policy. He
should therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those who are
concerned in the trial and its outcome, especially the accused (see,
for example, S v Wood 1964
(3) SA 103 (O) at 105G;
Rondalia Versekeringskorporasie van SA Bpk v Lira 1971
(2) SA 586 (A) at 589G;
Solomon and Anor NNO v De Waal 1972
(1) SA 575 (A) at 580H).
The judge should consequently refrain from questioning any witness or
the accused in such a way that, because of its frequency, length,
timing, form, tone, contents or otherwise conveys or is likely to
convey the opposite impression (cf Greenfield Manufacturers (Temba)
(Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976
(2) SA 565 (A) at 570E-F;
Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F).
2.
A judge should also 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 Yull v Yull (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 liable to have his vision
clouded by the dust of the conflict. Unconsciously he deprives
himself of the advantage of calm and dispassionate observation.'
(See,
too, the Jones case (supra) at 159C-E). Or, as expressed by WESSELS
JA in Hamman v Moolman 1968
(4) SA 340 (A) at 344E,
the Judge may thereby deny himself -
'The
full advantage usually enjoyed by the trial judge who, as the person
holding the scale between the contending parties, is able to
determine objectively and dispassionately, from his position of
relative detachment, the way the balance tilts.'
The
quality of his views on the issues in the case, including those
relating to the demeanour or credibility of the witnesses or the
accused or the relative probabilities, may in consequence be
seriously impaired (see eg, R v Roopsingh 1956
(4) SA 509 (A) at 514-5).
And, if he is sitting with assessors, that may well adversely
influence their deliberations and opinions on those issues.
3.
A judge should also refrain from questioning a witness or the accused
in such a way that may intimidate or disconcert him or unduly
influence the quality or nature of his replies and thus affect his
demeanour or impair his credibility. As LORD GREENE MR further
observed in Yull's case supra at 189B-C:
'It
is further to be remarked, as everyone who has had experience of
these matters knows, that the demeanour of a witness is apt to be
very different when he is being questioned by the judge to what it is
when he is being questioned by counsel, particularly when the judge's
examination is, as it was in the present case, prolonged and covers
practically the whole of the crucial matters which are in issue.'”
10.
In this case, it was contended on behalf of the applicant that the
manner in which the learned judge in the trial conducted himself
revealed hostility to the applicant. In S
v Mangezi
(1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:
“It
is not only when a judicial officer shows his bias that his leading
or cross-examination of a witness may be condemned, it is also the
fact of taking over the examination of the prosecution or defence
witness that is not permissible.”
11.
Further to the above, the applicant has contended that the intensity
of questioning by the judge whilst he was under cross-examination was
more extensive than that of the prosecutor. Whilst the prosecutor put
a total of 144 questions to the applicant during his
cross-examination, the questions from the judge during the same
cross-examination was a record 122. When the applicant's counsel
sought to re-examine the applicant, the learned trial judge put to
the applicant an additional 24 questions bringing the total number to
146.
12.
However, it is not just the number of questions or their longevity
that the applicant contests, it is also the content of the questions
and the form that they took that is being complained of. Mr
Nkomo
drew the attention of the court to the impugned exchanges between the
court and the applicant. To illustrate the gravity of the complaint,
I set out a few examples of the same. The learned judge, after an
answer to a question by the applicant, was heard to interject:
“No,
no, no… this does not make sense. What was happening to the money,
you were making profits and that is why you were running the
business, so what was happening to the money?”
13.
Further on in the record, the learned judge, during the
cross-examination of the applicant, also commented to an answer by
the applicant in the following terms:
“And
when she tells you that she was married and you did not believe her
and you go there to find out if she is married, and you find the
deceased coming out of the husband's house you say that is
provocation? You wanted to go and find out whether she was married
and you found out she was married and you still say it was
provocation?”
14.
As submitted by Mr
Nkomo,
the inescapable conclusion that emerges from the record is that the
judge descended into the arena and as a consequence he deprived
himself of the detached impartiality required of a judicial officer.
The fairness of the trial was clearly undermined. He had prejudged
the issues of the trial that was before him. The remarks of HOLMES JA
in S
v Sigwala
1976
(4) SA 566 (AD)
are apposite. At p568F-H, the learned jurist stated:
“The
principle is clear. A judicial officer should ever bear in mind that
he is holding a balance between the parties, and that fairness to
both sides should be his guiding star, and that his impartiality must
be seen to exist. There are occasions, particularly where a party is
unrepresented, when the judicial officer will properly take some part
in the examination of witnesses, but in the main, and as far as is
reasonably possible, he will usually tend to leave the dispute to the
contestants, interrupting only when it is necessary to clarify some
point in the interests of justice. Thereby he is better able to form
objective appraisals of the witnesses who appear before him, and he
also avoids creating wrong impression in the minds of those present.”
15.
Section
69(1) of the Constitution
reads:
“Right
to a fair hearing
(1)
Every person accused of an offence has the right to a fair and public
trial within a reasonable time before an independent and impartial
court.”
16.
One of the fundamental principles of criminal law is that a person
charged with a criminal offence is presumed to be innocent until the
prosecution proves that he committed the offence with which he is
charged. Thus the State has an onus to establish every element of the
offence.
17.
The rules of natural justice require that whoever takes a decision
should be impartial, having no personal interest in the outcome of
the case and that a decision should not be taken until the person
affected by it has had an opportunity to state his case. A judicial
officer has an obligation to ensure that a trial is conducted in a
manner that is fair to all parties before him. To that end, the
judicial officer is required to leave the dispute to the parties
before him as far as is reasonably possible, and should interrupt
only when it is necessary to clarify some point in the interests of
justice.
18.
In view of the stance assumed by the learned trial judge, the defence
proffered on behalf of the applicant was not properly evaluated thus
further undermining the trial.
His
right to a fair hearing as guaranteed under section
69(1)
was clearly violated.
19.
In my view the finding that the trial was not fair determines the
application, and it becomes unnecessary to resolve the question
relating to the constitutional validity of the sentence of death
imposed upon the applicant. One of the two issues referred to this
court by the Supreme Court has been decided in favour of the
applicant. Both counsel are agreed that it would be in the interests
of justice if the proceedings in the High Court were to be set aside
as being inconsistent with section
69(1)
the Constitution.
Under such circumstances no benefit would ensue from a determination
on the question of the constitutional validity of the sentence when
the trial proceedings have been set aside. It is further agreed
between counsel that it would be in the interests of justice if the
matter were to be remitted for trial de
novo
before a different judge.
Accordingly
it is declared that:
The
applicant's right to a fair hearing in accordance with section
69(1) of the Constitution
has been violated by the proceedings in Case No HCB158/13.
Accordingly
the following order will issue:
IT
IS ORDERED THAT:
1.
The proceedings conducted under Case No HCB158/13 be and are hereby
set aside.
2.
The matter be and is hereby remitted to the High Court in Bulawayo
for trial de
novo
before a different judicial officer.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ:
I agree
GWAUNZA
JCC:
I agree
GARWE
JCC:
I agree
HLATSHWAYO
JCC:
I agree
PATEL
JCC:
I agree
GUVAVA
JCC:
I agree
MAVANGIRA
AJCC:
I agree
Messrs
R Ndlovu & Company, appellant's legal practitioners
The
National Prosecuting Authority, respondent's legal practitioners
