Magistrate taken to task for remarks about Zim

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Published Aug 26, 2016

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Pretoria - “Judges' disease”, which sometimes rears its head among irritated judicial officers, was under the spotlight when two judges criticised a magistrate for her unfortunate remarks about Zimbabweans.

The magistrate, referred to only as “learned magistrate” in the judgment, was sentencing a Zimbabwean national for theft.

It was not indicated in the judgment which court was involved.

“You are the third Zimbabwean I see today and it is forever housebreaking and theft. And I understand why. It is because maybe in your own country circumstances are dire - there is no economy left. And now people seem to steal in this country. Before too long we would be like Zimbabwe; there will be no economy,” the magistrate told Fortune Dube in sentencing him to 15 years in jail.

Dube turned to the Gauteng High Court, Pretoria, to appeal the sentence meted out last year after he was convicted of stealing a truck and groceries from a supermarket chain store.

Acting Judge N Nkosi said the common law right of each accused to a fair trial must be respected.

If there was any suspicion that a presiding officer had showed bias on facts which had nothing to do with the case, then this right was interfered with, the judge said.

“The magistrate had no right to have uttered these words. She generalised about Zimbabweans.

“That statement may well be understood in certain quarters to be promoting xenophobia,” Judge Nkosi said.

He referred to remarks made earlier by a Supreme Court of Appeal judge who said “Judicial officers sometimes develop 'judges' disease' - the symptoms of which are pomposity, irritability, talkativeness, proneness to obiter dicta, or statements made in passing.

“If anything, the present case demonstrated just that about the magistrate. It was unnecessary to have made such remarks,” Judge Nkosi said.

The judge added that as if this was not enough, the magistrate further made a note to the prison authorities: “Please note, accused is a Zimbabwean national and when paroled must be handed to the Department of Immigration.”

Judge Nkosi said there was no legal or factual basis for the magistrate to make this order, as it was not her duty to deal with immigration issues.

“There is a government department that is empowered to deal with such issues. That order is unconstitutional and must be set aside.”

It emerged that Dube was legally in the country.

The judge further found that the magistrate was too harsh on Dube in sending him to prison for 15 years, as there were mitigating factors such as that he was taking care of eight children.

The unsympathetic magistrate commented that “every criminal has children”.

Judge Nkosi reduced the sentence to 10 years.

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