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Pretoria - The conduct of a Limpopo magistrate who, even before two cable theft suspects took the stand, had decided that they were guilty, caused the Pretoria High Court to overturn their convictions and sentences, as they did not receive a fair trial.
The magistrate also threatened a State witnesses, saying she too, was “a lying thief”.
Pretoria High Court judges JW Louw and Bert Bam said the conduct of the magistrate was “completely unbecoming of a presiding judicial officer”.
The judges ordered that David Netshamutavha and Emmanuel Mutshutshudzi, who had served a year of their three-year jail sentence, be released from custody.
The two were convicted of cable theft last March and each sentenced to three years’ imprisonment.
As an irregularity in the trial was suspected, the matter was referred to the high court for review.
Judge Louw said last April that he asked magistrate MD Maluleke of Malamulele Magistrate’s Court in Limpopo for a copy of his judgment.
The magistrate sent the judgment six months later and said it was a copy reconstructed from his handwritten notes.
“A delay of this magnitude is completely unacceptable,” Judge Louw said, adding that it did not seem as if the clerk of that court and the magistrate took “inquiries from this court in review matters seriously”.
After reading the judgment, the judges questioned whether the two accused had a fair trial, especially in light of the magistrate’s handling of one of the State witnesses, a Ms Rambani, a girlfriend of one of the accused. Judge Louw referred to several examples which appeared in the transcript of her evidence, among others, where the magistrate asked her “what she had to hide”.
“Are you aware that I can lock you in? Are you aware. Are you aware,” (sic) the transcript read.
The magistrate later again threatened to “lock” up the witness, before instructing her to “stand upright”.
Another passage of her questioning in court by the magistrate read: “What are you hiding? The next moment you will be killed… Raise your voice”(sic).
He then told the woman that she was fortunate that she was not joined as an accused. He concluded his conversation with her by saying: “You are lying. You are a thief as well. Go and sit down.”
Judge Louw said it was clear that the magistrate by then - even before the accused had stated their cases to the court - had decided that they were guilty of theft and that the witness was equally guilty.
“He descended into the arena in a manner which was completely unbecoming… ”
The judge said it was not surprising that one of the accused felt aggrieved, as he felt his girlfriend (Rambani) was threatened by the court.
But the magistrate, when asked about this by the judge, was confident that both accused had a fair trial and that the witness was never threatened.
He said in his opinion the proceedings were in accordance with justice.
Judge Louw said: “The trial of the accused did not pass muster. It was unfair due to the magistrate intimidating and threatening a witness to such an extent that one of the accused, clearly a lay person, objected.”