Durban - Three men convicted of an armed robbery and sentenced to 18 years in jail have been freed after two appeal judges found the conduct of the trial magistrate “simply unacceptable” and fell far short of what was expected of a judicial officer.

The judges found that not only were the men incorrectly convicted by the unnamed KwaDukuza Regional Court magistrate, but they had also received an unfair trial because of her “repeated interference”.

She also made a finding that they were part of a “five-minute gang” when there was no evidence of this before the court, and added three years on to the legislated 15-year sentence for armed robbery because she believed her life was under threat from the gang.

The matter on appeal before judges Rashid Vahed and Anton van Zyl was brought by Siyanda Mkhize, Skhumbuzo Mthembu and Vusumuzi Mthembu, who were convicted for their alleged role in an armed robbery at Cheryl D Properties in KwaDukuza in June 2008.

Evidence before the court was that an armed gang ordered staff and customers into a back room and told them to lie on the floor. They stole jewellery and watches and about R19 000 in cash before fleeing.

A few days later, one of the victims said she recognised one of the robbers walking in the road. She called the police and this led to the arrests of four men, one of whom was acquitted. The other three were convicted on the identification of three witnesses. However, the accused pleaded not guilty, and two put up what appeared to be proof that they were elsewhere on the day.

Judge Vahed, who penned the judgment, said their versions were reasonably possibly true and that the State had not proved its case beyond a reasonable doubt. But, he said, the matter did not end there. Citing “the Bangalore Principles of Judicial Conduct” in South Africa, he said the magistrate’s conduct fell far short of these with her “unwarranted remarks, interventions and fundamental misdirections”.

For instance, he said, when a witness had said she was not sure if the robbers were the same people as the accused, the magistrate had said: “I don’t believe you, you are scared aren’t you. I am right?”

Most startling was that moments after the defence had finished addressing the court, she had handed down a guilty verdict

. Then, during sentencing, she said they were part of the “five-minute gang”, when there was no evidence of this.

Later, she said she was sentencing them to 15 years each plus another three years “because my life was threatened by some members of your gangs”.

“That is the information that I was given and that is why I came here under police protection. It had nothing to do with any other cases that day. It was your case,” she said.

Judge Vahed said: “It is simply unacceptable for a judicial officer to behave in that fashion.”

He set aside the convictions and sentences for all three.

The Mercury