The role of a presiding officer in a trial

6 June 2012

The Supreme Court of Appeal recently reaffirmed the principle that, in a trial, a presiding officer has to act as an impartial arbiter. A presiding officer must conduct a trial open-mindedly, impartially and fairly and such conduct must be manifest to all those who are concerned in the trial and its outcome¹  (City of Johannesburg Metropolitan Council v Patrick Ngobeni 314/11 2012 ZASCA 55).

In casu, on 15 September 2004 Patrick Ngobeni (the plaintiff) was shot by Thabo Ezekiel Ledwaba (Ledwaba), a City of Johannesburg metropolitan police officer. Ledwaba was acting within the course and scope of his employment together with his colleague Mandlakayise Lucasa Mabaso (Mabaso). The plaintiff was subsequently detained under police guard in hospital until his release on 8 April 2005.

As a result of the incident, the plaintiff has been left permanently paralysed. He instituted action against the City of Johannesburg, Mabaso and Ledwaba (the defendants) for compensation amounting to several million rand for damages suffered as a result of the incident.

He based his claim on two alternative grounds. First, he claimed that Mabaso and/or Ledwaba unlawfully assaulted him by, inter alia, pointing a firearm at him; shooting him multiple times and wounding him; and jumping on his chest. In the alternative, he claimed that Ledwaba negligently discharged the firearm in his vicinity which resulted in him being injured.

The defendants pleaded that on the night in question Mabaso and Ledwaba, in their capacity as metropolitan police officers, had stopped the plaintiff for a traffic offence and enquired whether he was in possession of a valid driver's license. While in the process of searching the plaintiff, he suddenly and without reason extracted an unlicensed firearm from his vehicle and pointed it at Mabaso. He further hit Mabaso with the firearm on his right eye and attempted, unsuccessfully, to shoot Mabaso. As a result of the plaintiff's actions, Ledwaba, sought to defend Mabaso and fired three shots at the plaintiff.

The matter proceeded to trial in the South Gauteng High Court. During the course of the trial, the plaintiff solely pursued his alternative claim by testifying that Ledwaba, who passed away before the commencement of the trial, shot him negligently and not intentionally.

On the other hand, evidence was led on behalf of the defendants in support of a defence of justification. At the end of the trial, the judge was faced with two mutually destructive versions. He accepted the plaintiff's version and held that the defendants were liable for the damages suffered by the plaintiff. The judgment of the court a quo was taken on appeal to the Supreme Court of Appeal (the SCA).

The conduct of the presiding officer

The appeal was based on various grounds primarily relating to the conduct of the trial judge. The SCA enunciated important principles relating to the conduct of presiding officers and their duty to the court. Amongst other things, the SCA held that:

• A presiding officer should guard against taking a very active role in the trial, launching into a personal fact-finding mission or descending into the "arena" as it were. This was aptly described by Harms JA in Take and Save Trading CC v Standard Bank of SA Ltd²;
• A presiding officer in a civil trial should not call witnesses without the consent of the parties³. As a general rule, in civil cases, the court has no power to call a witness without the consent of the parties;
• It is not open to a presiding officer to insist that an expert witness be called to give evidence extraneous to such witness's report where the parties have agreed to the contents of the report; and
• A presiding officer should not, out of his own initiative, order that an inspection in loco be held.

With regard to the latter observation, it is important to remember that while an inspection in loco may be held at any stage during the proceedings, it should be done at the earliest possible opportunity.

The SCA held that it is trite that an inspection in loco is ordinarily conducted upon the application of a party to the proceedings. If held at the instance of a presiding officer, he or she must explain why it is deemed necessary and observations made during the inspection need to be recorded immediately following such inspection⁴.

The SCA pronounced that serious consequences may result from a presiding officer's unjust interference with a trial, which may, in certain instances, result in a vitiation of the proceedings. The SCA also fleetingly commented that counsel should be mindful that they have a duty to the court and should not merely be content with a presiding officer's misguided conduct just because such conduct seemingly benefits their case.

The question of onus when pleading justification

The plaintiff contended during the trial that Ledwaba shot him accidentally and not intentionally. The defendants, on the other hand, contended that Ledwaba acted in self-defence. In South African law, it is accepted that an allegation of assault implies wrongfulness and that the facts which indicate a wrongful act must be alleged and proved by the plaintiff⁵. Usually, the onus on alleging and proving justification or an excuse for the assault falls on the defendant⁶.

This being said, in Mabaso v Felix⁷ the Court of Appeal suggested that the pleadings may be so formulated as to place the onus on the plaintiff. This case may be just such example as the SCA held that as the plaintiff pleaded and testified that Ledwaba negligently discharged the firearm, the plaintiff bore the onus and had to prove that Ledwaba acted negligently.

Accordingly, the defendant no longer had a duty to prove the defence of justification as it could not raise such a defence against a claim of negligence. It is expected that this approach may elicit some debate in academic circles.

The appeal was upheld with costs. Webber Wentzel acted for the defendants.

¹S v Roberts 1999 (4) SA 915 (SCA)
²2004 (4) SA 1 (SCA)
³Rowe v Assistant Magistrate, Pretoria 1925 TPD 361
⁴Kruger v Ludick 1947 (3) SA 23 (A)
⁵Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A)
⁶Matlou v Makhubedu 1978 (1) SA 946 (A)
⁷1981 (3) SA 865 (A)

By Elsa Jordaan Malan, Partner, and Raynold Tlhavani, Associate, Webber Wentzel

Published in Without Prejudice July 2012