Conduct of magistrate to be probed after conviction overturned

An acting high court judge has ordered his judgment, in which he set aside the conviction and sentence of a man convicted of assaulting his wife, to be referred to the magistrate’s commission.

This is to determine if the magistrate’s utterances constitute misconduct.

Acting judge Philip Zilwa set aside the conviction and sentence of Mzwakhe Gqesha who was found guilty of assaulting his wife, Ntombekhaya, by hitting her with a spear on December 4 2023 in Tsolo.

He was sentenced to direct imprisonment of six months.

Zilwa also ordered his immediate release. Judge Lindiwe Rusi agreed with Zilwa.

In his review judgment, Zilwa said Gqesha conducted his own defence and pleaded guilty to the charge and was convicted.

Gqesha in his mitigation of sentence testified that he was a breadwinner who was supporting his wife and their grandchildren.

“I note from the record, with concern, that it was only after the accused was convicted that the magistrate inquired from him if he was conducting his own defence,” Zilwa said.

“It is the right of the accused to have a fair trial which includes the right to have legal representation, and to be informed of this right.

“A further cause for concern is the type of language the magistrate used after his conviction — it was unsavoury and less than the standard of decorum expected from a presiding officer.”

Zilwa said the sentence imposed did not include an option of a fine, and “this is apart from the fact that the accused was unrepresented”.

“Secondly, not only did the magistrate fail to satisfy himself as to the guilt of the accused, it appears from the record that he failed to appreciate the fact that, after all, the accused may have had a defence.

“There was a stage when the prosecutor ‘cross-examined the accused’ after his mitigation of sentence.

“What is of importance is that this ... brought to light facts which required the magistrate to correct the plea to that of not guilty.”

Answers during the  cross-examination revealed he had a defence, Zilwa said.

“Despite the answers by the accused when ‘cross-examined by the prosecutor’, the magistrate put questions of his own which, according to him, arose from those of the prosecutor.

“By any stretch of imagination, this is a travesty of justice.

“In the context of these proceedings, the magistrate ought to have questioned the accused at two stages — when the accused pleaded guilty  and during mitigation that would aid an appropriate sentence.

“The magistrate sought to sentence the accused for something he was not charged for.

“He made it clear in his ruling that he was not punishing him for the assault but for not respecting the complainant’s rituals.

“This is an injustice of the highest order.

“This is something that should not be allowed to happen in our courts especially to unrepresented accused who are not in position to challenge such injustices.”

He said the language used by the magistrate was degrading.

“One does not lose his esteem because he is in the dock.

“It was not necessary for the magistrate to utter the words he uttered to the accused and in the process belittling him.

“It can never be justified for the magistrate to label the accused as a good howler and further telling him that there is something wrong in his head,” Zilwa said.

“This type of language can never be acceptable in our courts even if it comes from the bench.

“I accordingly find the language of the magistrate to be distasteful, insultive and demeaning,  and it amounted to dehumanising the accused. His conduct is egregious.”

The accused had been unjustly caused to serve a direct term of imprisonment in circumstances where he did not receive a fair trial, Zilwa said.

“It is for this reason that his immediate release should be ordered.

“The interest of justice dictates that the sentence which the accused has already served is more than enough as he should have been given a suspended sentence or a fine, in my considered view.”

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