EXPLAINER | How magistrate’s error freed thief who stole socks

When a convicted offender walks free because of what many call a “technicality”, it often leaves South Africans questioning whether justice has truly been served.

But a legal expert says these so-called technicalities are not loopholes but constitutional safeguards designed to protect the fairness and integrity of the justice system.

A recent North West high court judgment set aside a Lichtenburg magistrate’s conviction and sentence after it emerged that the magistrate had presided over the accused’s bail proceedings and later the trial, during which she accepted a guilty plea and imposed sentence.

The problem was that during the bail proceedings, the accused disclosed previous convictions, information that should not be known by the judicial officer deciding guilt at trial.

Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said South African law deliberately separates those stages to protect against bias.

“As a procedural safeguard against bias, and to ensure a fair trial for an accused, it is not permitted for the same magistrate to preside over both the bail proceedings, where previous convictions are relevant, and the main trial,” Benjamin said.

“It would be legally significant, and grounds for a review in the high court, for that situation to happen. In fact, it would be the basis on which the sentence would be set aside.”

Benjamin said simply knowing about an accused’s previous convictions does not automatically amount to judicial misconduct.

“There would need to be additional evidence, such as proof that the magistrate intentionally dealt with both the bail and the trial proceedings knowing fully well that it would lead to an irregularity. It’s extremely rare for it to happen intentionally.”

Benjamin said the justice system is structured specifically to prevent this situation.

“Normally, it is two completely different magistrates who deal with the bail proceedings and those who deal with the trial.

“In most magistrates’ courts, except in very small rural towns, there is a dedicated bail or reception court. It’s precisely to avoid a situation where the same magistrate hears evidence about prior convictions during bail and later has to decide the case,” he said.

Benjamin said that even if a magistrate later claims not to remember hearing the accused’s previous convictions, the law focuses on the appearance of fairness rather than memory.

“In this case, the law was working as it should,” he said.

“The fact that the magistrate presided over both the bail application and the trial is enough for the conviction and sentence to be set aside.”

Benjamin explained that once such an irregularity is discovered after conviction, the matter must be referred to the high court on automatic review.

If the issue is identified before judgment is delivered, the magistrate should instead recuse themselves and allow the matter to begin afresh before another judicial officer.

Benjamin said while the outcome may appear frustrating, procedural fairness protects everyone involved in the criminal justice system.

“Court procedure is important in protecting the integrity of the legal process, and ensuring fairness to both the accused and the prosecution,” he said.

“This ruling affirms the importance of the procedure, regardless of the fact that the outcome is unfortunately that someone who has committed a crime must now be released.”

Sowetan