‘Poor judicial service’ – High court rebukes magistrate in oral judgment dispute

In a rare case of a judicial official scrutinising another in the courts, the Free State High Court has directed a magistrate to submit written reasons for an oral judgment.

In its findings, the high court says Magistrate P Bester “failed to render a judgement” by not providing the reasons as requested.

The court also ordered the Department of Justice to pay the complainant’s legal costs in the case emanating from divorce proceedings in Bloemfontein.

This came after the ex-husband filed papers in the high court against Bester, the department and the ex-wife.

Verbal judgement

According to court papers, the ex-husband laid a charge of perjury against his former wife in 2021, accusing her of lying under oath.

He alleged she inflated their financial status before the court during their bitter divorce proceedings.

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The perjury case was privately prosecuted by Bester after the National Prosecuting Authority (NPA) declined to prosecute.

In acquitting the ex-wife in 2022, Bester gave a verbal judgment but did not provide the reasons, despite the complainant asking the court for the written judgment.

The complainant then approached the high court to have Bester’s oral findings thrown out.

‘Court unable to decide’

Bester gave an ex tempore judgment, meaning the judgement was delivered orally at the end of the hearing.

“Madam, we have got two different versions before the court of what happened, and at this stage, the court cannot decide between the two versions.

“And it is quite clear in law, if the court cannot decide you must get the favour of the decision of the court.

“If this court at this stage finds the case against you is not proved beyond a reasonable doubt, then you are found not guilty and are discharged,” Bester was quoted as saying.

This left the former husband dissatisfied with the outcome, urging Bester to provide the rest of the judgement with the reasons thereof.

In his written response to the complainant, Bester wrote: ” Kindly note that I have noting (sic) to add to my reason given during my judgement.”

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The ex-husband told the high court Bester’s response fell short in terms of section 310 of the Criminal Procedure Act (CPA) and he wanted it set aside.

Magistrate ‘failed to render a judgement’

Judge Nokuthula Daniso addressed the “question of law” in her finding, saying the CPA must be read with Rule 67 (12) of the magistrates’ court rules.

She said litigants are entitled to reasons, more so when an appeal is launched because written judgements are crucial in such instances.

“In this matter, except to flittingly state the “law” enjoins him to discharge the third respondent on the basis of the divergent versions proffered by the parties regarding the circumstances under which the third respondent [ex-wife] deposed to the rule 43 affidavit, the magistrate did not render a judgment.

“The magistrate’s failure to render a judgment is indeed a grave lapse of duty. What compounds the situation is the magistrate’s refusal to provide reasons when he was subsequently requested to do so.

“In my view, the magistrate’s conduct is what is aptly described as “poor judicial service”, read her judgement.

Bester was ordered to appropriately respond to the complainant’s request and set out the legal basis for the acquittal, including his reasons.

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