LOSING YOUR COOL
The bail hearing of an alleged child rapist will have to be heard anew after the presiding magistrate was found to have shown signs of bias
ike Roman emperors, perhaps, judicial officers are generally expected not to “descend into the arena”. They should stay coolly above the fray as they consider the arguments presented to them.
But sometimes that rule is broken with dire consequences as a recent decision from the Kimberley high court shows. In that matter, Lawrence Lever, the judge hearing an urgent bail appeal, discovered that the magistrate presiding in the bail hearing had so far overstepped the mark that he had appeared biased and should have recused himself.
The case concerned Michael Mgijima, accused of raping an 11year-old girl on two consecutive days. He had asked for bail pending his trial, but because of the particular charges he faced, Mgijima had to show there were “exceptional circumstances” that would permit bail.
His bail application turned down, Mgijima appealed to the high court, complaining, among others, that the magistrate who heard the matter should have recused himself.
The hearing produced a highly unusual situation: both the state and Mgijima agreed that the magistrate had descended into the arena in the way he had questioned Mgijima and a witness.
There were two potential consequences of this, said Lever.
Either “the dust of combat may have blinded [the magistrate] to the consequences of his own conduct”, or it may have led to a “justifiable conclusion of bias” on the part of the magistrate, in the mind of an “independent, objective and properly informed observer”.
Lever remarked on the fact that both Mgijima and the state
Lshared the latter view unheard-of situation. So, what did the magistrate say in the “arena”? He had asked Mgijima “what type of person” he was, and when Mgijima said he was “an OK normal person”, the magistrate commented: “Yet you hang out with friends that are not good for you.” He then asked Mgijima if he knew the saying “Birds of a feather flock together Mgijima said he didn’t. Not even the Afrikaans saying “Soort soek soort [like seeks like]”? Mgijima said he hadn’t heard that either.
At this, the magistrate commented: “Really, Sir? You are from Kimberley an almost and you have never heard such a saying?”
Several similar exchanges followed. But the magistrate’s sparring with Mgijima’s witness, a cousin called “Bosvark”, went even further.
New hearing
Mgijima had called Bosvark to the bail hearing to say that he would provide a stable, alternative address for Mgijima should he be granted bail. But later, after a barrage of questioning by the magistrate, Bosvark said he had changed his mind, and wouldn’t be offering his cousin a place to stay after all.
That barrage included the following: “If it is indeed [a] child that he raped allegedly, what stops him from raping your child?” Next, the magistrate asked: “If that allegation is true, would you take the risk of exposing your flesh and blood, your children, your daughter, with the possibility that just one day he will snap and then he targets one of your daughters, and then? You will entertain that chance? ... You will risk taking him in with the knowledge of perhaps he can rape your own daughter? You will take that risk? ... I think it is highly irresponsible of you ... even if the allegations are untrue.”
Commenting on these and other exchanges, Lever said they showed that a reasonable, independent objective observer would form the view that there was a reasonable apprehension of bias on the part of the magistrate, and in some instances even evidence of actual bias.
Lever found, therefore, that the magistrate ought to have recused himself, that his refusal of bail had to be set aside, and that the bail matter had to be sent back for a rehearing before a different magistrate.
Lever further “commended” the representative of the director of public prosecutions for the “pragmatic and just stand” she took on the case and urged the prosecuting authority to expedite the rehearing.