Judgment No. CCZ 7/2015 6 Const. Application No. CCZ 472/14 Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms: “And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband’s house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?” As submitted by Mr Nkomo, the inescapable conclusion that emerges from the record is that the judge descended into the arena and as a consequence he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had prejudged the issues of the trial that was before him. The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p 568F-H, the learned jurist stated: “The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.” Section 69(1) of the Constitution reads: “Right to a fair hearing 1. Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.” One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus the State has an onus to establish every element of the offence.