About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 242
|
|
S v Maritz (66/2019) [2022] ZAFSHC 242 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, HELD AT BLOEMFONTEIN
Case
number:
66/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: YES
In
the matter between
:
THE
STATE
versus
JAN
GYSBERT MARITZ
ACCUSED
JUDGMENT
- LEAVE TO APPEAL RE:
APPLICATION
FOR RECUSAL
CORAM:
NAIDOO, J
HEARD
ON: 2
SEPTEMBER 2022
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives
via email. The date and time for hand-down is deemed
to be 14h00 on
16 September 2022
.
[1]
This is an application by the applicant/accused (accused) for leave
to appeal against
my judgment handed down on 14 April 2022 in respect
of an application brought by him for my recusal from further hearing
of the
trial in this matter. He seeks leave to appeal to the Supreme
Court of Appeal, alternatively, to the Full Court of this Division.
The respondent (the state) opposed the application. The accused was
represented by Adv DJ Joubert SC, instructed by BDK Attorneys.
Adv
Joubert attended the hearing virtually while all other parties were
present in court.
[2]
The judgment was assailed on a number of grounds, which, in summary
are that the court
erred or misdirected itself by finding that:
2.1 the
judge’s forty years’ experience in the legal profession
and as presiding officer enabled her
to disabuse her mind of her
personal views when adjudicating a matter before her and that the
accused failed to show otherwise;
2.2 the
unilateral revocation of the accused’s bail was not motivated
by any untoward reason;
2.3 the
court should have found that the acknowledgement of certain objective
facts constitutes a reasonable suspicion
in the accused of bias;
2.4 the
revocation of the accused’s bail was wrong in law and not in
terms of the Criminal Procedure Act,
creating the perception that the
court is not impartial;
2.5 the
court should have recused herself and ordered the trial to start
de
novo
before another court.
[3]
The test applicable to an application for leave to appeal was
correctly set out in
the Heads of Argument on behalf of the accused,
with which the state agreed. For the sake of completeness, I repeat
the legal position
as it currently stands.
Section 17
of the
Superior
Courts Act 10 of 2013
regulates the test to be applied in an
application for leave to appeal. The relevant provisions of
section
17(1)
provide as follows:
“
(1) Leave to appeal may
only
be given where the judge or judges
concerned are of the opinion that
(a)
(i) the appeal
would
have a reasonable prospect of success; or
(ii)there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter under
consideration;” (my emphasis and underlining)
[4]
Previously, an applicant was merely required to show that there is a
reasonable possibility
that another court, differently constituted,
would find differently to the court against whose judgment leave to
appeal is sought.
It is clear from
section 17(I)
, set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal is required to convince the
court that there is a
reasonable prospect of success and not merely a possibility of
success. In the matter of
The Mont Chevaux Trust v Tina Goosen +
18 2014 JDR LCC,
Bertelsmann J held that:
“
It is clear that
the threshold for granting leave to appeal against a judgment of a
high court has been raised in the new Act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion….The
use of
the word ‘would’ in the new statute indicates a measure
of certainty that another court will differ from the
court whose
judgment is sought to be appealed against.”
[5]
The Mont Chevaux decision was cited with approval in a number of
cases, one such matter
being
Matoto v Free State Gambling and
Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
, a
decision emanating from this Division, where my brother Daffue J
echoed the remarks of Bertelsmann J at paragraph 5 and remarked
that
“There can be no doubt that the bar for granting leave to
appeal has been raised…The use by the legislature of
the word
“only” emphasized supra, is a further indication of a
more stringent test.”
The
Full Court in
Acting National Director of Public Prosecutions and
Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489 (24 June
2016)
also cited Mont Cheveaux with approval.
[6]
In this matter it is useful to bear in mind that the accused, after
initially pleading
not guilty, decided to change his plea and made
numerous admissions in this regard. He was represented at the time by
two Senior
Counsel. This court convicted him on the basis of those
admissions. What remains now is for the accused to be sentenced. He
has
not specified how he would be prejudiced in the sentencing
procedure but appears to have based his application for recusal on
the
premise that he would not have a fair trial. Another factor to
bear in mind is that piecemeal adjudication is strongly discouraged
by our courts, as it impedes the expeditious finalisation of matters,
which in turn offends against the constitutional rights of
an accused
and, by implication, the state, to the speedy finalisation of trials.
The manner in which the accused has dealt with
this matter has caused
this matter to drag on for more than a year. See in this regard
Health Professions Council of South Africa and
Another v Emergency Medical Supplies and Training CC t/a EMS
2010 (6)
SA 469
(SCA)
and
Guardian National
Insurance Co Ltd v Searle NO 1999(3) SA 296 (SCA) at 301B
.
The dicta of the court in the Health
Professions Council case have been reiterated and applied in a number
of subsequent cases by
the Supreme Court of Appeal.
[7]
The judgment in this matter sets out comprehensively the law relating
to recusal of
a judicial officer and deals extensively with each
ground upon which the accused relied in support of his application
for recusal.
The grounds relied upon in this application restate the
grounds in the recusal application and simply ignore the response to
each
of those grounds set out in the judgment. It is clear when
regard is had to the judgment, that the accused’s apprehension
of bias was not reasonable as it was based on incorrect facts and
perceptions. If a judicial officer errs either on the facts or
the
law, it cannot be interpreted as an indication of bias on the part of
the judicial officer. It also noteworthy that the accused
has not
persisted in his reliance on the statements of Ms Terblanche, which
have been detailed in the judgment. The accused has
not put forward
any cogent argument that the appeal
would
have a reasonable
prospect of success on the issue of the recusal of the presiding
officer in this matter. The sentencing of the
accused would not mean
the end of the road for the accused, as he would retain his right to
appeal against both his convictions
and sentences in this matter, if
he so chooses.
[8]
Based on the court’s explanation in respect of each ground of
appeal, the accused
now contends that on a factual basis, his
apprehension was reasonable. I have set out in the judgment the
authority for the test
in this regard. If the facts upon which the
apprehension is based are incorrect, then the apprehension of bias is
not reasonable.
If the accused’s perception of a situation is
distorted due to lack of knowledge of the correct facts, as has
happened in
this matter, it does not render the apprehension of bias
reasonable.
[9]
In argument, Mr Joubert again raised the point that the affidavit
deposed to by Adv
Edeling stands as Mr Bantam did not gainsay it.
This ignores the objective facts pointed out by the court in relation
to Mr Edeling’s
interactions with the Judge while he was in the
company of the prosecutor, as well as Mr Bantam’s interactions
with Mr Edeling
and the attorney who purported to be acting for the
accused after his previous legal representatives withdrew. From what
I have
set out in the judgment, it appears that Mr Edeling’s
recollection of the events in question may not accord with what
actually
happened.
[10]
A further point raised in argument is that my confirmation of my
membership of the South African
Chapter of the International
Association of Women Judges (SACIAWJ) confirms that I would actively
support the cause of violence
against women and not bring an
impartial mind to bear upon this matter. The SACIAWJ is a
professional body whose primary objective
is to empower and advance
female judicial officers, and is unlike the organisation called the
Free Masons, which Mr Joubert likened
the SACIAWJ to. This is an
untenable and unreasonable proposition as, by implication, it would
mean that half of the Judges of
the Free State Division as well as
other female (and male) judges in South Africa, who are members of
the SACIAWJ would be disqualified
from hearing any matter involving
violence against women. All the female judges of the Free State
Division, bar one, are members
of the SACIAWJ. I should perhaps also
mention that the impugned teddy bear was in my Chambers before the
trial started and at the
time the accused made the admissions that
led to his convictions. The issue of bias only arose some five months
later, after he
spent some time in custody.
[11]
For the reasons set out in my judgment, I am of the view that the
accused has not satisfied the
threshold of the requirement that there
is a reasonable prospect of success on appeal and that another court
could would come to
a different conclusion.
[12]
In the circumstances, I make the following
order:
The
application for leave to appeal is dismissed.
S NAIDOO J