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[2022] ZAECBHC 7
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Mkolo v S In re: S v Mkolo and Others (CC40/21) [2022] ZAECBHC 7; 2022 (2) SACR 63 (ECB) (28 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
(SITTING
AT BHISHO)
Case
no. CC40/21
In
the matter between:
PUMLANI
MKOLO
Applicant
and
THE
STATE
Respondent
In
re:
THE
STATE
versus
PUMLANI
MKOLO
Accused No. 1
ZUKISWA
NCITHA
Accused No. 2
THEMBA
TINTA
Accused No. 3
LULEKA
SIMON-NDZELE
Accused No. 4
SINDISWA
GOMBA
Accused No. 5
TEMBELANI
SALI
Accused No. 6
ONDELA
MAHLANGU
Accused No. 7
VIWE
VAZI
Accused No. 8
FORTY
WINGS LOGDE
CC
Accused No. 9
NOSIPHIWO
MATI
Accused No.12
MPIDOS
EMERGENCE TRADING CC
Accused No.13
NQABA
LUDIDI
Accused No.14
JUDGMENT
ON RECUSAL APPLICATION
STRETCH
J.:
[1]
The applicant (accused 1) is one of several
accused facing charges relating to the commission of various common
law and statutory
offences, which, according to the indictment, were
committed in relation to the procurement of services and goods for
memorial
gatherings following the passing away, on 5 December 2013,
of this country’s former president, Mr Nelson Mandela. It was
anticipated that the accused would plead to the charges on 19 January
2022, whereafter the trial itself would commence on 11 April
and run
for at least two months.
[2]
On 19 January pleas of not guilty were
entered on behalf of all the accused. On the following day erstwhile
accused numbers 10 and
11 applied for a separation of trials which
was granted on 28 February.
[3]
For various reasons, which I will deal with
in due course, the trial did not proceed on 11 April. On 22 April the
applicant brought
an application for my recusal based on the
following three averments made in an affidavit deposed to by his
attorney regarding
events which had transpired on 20 April 2022:
a.
that I had indicated, in the presence of
the applicant’s newly appointed counsel and the prosecutor,
that I was not prepared
to entertain any further applications for the
trial to be adjourned;
b.
that I had informed the applicant’s
attorney that I was not Koen J and that the applicant was not the
former president Jacob
Zuma;
c.
that during the course of exchanges with
accused 2’s attorney (who was also motivating for a delay in
the commencement of
the leading of evidence pending representations
which accused 2 was making to the Director of Public Prosecutions), I
had said
the following:
‘
You
know Mr Schoombee, what concerns me is that this is a serious matter.
We all know that it is a serious matter. The media are
here. They
consider it to be a serious matter. It’s been eight months
since the final indictment was served, and the accused
are taking
opportunity after opportunity to come with last minute excuses as to
why the trial should not go on. Prima facie I believe
that this is a
delaying tactic. … I thought that to traverse this in my
chambers this morning was to canvas this with one
of your colleagues,
and was told that there would then be an application for me to recuse
myself. I don’t know whether that
is still going to be pursued,
but the point is simply that this court cannot be seen to approbate
and reprobate. It makes a mockery
of the rule of law. It makes a
mockery of the judicial system. It makes a mockery of President
Mandela’s funeral and corruption
that apparently took place at
that time, and I think people should start seeing this a little bit
more seriously. And I am not
shouting at you Mr Schoombee. I am
speaking to everybody in this room.’
[1]
[4]
The
doctrine of recusal has its origin in the rules of natural justice,
which require that a person accused before a court should
have a fair
trial. This common law position has since been entrenched in the
Constitution of the Republic of South Africa (“the
Constitution”). Section 34 of the Constitution affords everyone
in this country the right to have any dispute that can be
resolved by
the application of law, to be decided in a fair public hearing before
a court, or, where appropriate, another independent
and impartial
tribunal or forum. Section 35 is similar in that it guarantees a fair
trial for persons accused of criminal conduct.
Section 165(2) of the
Constitution requires courts to apply the law impartially and without
fear, favour, or prejudice. The oath
of office prescribed by schedule
2 of the Constitution requires a judge to swear that he or she will
uphold and protect the Constitution
and will administer justice to
all persons alike without fear, favour or prejudice, in accordance
with the Constitution and the
law. This is also reflected in article
13 of the Code of Judicial Conduct
[2]
,
which states that a judge must recuse him- or herself if there is a
real or reasonably perceived conflict of interest, or if there
is a
reasonable suspicion of bias based on objective facts. The Code
further states that a judge shall not recuse him- or herself
on
insubstantial grounds.
[5]
The
Constitutional Court has summarised guidelines for the recusal of
judicial officers as follows:
[3]
‘
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the judge
has or will
not bring an impartial mind to bear on the adjudication of the case,
that is a mind open to persuasion by evidence
and the submissions of
counsel. The reasonableness of the apprehension must be assessed in
the light of the oath of office taken
by judges to administer justice
without fear or favour, and their ability to carry out that oath by
reason of their training and
experience. It must be assumed that they
can disabuse their minds of any irrelevant personal beliefs or
predispositions. They must
take into account that they have a duty to
sit in any case in which they are not obliged to recuse themselves.
At the same time
it must never be forgotten that an impartial judge
is a fundamental prerequisite for a fair trial and a judicial officer
should
not hesitate to recuse herself or himself if there are
reasonable grounds on the part of a litigant for apprehending that
the judicial
officer, for whatever reasons, was not or will not be
impartial.’
[6]
In
SACCAWU
and Others v Irvin & Johnson Ltd Seafoods Division Fish
Processing
[4]
Cameron
AJ, in writing for the majority, said that a party applying for the
recusal of a judge bears the onus of rebutting this
presumption of
judicial impartiality and must adduce cogent and convincing evidence
of a reasonable apprehension of bias on the
part of the judicial
officer. The judge went on to point out that ‘absolute
neutrality’ is something of an illusion
in the judicial
context. This is because judges are human. They are unavoidably the
product of their own life experiences, and
the perspective thus
derived inevitably and distinctively informs each judge’s
performance of his or her judicial duties.
But colourless neutrality
stands in contrast to judicial impartiality. Impartiality is that
quality of open-minded readiness to
persuasion – without
unfitting adherence to either party, or the judge’s own
predilections, preconceptions and personal
views – that is the
keystone of a civilised system of adjudication.
[5]
[7]
Cameron
AJ went on to emphasise the requirement of “double
reasonableness” which the application of the test for bias
imports, namely that not only must the person apprehending bias be a
reasonable person, but the apprehension itself must, in the
circumstances, be reasonable.
[6]
This requirement not only underscores the weight of the burden
resting on the person alleging judicial bias or its appearance,
but
also highlights the fact that mere apprehensiveness on the part of
the litigant that a judge will be biased - even strongly
and honestly
felt anxiety – is not enough. The court must carefully
scrutinise the apprehension to determine whether or not
it is
reasonable.
[7]
[8]
In
S
v Wouter Basson
[8]
the
same court emphasised that the perception of the judicial officer’s
impartiality is crucial to the administration of justice.
A perceived
lack of impartiality constituting a reasonable apprehension of bias
is occasioned where a judge, during the course
of a trial, prejudges
a live issue pertinent to the defence of an accused.
[9]
Para [53] of
Basson
reads
as follows:
‘
It
must follow that a recusal challenge also involves a virtually
identical inquiry, namely “the social judgment of the Court”
applying “common morality and common sense” in deciding
whether the reasonable person, in possession of all the relevant
facts, would reasonably have apprehended that the trial Judge would
not be impartial in his adjudication of the case.’
[9]
Relying
on cases such as
Basson
(above)
and
S
v Le Grange & others
[10]
,
Kollapen
J identified three core principles in
S
v Djuma & others
[11]
when
addressing the issue of the impartiality of judicial officers:
a.
that there is a presumption in our law
against partiality of a judicial officer. This is largely based on
the recognition that legal
training and experience prepare judges to
determine where the truth may lie in the face of contradictory
evidence;
b.
that the presumption of impartiality is not
easily dislodged. Cogent and convincing evidence is necessary in
order to do so;
c.
that fairness requires a judge to be
actively involved in the management of the trial, to control
proceedings and to ensure the
proper utilisation of resources. It
goes without saying that this sometimes involves assertiveness and
the adopting of robust stances.
[10]
At
the end of the day, the vital ingredient of a fair trial is that
justice must be done and be seen to be done. In
S
v Booysen,
[12]
Goosen
J pointed out that in
S
v Roberts
[13]
the
SCA, in assessing the ‘reasonable-suspicion-of-bias’
test, stated that a conclusion may be drawn that a reasonable
suspicion of bias exists when it is shown that the accused, as a
reasonable person, and based on reasonable grounds, does in fact
suspect that the judge might be biased. In other words, the onus is
on the applicant to show on a balance of probability that a
reasonable apprehension exists that he, as an objective person,
reasonably perceives or believes (relying on the correct facts),
that
the presiding judicial officer is not impartial.
[14]
In
Minister
of Safety & Security v Jongwa & another
[15]
,
Pickering
J, relying on
S
v Dube & others
[16]
,
held
that there was no need to lay down a general rule as to what should
require a recusal. Pickering J held that in
Dube
,
the court had required a normative evaluation of the facts to
determine whether a reasonable person faced with the same facts
would
entertain an apprehension of bias. The enquiry, it was held, involved
a value judgment of the court applying prevailing morality
and common
sense.
[17]
[11]
In
Take
& Save Trading CC & others v Standard Bank of South Africa
Ltd,
[18]
Harms
JA stated that a judge:
‘ …
is
not simply a silent umpire… fairness of court proceedings
requires of the trier to be actively involved in the management
of
the trial, to control the proceedings, to ensure that public and
private resources are not wasted …’
[12]
In
the course of dismissing a recusal application in
Bennett
and Another v The State,
[19]
Spilg J remarked that more and more of these applications were being
brought as strategic or tactical tools or simply because a
litigant
did not like the outcome of an interim order made during the course
of a trial. Spilg J added that the seeming alacrity
with which legal
practitioners brought or threatened to bring recusal applications was
cause for concern. The recusal of a presiding
officer … should
not become standard equipment in a litigant’s arsenal, but
should be exercised for its true intended
objective, namely to secure
a fair trial in the interests of justice, in order to maintain both
the integrity of the courts and
the position they ought to hold in
the minds of the people whom they serve.
[20]
The court observed that judges were expected to be stoic and
thick-skinned. What was expected of presiding judges was clear, as
was the right of litigants to raise improper conduct by judges and,
without fear, to seek recusal. But litigants and their legal
representatives at the same time bore a responsibility not to seek
recusal as a tool. Ongoing unfounded aspersions cast on judges
could
bring about a loss of faith in the judiciary and bring it into
disrepute.
[21]
[13]
Judicial
officers must apply an objective standard and measure the facts
against that standard. In
S
v Shackell
[22]
the
SCA articulated the test for reasonable apprehension of bias as
follows:
‘
The
ultimate test is whether, having regard to (all the relevant facts
and considerations) the reasonable man would reasonably have
apprehended that the trial Judge would not be impartial in his
adjudication of the case. The norm of the reasonable man is, of
course, a legal standard.’
[23]
[14]
In
that matter Brand AJA went on to say that what was required of a
judge was judicial impartiality and not complete neutrality.
It is
accepted that judges are human and that they bring their life
experiences to the bench. They are not expected to divorce
themselves
from these experiences and to become judicial stereotypes. What
judges are required to be is impartial, that is, to
approach matters
with minds open to persuasion by the evidence and the submissions of
counsel.
[24]
[15]
As cited by the applicant’s legal
practitioners in the heads of argument in
Shackell
:
‘ …
the
apprehension of bias must be a reasonable one, held by reasonable and
right minded persons, applying themselves to the question,
and
obtaining thereon the required information … [The] test is
what would an informed person, viewing the matter realistically
and
practically – and having thought the matter through –
conclude.’
[25]
[16]
Against this backdrop, the applicant bears
the onus of proving the alleged bias on the part of this court. I now
turn to the triad
of so-called “factual events” upon
which the applicant’s two counsel rely in their heads of
argument, which call
for this court, as presently constituted, to
recuse itself from the instant proceedings.
[17]
The first factual event appears to be
linked to an assertion which I had made in chambers in the presence
of the prosecutor and
one of the applicant’s two counsel who
were appearing before me for the first time in this matter, to the
effect that I was
not desirous of entertaining any further
applications for the trial to be adjourned. The factual event,
according to an affidavit
deposed to by the applicant’s
attorney (who was not present in chambers), is described in his
affidavit as follows:
‘
On
the morning of the 20
th
April 2022, when trial was set to commence, the Court was engulfed by
the unending turns of load-shedding which necessitated the
matter to
be stalled and arranged to start at 12:00 midday. During the course
of waiting for the period of load-shedding to pass
practitioners
requested to see her Ladyship Madam Justice Stretch in Chambers to
iron out a few pre-liminary issues.
Of the pre-liminary
issues, there were three proposed applications for postponements in
respect of accused number 1, 2 and 4. The
essence of the application
in respect of accused number 1 was the reconsideration of
representation by the National Director of
Public Prosecutions as
outlined by
section 22(2)(c)
of the
National Prosecuting Authority
Act, 32 of 1998
.
A message and an
intention to see the judge in chambers was communicated to her
Ladyship’s secretary Ms Delene Matroos …
A few minutes
later Ms Matroos relayed a message from the judge that her Ladyship
only requires to see only one counsel in her
chambers to act as a
mouth piece for the rest of the defence legal representatives. The
rest of the defence counsel nominated Mr.
Matotie, leading counsel
for accused number 1, to go see her ladyship in chambers and lend an
ear for them.
Mr. Matotie, together,
with Ms Ulrike De Klerk (Prosecutor) showed faces in her Ladyship’s
chambers. He relayed the proposed
intentions of all the relevant
defence counsel to her ladyship in chambers. On his arrival in
chambers, he informed her Ladyship
of what the 4 defence counsel’s
intention was regarding the conduct of the matter and the intended
applications for postponements.
I must respectfully state that
we
were awestruck and startled
[emphasis added] by the truculent
response received from her Ladyship.
In no uncertain terms,
her Ladyship informed the defence counsel that she was not going to
entertain any applications for postponement
today at all. She further
uttered that the trial was to proceed today without delaying tactics
or excuses. What is rather baffling
with this response is that her
Ladyship already formed a preconceived judgment not to hear any
applications for postponement without
ventilating what the
applications entailed. Moreover, that her Ladyship perceived this
application to be merely a delaying tactic
without hearing the
substance and the basis for the application for postponement.
On the glaring legal
position,
this further indicated to me
[emphasis added] that
her ladyship formed an opinion, prior to actual knowledge, that the
proposed applications were merely dilatory
tactics to stall trial
from proceeding.
I do not understand it
[emphasis added] to be
the case that a judicial officer would pre-judge an application and
refuse it without hearing no matter a
belief they had.
To me
[emphasis added] this stood in the way of fair trial and fair
administration of justice.’
[18]
I must at the outset point out that the
attorney who has deposed to the affidavit in support of the
application, and the applicant
himself, who has deposed to a brief
statement headed “confirmatory affidavit”, did not
accompany counsel when I was
approached in chambers. Indeed, as the
papers stand, there is no reliable evidence on oath before me as to
what transpired in chambers.
The description on oath purporting to
relay first-hand knowledge of, and a reaction to what transpired in
my chambers constitutes
inadmissible hearsay. Differently put, the
attorney has, on oath, described an effect on him caused by words
which he did not hear
and a series of events which he did not
witness. To this end he has perjured himself. I need say no more on
the subject.
[19]
When the application was argued before me
two days later, the prosecution, in traversing the facts, correctly
pointed out that there
is a lengthy background to this matter to
which neither of the accused’s newly appointed counsel were
privy. On the other
hand, the applicant and his attorney, who deposed
to the affidavits which I have made reference to, despite having been
intimately
aware of these proceedings since they commenced, elected
not to deal with the background at all. I now turn to sketch a brief
timeline
setting out this background:
Timeline
28 July 2021:
The present indictment is served on the accused.
22 September
2021: A case
management conference, attended by the applicant’s
present
attorney, is held before Tokota J. The parties agree that the matter
must be set down for trial for the second term of
2022.
22 October 2021:
A second case management conference, attended by the applicant’s
present attorney, is held before
Tokota J. It is emphasised that all
“logistics” should be finalised before the hearing of the
main trial during the
second term of 2022. In particular, it is
recorded in the minutes that all requests for further particulars are
to be made by 5
November 2021 and that the State should respond by 29
November 2021.
29 November
2021: A
third case management conference, attended by the
applicant’s
present attorney, is held before this court as presently constituted.
Thereat the applicant’s attorney
records that he has been
instructed to brief two counsel from Johannesburg (Messrs Hodes SC
and Ngcangisa) and that they would
be available to deal with the plea
proceedings set down during the period 19 to 21 January 2022, but
that Hodes SC would thereafter
only be available in August 2022. Mr
Fredericks (for accused 2) advises that Buffalo City Municipality
(“BCM”) has
taken the decision, subject to developments
in “the Zuma matter” not to fund the trials of any of the
municipal officers
charged. Those affected were contemplating review
proceedings purportedly in terms of governing municipal legislation.
Mr Maseti
(for accused 4, 5 and 6) confirms this. The following is
recorded in the minutes: ‘Judge Stretch informed all the
practitioners
present (including accused no. 7) to advise their
clients to ensure that practitioners instructed to represent the
accused are
available on 19, 20 and 21 January 2022 (for pleas and a
previously postponed application by accused nos 10 and 11 for a
separation
of trials), as well as for the entire second term (from 11
April to 17 June 2022). Should plea proceedings and the separation
application
not be finalised on 21 January 2022, the accused and
their representatives must be available for a continuation during the
period
28 February to 2 March 2022.’
10 December
2021: a
fourth case management conference, attended by the
applicant’s
present attorney, is held before the court as presently constituted.
Mr Hodes SC, who was to represent accused
nos 1, 12 and 13, records
that he will not be available for the entire second term and asks to
be excused. The applicant’s
present attorney indicates that he
will arrange to brief counsel who will be available for all the
periods designated previously,
and will liaise with the prosecutor by
15 December 2021. It is further recorded that the applicant intends
filing a request for
further particulars (despite Tokota J’s
directive that all requests had to have been filed by 5 November
2021). The prosecutor
records that no requests have been received and
that the State and the other accused are prejudiced by the delay. The
applicant
(and by implication any other accused) is granted an
indulgence to deliver his request for further particulars by 15
December 2021.
Mr Fredericks and Mr Maseti repeat the intention of
their clients to take the decision of BCM, not to fund their criminal
trial,
on review. I made it clear that any proposed civil litigation
by four of the 14 accused (as they then were) would not be permitted
to delay the commencement, the prosecution and the finalisation of
the criminal trial. The following relevant directives were issued:
a.
All requests for further particulars must
be filed with Ms de Klerk by no later than 15 December 2021.
b.
All information pertaining to the final
status of the legal representation of accused nos 1, 12 and 13 (whose
attorney is Mr Diniso)
must be conveyed to Ms de Klerk by no later
than 15 December 2021. All communications must be confirmed in
writing for record purposes.
13 January 2022:
a fifth case management conference, attended by the applicant’s
present legal representative,
is held before this court as presently
constituted. The prosecutor records that my previous directive has
not been complied with,
and that she has still not been informed as
to who would be representing the applicant and accused nos 12 and 13.
The applicant’s
attorney advises that Mr Ngcangisa from the
Johannesburg Bar is “still on board” but that he was
undergoing a medical
procedure and as such his clients would not be
in a position to plead on 19 January 2022. I once again emphasise
that it is of
vital importance that all the accused are in a position
to plead to the charges as envisaged, on 19 January. Mr Diniso
indicates
that he will make alternative arrangements and revert. The
prosecutor records that she indeed received a request for further
particulars
from the applicant and accused nos 12 and 13 on 15
December 2022, and that she reverted by 12 January 2022.
Due to ongoing delays
regarding legal representation the prosecution pressed upon me to
make an order in terms of
s 73
of the
Criminal Procedure Act 51 of
1977
, that those accused who had not secured representation conduct
their defences in person. I was reluctant to do so as the conference
was being held virtually, and I could not satisfy myself that all the
accused were attending. I however, reiterated that my previous
admonishments and directives had the same effect, viz, that the
accused must all be ready to proceed with the trial as previously
planned. In particular I made a directive that those accused who
desired legal representation but could not afford private services,
should approach the Legal Aid Board forthwith, and if this should
happen, an official from that office should attend court on 19
January 2022. It subsequently transpired that by 19 January 2022,
none of the accused had approached the Board.
19 January 2022:
The accused plead not guilty to all the charges in open court. The
applicant is not present when this
happens. In the exercise of my
discretion I condone his absence and stay the warrant which I had
authorised for his arrest, accepting
an undertaking that he would
appear the following day. Mr Maseti enters not guilty pleas on his
behalf, which he graciously confirms
when he attends court the next
day.
20 January 2022:
Accused nos 10 and 11 bring a substantive application for a
separation of trials, repeating their lengthy
plea explanations on
oath, and annexing to their motion papers detailed affidavits deposed
to by potential prosecution witnesses
(and in particular a witness
who pleaded guilty and was convicted on counts involving corruption
such as fraud and money laundering
associated with the proposed
memorial services which form the subject matter of the prosecution’s
indictment). According
to the motion papers these documents were made
available to the present applicant’s attorney as far back as 30
August 2021.
The attorney was also present when the application for a
separation of trials was made.
28 February 2022: This
court as presently constituted delivers a 27 page judgment, granting
accused nos 10 and 11 a separation of
trials.
11 April 2022:
The leading of evidence is due to commence, but intercepted by a full
day power outage. Mr Quinn SC informs the court that he has been
instructed by the applicant through the applicant’s present
attorney to bring an application for the leading of evidence to be
suspended pending a response from the DPP to representations
for the
stopping of the applicant’s prosecution which the applicant had
delivered the previous day.
12 April 2022:
In the exercise of my discretion, and because the envisaged delay
would be relatively short and the applicant had filed his
representations before the trial was due to commence, I granted the
application and adjourned the matter for trial to 20 April 2022, on
which date it transpired that the applicant’s representations
to the DPP were unsuccessful, and that he now wished to escalate the
matter to the NDPP, and also wished to raise with the NDPP
the
question as to why he was being prosecuted when the DPP had
previously decided to withdraw the charges. It also transpired
on 12
April 2022 that accused 2 also wished to make representations to the
DPP in connection with information which she had recently
discovered
and which could potentially exonerate her. I was also informed that
accused nos 4 and 6 had approached the Legal Aid
Board (albeit at a
very late stage) and that they had anticipated that someone from the
Legal Aid Board would be present at court.
To that end the matter was
adjourned to 22 April 2022 for a representative from the Board to be
present and for the applicant to
bring his application for my recusal
as previously mentioned.
22 April 2022:
It becomes obvious that resistance to a further delay would be futile
as the Legal Aid Board reasonably required a week to consult with
successful applicants acused nos 4 and 6. The application for
my
recusal is nevertheless pursued and judgment is reserved.
[20]
Having set out this timeline, and having
illustrated how this court has on a number of occasions in the
exercise of its discretion
bent over backwards to accommodate the
applicant and his co-accused, I have some difficulty in understanding
on what basis the
applicant’s attorney, even if his evidence in
this regard were to be admissible, can suggest that this court was
not going
to be persuaded any differently. The mere fact that I
entertained the application on behalf of the second accused for an
adjournment
pending representations, and that I accepted that the
Legal Aid Board was making its best endeavours to prepare for trial
and consult
with accused numbers 4 and 6 over a very short period of
time, culminating in a situation where everyone would be ready to
proceed
on 3 May 2022, simply dispels any such notions that anyone
may have harboured. I have no doubt that if the applicant’s
newly
engaged counsel had been briefed properly on the history of
this matter going back to the first case management conference on 22
September 2021, they would have harboured a different view of this
court’s expression of exasperation (as aptly described
by the
prosecutor) at the prospect of more applications for a delay. As
stated in
Djuma
(above)
the court, in regulating its own proceedings, may from time to time
have to be assertive and adopt a robust stance.
[21]
But this is also not the end of the matter.
It is the applicant himself who must allege and prove bias or
perceived bias. Although
described as a confirmatory affidavit, his
affidavit does not, and indeed cannot confirm that of the instructing
attorney. The
attorney, in his affidavit, in the main deals with his
own emotions and perceptions. He does not even attempt to describe
the perceptions
of his client. This is why the applicant’s
affidavit could not be drafted in the usual form of a confirmatory
affidavit,
confirming what is stated about him in the main affidavit.
All it says is that the applicant has granted his attorney authority
to depose to an affidavit in support of his application. His
affidavit thereafter reads as follows:
‘
During
the hearing of this matter I have consulted with both Counsel and my
Attorney of record and I have also witnessed the remarks
made by
Ladyship Strech [sic] regarding the conduct of the proceedings at
hand as well as her confirmed stance which is reflected
on the record
of proceedings that she was not willing to entertain any
postponements of the current proceedings as well as her
remarks
relating to my attempt to stall and delay proceedings at hand.
I have also taken note
and witnessed her Ladyship’s comments regarding the fact that
she was not Koen J and that I will not
be the former President Zuma
in the current proceedings which glaringly reflects my alleged
attempt to cause a Stalingrad process
in the current proceedings.
Moreover, during the
course of the hearing when Mr. A Schoombie [sic] was addressing the
Court on the applications for postponement
a further remark was made
by her Ladyship which trampled on the presumption of innocence of
accused persons. I say so because her
Ladyship in her remarks to Mr.
Schoombie [sic] made another preconceived judgment on the apparent
corruption that took place during
President Mandela’s funeral.
I must indicate that her
remark trigger discomfort as well as an element of partiality in in
the current proceedings. For that reason,
I hold a view her Ladyship
should recuse herself.’
[22]
As I have said, the applicant’s
affidavit does not speak to the history of the matter, is not
informed by what exchanges took
place in chambers, and cannot
complain of bias either direct, indirect, perceived or otherwise.
Indeed, the facts establish that
it is as a result of this court
having been persuaded by his previous counsel to exercise its
discretion and grant a short adjournment,
that the matter was indeed
adjourned at his instance. The facts further establish that this
court, despite its bona fide expression
of exasperation and
frustration with the fact that some of the accused persons were once
again attempting to shift the goal posts,
nevertheless weighed the
prejudice of a further delay against the potential curtailment of the
right of two of the accused who
had been granted legal aid at the
11
th
hour, to properly consult with their legal practitioner, and at the
end of the day the knee-jerk reaction of counsel to this expression
of exasperation had become moot, and can best be described as an ex
post facto storm in a teacup. On the contrary, as described
in
SACCAWU,
all
this court can be accused of is an open-minded readiness to
persuasion, without
unfitting
adherence
to its own predilections.
[23]
The second factual event which the
applicant’s attorney refers to in his affidavit is that this
court outrightly and manifestly
informed him that she was not Koen J
and that the applicant was not the former President Jacob Zuma.
Despite having perjured himself
in this respect, the attorney
nevertheless embarks on an exposition of what he refers to as the
“wide meaning” which
he extracted from comments which he
was not privy to. In this respect he makes the following astounding
comment:
‘
This
comment and utterances carries a connotation that Koen J, was very
generous to have devoted time and heard a dilatory delaying
application. This at best reasonably creates an image
in
a practitioner’s mind
[emphasis
added] that her Ladyship Madam Justice Stretch pre-judged the
situation and that Koen J to have let time gone to waste
by
entertaining an application of that nature. In the end, her Ladyship
pre-judged the applicant’s application as having
been similar
to that of former President Jacob Zuma without ventilating the issues
to be raised in the application.
The utterance that her
Ladyship was not Koen J, triggers an early judgment on the
applicant’s matter without hearing. I submit
with respect that
this does not accord with the proper administration of justice and
fair hearing. It is further submitted with
respect that her Ladyship
already made an early judgment on the legally presumed innocence of
the applicant.
On the second aspect to
the utterances, President Jacob Zuma was widely and publically
described to have gone to extraordinary lengths
to prevent
investigators from accessing information likely to incriminate him in
criminal activity. When that failed and he was
charged, Zuma again
went to extraordinary lengths to stop the prosecution, recycling many
of the same “irrelevant”
or “speculative”
claims “not founded on fact” or based on “hearsay”
in an attempt to stop his
prosecution and to convince the public that
it should ignore the evidence against him.
Ultimately, President
Jacob Zuma lost every single legal battle aimed at achieving either
of the goals set out above, with his counsel
on several occasions
conceding that Zuma’s arguments had no legal merit.
I must indicate that it
leaves a bitter taste in the mouth that the very same Court which is
yet to try the applicant
equates him
[emphasis added] to a
Stalingrad stuntman. Its baffling that when her Ladyship sees the
applicant sees a model or demonstration
of what the former president
did during his legal battles without hearing the application.
Mrover [sic], during
trial in the open Court Mr Matotie once again raised these glaring
concerns to her ladyship when the proposed
application was canvassed
on behalf of accused number 1. Of significance is that on record, her
Ladyship repeated or rather confirmed
on record, the remarks she had
made in chambers. Both myself and the client heard and highlighted
the same utterances directly
from herself.
During this session in
Court and her Ladyship was engaging Mr Matotie on the comments she
made, she sought to lay out the basis
for her justified position to
make these remarks. This occurred during the hearing of this matter
when trial resumed after load-shedding.
Her Ladyship did not refute
these allegations but rather sought to stand by them and deal with
them in this application.’
[24]
Much can be said about the context in which
the applicant’s attorney complains about this second factual
event. I will make
my best endeavours to keep my comments brief and
relevant.
[25]
It
goes without saying that the applicant’s attorney is only
entitled (in the absence of evidence from the parties who approached
me in chambers) to depose to an affidavit regarding what transpired
in his presence. That would then limit his views and commentary
to
what transpired in open court, when the applicant’s counsel
placed on record that this court had, in chambers, expressed
the view
(which happens to be factually correct), that this court is not
presiding over Mr Zuma’s trial, and that the applicant
is also
not Mr Zuma. I cannot understand at all why the applicant’s
attorney would form a view that a statement which distinguishes
one
case from another, can have the effect of equating the one scenario
with the other. On the contrary, had counsel who must have
conveyed
these sentiments to his attorney and/or the applicant, been part of
the history of this matter, or had counsel made an
attempt to
elucidate what this court meant, I have no doubt once again, that any
perceptions of unfairness would have been dispelled.
This is so for
the following reasons. Each court is deemed to assume control of its
own process. On an interpretation of
Zuma,
[26]
it transpires that the presiding judge was constrained to determine a
special plea raised in limine, and that the main trial could
not
proceed before that has been dealt with, whether on the papers, or by
the leading of oral evidence or in a separate trial.
That is not what
this court has before it. There are no special pleas which require my
determination and there is accordingly no
compelling reason why the
leading of evidence should not follow forthwith. At the risk of
repeating myself, and which repetitions
the applicant and his
attorney are aware of, there is no compelling reason why
representations to the DPP and the NDPP should stall
this process.
This court is not called upon to determine those representations,
unlike a court, such as the one in
Zuma,
which
is seized with a special plea. As this court has pointed out many
times before in this matter, the prosecution can be stopped
at any
time before judgment, should representations to the DPP and/or the
NDPP succeed. But there is no reason why this trial should
not run
pari
passu
with
those representations. Ergo this court’s statement that this
trial
cannot
be equated
with
Zuma.
[26]
Repeated applications for repeated
adjournments pending the outcome of repeated collateral
representations should not be granted
simply because witnesses may
enter the witness box in the interim and say nasty things about the
accused. As pointed out by counsel
for accused number 7 who also
opposed any further adjournments: There have been in the region of 27
postponements in this matter.
It has been on the roll for about eight
years. Co-accused are entitled to exercise their rights to a speedy
trial which is constitutionally
guaranteed. The indictment is part of
a public record. The negative things which are being said about the
accused form part of
the indictment and are very much in the public
domain in any event.
[27]
As I have mentioned, on this aspect the
applicant merely says the following:
‘
I
have also taken note and witnessed her Ladyship’s comments
regarding the fact that she was not Koen J and that I will not
be the
former President Zuma in the current proceedings which glaringly
reflects my alleged attempt to cause a Stalingrad process
in the
current proceedings.’
[28]
This court cannot go to any further lengths
to explain the obvious. The accused are in any event not charged with
delay. But more
importantly, it simply begs the question as to
whether the applicant would have been more comfortable if this court
had equated
him with Mr Zuma, as opposed to having distinguished his
case from Mr Zuma’s matter.
[29]
I now turn to the third factual event
relied on for my recusal. It seems that the applicant and/or his
legal team are of the view
that I have already decided not only that
corruption did take place during the preparations for the late
President Mandela’s
memorial services, but also that the
applicant is guilty thereof. This appears to stem from my reference
to delays in bringing
this matter to finality after so many years
making a mockery of the funeral and “corruption that apparently
took place at
that time”, when I was addressing accused 2’s
attorney about her application for an adjournment.
[30]
It seems that this is the only one of the
three factual events which the applicant has elected to spend some
time on in his affidavit.
He says this:
‘
Moreover,
during the course of the hearing when Mr A Schoombie [sic] was
addressing the Court on the applications for postponement
a further
remark was made by her ladyship which trampled on the presumption of
innocence of the accused persons. I say so because
her Ladyship in
her remarks to Mr Schoombie [sic] made another preconceived judgment
on the apparent corruption that took place
during President Mandela’s
funeral.
I must indicate that her
remark trigger discomfort as well as an element of partiality in the
current proceedings.’
[31]
It suffices to say, as conceded by the
applicant’s counsel, that one is here at best dealing with
linguistics. If the word
“apparent” triggers discomfort,
it was not intended to do so. This court intended to use a word
referring to averments
which had been made. It is the custom of this
court to use the word “alleged” in this type of exchange.
Indeed, when
counsel raised this further trigger with me, I was
convinced that I had used the word “alleged” and had to
be persuaded
by the court recording that I did not. Be that as it
may. It is really not necessary for a presiding officer to proceed
every step
of the way as if he/she is walking on eggshells. The fact
is that all the accused have pleaded to the indictment. The
indictment
does not beat about the bush. It says in no uncertain
terms:
‘
The
Director of Public Prosecutions for the Eastern Cape Division of the
High Court, Grahamstown, who prosecutes for and in the
name of the
State, hereby
informs
[my
emphasis] this Honourable Court that [the applicant and his
co-accused in this matter]
are guilty
(my emphasis) of the following crimes
….’
[32]
I can give the applicant and his legal team
my full assurance that when I traversed the rather robust wording of
the indictment
(as indictments are want to be) I did not conclude
that the applicant has in fact committed these offences. This court
has over
three decades of experience in criminal litigation and
trials, having successfully read for a degree in the law before that.
It
can safely be accepted that this court knows that an accused
person is innocent until proven guilty, no matter what the indictment
says, and no matter what witnesses have said or are about to say.
This court is alive to the process that is to be followed and
that
the prosecution carries an onus to prove the guilt of persons it
accuses beyond a reasonable doubt. The applicant and his
legal team
are also invited to digest the concept that the word “apparent”
(as conceded by his counsel), has different
meanings depending on the
context in which it is used. I find it strangely amusing that both
counsel for the applicant and the
State had to resort to a dictionary
in order to attach either an innocent or guilty meaning to the
obviously innocuous words used
by this court. The applicant’s
counsel presses for an interpretation that suggests that it is
“clearly visible”
that there was corruption (which as a
matter of fact the indictment rather clearly spells out). The
prosecutor, on the other hand,
presses for the more common definition
of “seemingly real or true, but not necessarily so”.
According to the Collins
Dictionary one is inclined to use the term
“apparently” to indicate that the information one is
giving is something
that one has heard (say from the indictment), but
one is not certain that it is true eg “
Oil
prices fell this week, apparently because of over-production”.
Synonyms such as “seemingly”,
“outwardly” and “ostensibly” come to mind.
[33]
Whatever the position, it can never
reasonably be suggested that because this court referred to
“corruption that apparently
took place at the time” it
has “trampled” on the presumption of innocence. It can
also hardly be suggested that
a reasonable, objective, informed
person in the position of the applicant would reasonable perceive
bias upon hearing such a statement.
[34]
The
law relating to judicial recusal and bias is settled and certain.
There will always be disgruntled litigants and/or legal practitioners
who will attempt to navigate through what appears to them to be
loopholes and areas of subjective interpretation in the law of
judicial recusal. In the process they sometimes deceive themselves on
both the facts and the law. As stated by G. Hammond in the
foreword
to
Judicial
Recusal, Principles, Process and Problems
[27]
:
‘
Recusal
– an odd word signifying withdrawal, originating in the
religious concept of a recusant – is both an assurance
of
impartiality of justice and a field of opportunity for manipulation.
If not only every litigant who thinks that the judge is
going to be
against him but every party who has waited for a judgment and lost
can scout for objections and with the luck secure
a new Court, the
already massive cost of litigation will become uncontrollable, legal
certainty will become a cinema and the principle
that litigants
cannot handpick the court will be shot through with exceptions.’
[35]
In my view this application is not
supported by the facts or by context and seems to have been drafted
in rather a hurry without
proper consideration if only to preserve
the proceedings of 20 April 2022 in a vacuum. Having also carefully
satisfied myself once
again that all the accused will be in a
position to continue with the trial by no later than 3 May 2022, I
make the following order:
1.
The application for this court as presently
constituted to recuse itself from presiding over this criminal matter
is refused.
2.
The accused are warned to appear before
this court, sitting at Bhisho, at 09h30 on 3 May 2022 for the
continuation of this trial.
3.
The Director of Public Prosecutions and/or
the National Director of Public Prosecutions as the case may be, are
requested to urgently
consider the representations made by accused
numbers 1 and 2 in connection with this matter, and to make earnest
endeavours to
convey the outcome of the representations to the
prosecution before 3 May 2022.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date
heard:
22 April 2022
Date
delivered:
28 April 2022
Counsel
for the applicant:
Messrs L. Matotie and D. Skoti
Instructed by N.
Diniso Attorneys, East London
Counsel
for the respondent: Ms U.
De Klerk and Mr F. Mati
Instructed by the
Director of Public Prosecutions
Eastern Cape
[1]
The
excerpt from the court recording quoted in the applicant’s
attorney’s affidavit commences with the words “The
accused are taking opportunity after opportunity” and certain
portions have been omitted. For the sake of completeness
and
transparency I have included my entire address on this aspect in the
judgment.
[2]
GG
35802 of 18 October 2012
[3]
In
President
of the Republic of South Africa & others v South Africa Rugby
Football Union & others
[1999] ZACC 9
;
1999
(4) SA 147
(CC) at
[28]
[4]
2000
(3) SA 705 (CC)
[5]
SACCAWU
(above)
[13]-[14]
[6]
Par
[15]
[7]
Par
[16]
[8]
2007
(1) SACR 566
(CC) at [27]
[9]
See
S
v Lameck & others
2017
(3) NR 647
(SC) at [57], [78]-[82]
[10]
2009
(1) SACR 125 (SCA)
[11]
Unreported
GP case no A423/2015, 12 April 2017, at [14]
[12]
2016
(1) SACR 521
(ECG) at [14]
[13]
1999
(2) SACR 243
(SCA) at [32]-[33]
[14]
See
also
S
v Thomas & another
2018
(1) NR 88
(HC) at [15]
[15]
2013
(2) SACR 197
ECG
[16]
2009
(2) SACR 99 (SCA)
[17]
Jongwa
(above)
[7]
[18]
2004
(4) SA 1 (SCA)
[19]
2021
(2) SA 439
GJ
[20]
At
[113]
[21]
At
[114]-[115]
[22]
2001
(2) SACR 185
(SCA) [19]-[25]
[23]
See
also
S
v Basson
2005
(1) SA 171 (CC)
[24]
Shackell
(above)
[22]
[25]
Committee
for Justice and Liberty et al v National Energy Board et al
[1978]
1 SCR 369
[26]
S
v Zuma and Another
(CCD30/2018)
[2021] ZAKZPHC 89
[27]
Oxford
and Portland, Oregon (2009)