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[2022] ZAECMKHC 93
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Mzendana v Muller and Another (307/2020) [2022] ZAECMKHC 93 (8 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 307/2020
In
the matter between:
SIYABULELA
MZENDANA
Applicant
and
THE
MAGISTRATE: Ms MULLER
First Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent
JUDGMENT
RUGUNANAN
J
[1]
This is an application for review emanating
from the district magistrates’ court in Stutterheim. The
applicant seeks orders
reviewing and setting aside the first
respondent’s decision refusing and/or dismissing the
applicant’s recusal application
in criminal proceedings pending
before the first respondent, and directing that the matter proceed
de
novo
before another magistrate. The
applicant is an accused in criminal proceedings in which he faces a
charge of reckless or negligent
driving. The first respondent is the
magistrate who presided in the criminal proceedings and the second
respondent is the Director
of Public Prosecutions.
[2]
The application is founded on
section
22(1)(b)
of the
Superior Courts Act 10 of 2013
, which will be
referred to later in this judgment.
[3]
The first and second respondents have
opposed these proceedings and have sworn out answering affidavits in
opposition thereto. Both
respondents have made common cause in their
opposition to the merits of this application and in raising the point
in limine
that the applicant has unreasonably delayed by more than a year in
bringing these proceedings. Although in his papers the applicant
simultaneously took the point that the respondents have not sought
condonation for their delay approximating some 10 months in
filing
their answering affidavits, this aspect was, in the interests of
expedition and finality, not pursued with in argument.
[4]
The decision on which the review
application is posited was made on 28 January 2019 and the
proceedings were instituted on
11 February 2020, almost 13 months
after the first respondent’s refusal to recuse herself.
[5]
I should add that the respondents’
point
in limine
is taken in circumstances in which the applicant’s founding
affidavit does not at all address the delay in launching these
proceedings. Seeking to address the issue in reply, the scant detail
proffered by the applicant is limited to the averment that
the record
was made available to his attorneys in dribs and drabs until 20
September 2019, whereafter it was wholly transcribed
as a complete
copy on 9 January 2020.
[6]
In
Valor
IT v Premier, North West Province and Others
[1]
the approach to the question of delay - and a court’s
discretion to condone it - was put as follows:
‘
Whether
a delay is unreasonable is a factual issue that involves the making
of a value judgment. Whether, in the event of the delay
being found
to be unreasonable, condonation should be granted involves a
“factual, multi-factor and context-sensitive”
enquiry in
which a range of factors – the length of the delay, the reasons
for it, the prejudice to the parties that it may
cause, the fullness
of the explanation, the prospects of success on the merits –
are all considered and weighed before a
discretion is exercised one
way or the other.’
[7]
In
their sweep, the factors suggest that the exercise is not undertaken
in a vacuum.
[2]
The ‘factual,
multi-factor, context-sensitive’ framework broadens the scope
of the exercise, and although in certain
circumstances some factors
may justifiably be left out of consideration
[3]
,
the advised framework renders the inquiry flexible.
[4]
[8]
In the present case the applicant’s
prospects of success on the merits, as a particular attribute of the
inquiry, renders
it unnecessary to labour this judgment by dealing
with the preliminary issues in any particular detail. While I
consider the delay
by the parties to be culpable (this having been
correctly conceded for the applicant by his counsel), it affords
neither of them
any substantial advantage. The papers are, in any
event, not voluminous – and the conclusion reached in this
judgment, quite
sensibly, necessitates that this matter be disposed
of as expediently as possible and in the interests of justice. I
hasten to
add that future litigants approaching this court in review
matters emanating from the lower courts should not presume that this
court will adopt an indulgent attitude in circumstances of delay. In
this matter, the approach adopted should be seen as the exception
rather than the norm.
[9]
I now turn to address the merits of the
review application and its legal framework.
[10]
The point of substance in the applicant’s
argument is that the first respondent was biased in favour of the
State. The factual
matrix occasioning the applicant’s cause for
complaint is set out as follows.
[11]
The trial commenced on 3 August 2017. On 28
January 2019, being the date on which the application for recusal was
made, the State
had already called and disposed of the evidence of
two witnesses. The third witness was still under cross-examination by
the applicant’s
legal representative when the application for
recusal was made.
[12]
Relying on excerpts from the transcript of
the proceedings before the first respondent, and quoted at length in
the applicant’s
heads of argument, the submission is made that
the material at the very least is indicative of an apprehension of
bias on the part
of the first respondent. It is contended for the
applicant that the clarity seeking questions posed by the first
respondent are
problematic because they were leading in nature and
some were on aspects that had not been raised in examination in chief
nor during
cross-examination. In amplification, it was contended that
in some instances the effect of questioning by the first respondent
was that of augmenting the case for the State on issues that were
left out in the evidence in chief by the prosecutor. In short,
it was
argued for the applicant that the first respondent had donned the cap
of the prosecution and effectively enhanced the case
for the State.
[13]
Section 22(1)(b)
of the
Superior Courts
Act, provides
that the grounds upon which the proceedings in any
Magistrates’ Court may be brought under review before a court
of a Division
are ‘interest in the cause, bias malice or
corruption on the part of the presiding judicial officer’.
[14]
Bias
in the judicial sense has been said to mean – ‘a
departure from the standard of even-handed justice which the law
requires from those who occupy judicial office’.
[5]
[15]
Not
only does the law require a judicial officer to conduct a trial
open-mindedly, impartially and fairly, but such conduct must
be –
‘manifest to all those who are concerned in the trial and its
outcome, especially the accused’.
[6]
[16]
It
is settled law that not only actual bias but also the appearance of
bias disqualifies a judicial officer from presiding (or continuing
to
preside) over judicial proceedings.
[7]
[17]
The
above principles are so well established that they are now locked
into section 165(2) of the Constitution
[8]
which provides that ‘the courts are independent and subject
only to the Constitution and the law, which they must apply
impartially and without fear, favour or prejudice’. Viewed
objectively, a judicial officer who thus sits on a case in which
he
or she should not be sitting, is either actually biased or there
exists a reasonable apprehension of bias.
[9]
[18]
In
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[10]
,
the test for the determination of whether or not a judicial officer
should be disqualified on the grounds of bias was laid out
as
follows:
‘
It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the
onus
of establishing it rests upon the applicant. The question is whether
a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or will not bring
an impartial mind to bear on the adjudication of the case,
that is a
mind open to persuasion by the evidence and submissions of counsel.
The reasonableness of the apprehension must be assessed
in the light
of the oath of office taken by the Judges to administer justice
without fear or favour; and the 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 relevant personal
beliefs or
predispositions. They must take into account the fact 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 reason, was not
or will not be impartial.’
[19]
Paring
down the aforegoing, the requirements of the test are the
following:
[11]
‘
(1)
There must be a suspicion that the judicial officer might, not would,
be biased.
(2)
The suspicion must be that of a reasonable person in the position of
the accused or litigant.
(3)
The suspicion must be based on reasonable grounds.
(4)
The suspicion is one which the reasonable person referred to would,
not might, have.’
[20]
Proceeding to the merits of the matter, and
mindful that each case must be dealt with according to its own
circumstances, one may
generally accept that judicial officers will
rein in attributes of their personal and professional experience and
training to fulfil
their adjudicative function – and that
engagement with legal practitioners may also, and in appropriate
circumstances, be
robust.
[21]
It is evident from the segments of the
transcript quoted at length in the applicant’s heads
of argument that aspects
of these attributes – particularly on
the merits of the case – have been brought into the matter from
a subjective
position assumed by the first respondent. These aspects
related to the absence of cattle on the road, the speed at which the
accused
had been travelling, and whether there were skid marks on the
tarmac. Against the backdrop of having raised a defence of sudden
emergency, in which the version of the applicant is that a collision
with an oncoming vehicle ensued when he tried to avoid cattle
on the
road, counsel for the respondents submitted that the evidence
elicited by the first respondent’s ‘eagerness’
in
questioning of the State witnesses was neutral and does not on its
own establish a basis for her disqualification. To the contrary,
it
was submitted for the applicant that the above issues affect the onus
and go to the heart of the State’s case, and where
such
evidence was not led by the State, it was impermissible for the first
respondent to have engaged with these issues under the
guise of
seeking clarity.
[22]
What was submitted to have been the first
respondent’s eagerness led to an impasse during
cross-examination of the third state
witness by the applicant’s
legal representative. It is timely to repeat the following exchange
between the first respondent
and the applicant’s legal
representative:
‘
Mr
Sonamzi: Madam, can I go back to the question that
you can answer, what else after you saw the flickering,
after the
warning, what else do you see other than the cattle?
Court:
Isn’t the question a bit
wide? I mean there is a lot of things
to see, on the road.
Mr Sonamzi:
Madam, may I request that I be given an opportunity to cross-examine
the witness freely, because.
Court:
Are you alleging that I am interfering?
Mr Sonamzi:
I am not.
Court:
Are you alleging that I am interfering.
Mr Sonamzi:
Maybe madam, I am not comfortable.
Court:
Then you should put it on record
so.
Mr Sonamzi:
I have that belief, every time I am asking a question.
Court:
Let me tell you what is going on
here, you are hammering on the one
point and one point and one point, you want cattle on that road, and
the lady said now for the
past 20 minutes there was no cattle on the
road her side.
Mr Sonamzi:
We have done with that.
Court:
Now I am talking, stop interfering.
Mr Sonamzi:
Okay, ma’am, please.
Court:
And stop interrupting me, is it
clear?
Mr Sonamzi:
It is clear, ma’am.
Court:
I am talking.
Mr Sonamzi:
Okay, please.
Court:
You put a question to her, that
is as wide as the road, what else did
you see, what else did she see, did she [see] trees, did she see
cars, did she see cattle,
did she see people running, did she [see]
little birds in the sky, be more specific.
Mr Sonamzi:
I don’t want to suggest answers to her, I was not there.
Court:
You are not suggesting answers
to her, you are asking questions that
she cannot answer, because your questions are too wide.
Mr Sonamzi:
With due respect ma’am, that is [how] I was [taught] to
cross-examine the person.
Court:
Then go ahead how you were [taught],
but just get to the point.
Mr Sonamzi:
Hence I am saying, Your Worship, may I be allowed to cross-examine
the witness.
Court:
Sir, don’t teach my job to
me, is that clear?
Mr Sonamzi:
It is clear madam. Hence I am saying.
Court:
You are this far from contempt
of court, I am warning you.
Mr Sonamzi:
Okay, okay, it is fine.’
[23]
Upon contextualising the scope of the above
engagement with the evidence traversed by the first respondent’s
questioning of
the State’s witnesses, there is no room for
suggesting that they are random or inconspicuous occurrences that do
not by themselves
establish a basis for disqualification. Although
the atmosphere in the courtroom and conduct of the participants
cannot be recreated
by reference to the record, I am of the opinion
that a more restrained approach by the first respondent would have
been salutary.
Objectively considered, it is the cumulative effect of
the entire scenario that assumes gravity for disqualifying her.
[24]
I
recognise that a high court will not, by way of entertaining an
application for review, interfere with uncompleted proceedings
in a
lower court
[12]
unless a grave
injustice might otherwise result. In applying the appropriate test to
the facts and circumstances of the present
matter, I am persuaded
that the first respondent would have provided the reasonable person
in the position of the applicant with
eminently reasonable grounds
for thinking that she might be biased. Even by the time the recusal
application had been made, enough
had occurred to create that
impression. That application was wrongly refused, and to deny the
applicant relief might lead to an
injustice.
[25]
Before concluding this judgment there is
the further aspect of costs that necessitates comment. This was not
claimed in the relief
set out in the applicant’s notice of
motion and was conspicuously not prayed for in his founding affidavit
in the event of
a successful outcome. Considering that both parties
had been culpable, as alluded to earlier in this judgment, it is
appropriate
that no order as to costs be made.
[26]
In the circumstances, the following order
issues:
1.
The first respondent’s decision
refusing and/or dismissing the applicant’s application for her
recusal in the proceedings
pending under Case No. 211/2017 is hereby
reviewed and set aside.
2.
The matter is referred to the second
respondent to decide whether the applicant is to be re-arraigned.
3.
In the event that it is decided that the
applicant be re-arraigned, the trial must commence
de
novo
before another magistrate.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
I
agree
G.
H. BLOEM
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Applicant:
T. Coto
Instructed
by
Sonamzi
Attorneys Inc.
c/o
Yokwana Attorneys
Makhanda
(Ref:
N. Yokwana)
For
the Respondents: T. W. Mgidlana
Instructed
by
The
State Attorney
c/o
Mili Attorneys
Makhanda
(Ref:
D. Mili)
Date
heard:
27 October 2022
Date
delivered:
08 November
2022
[1]
[2020] ZASCA 62
at paragraph
[30]
[2]
Altech
Radio Holdings (Pty) Ltd & Others v Tshwane City
2021 (3) SA 25
(SCA) at paragraph [36]
[3]
Road
Accident Fund v Applegate and Others
(52500/2015) [2021] ZAGPPHC (27 May 2021) at paragraph [46]
[4]
Altech
Radio Holdings supra
at
paragraph [37]
[5]
Roberts
v Additional Magistrate for the District of Johannesburg and Another
[1999] 4 All SA 285
(A) at page 292
e
[6]
Roberts
supra
at
page 292
f
[7]
Roberts
supra
at
page 292
g
[8]
Constitution of the Republic of South Africa, 1996
[9]
Mulaudzi
v Old Mutual Life Assurance
2017 (6) SA 90
(SCA) at paragraph [46].
[10]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at paragraph
[48]
[11]
Roberts
v Additional Magistrate for the District of Johannesburg and Another
[1999] 4 All SA 285
(A) at paragraphs [32] and [34].
[12]
Motata
v Nair NO and Another
2009 (2) SA 575
(T) at paragraph [9], and
Sizani
v Mpofu and Another
(642/2017)
[2017] ZAECGHC 127 (12 December 2017) at paragraphs [5], [6] and [7]