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[2021] ZALMPPHC 38
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Sekgobela and Another v NG Pretorius N.O and Another (15/2021) [2021] ZALMPPHC 38 (28 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF
SOUTH
AFRICA
(LIMPOPO
DIVISION
,
POLOKWANE)
CASE
NO
:
REV
15/2021
REGIONAL
COURT CASE NUMBER: 05/2021
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: YES
REVISED
28/07/2021
In
the matter between
:
JOY
MOKGALE SEKGOBELA
1sT
APPLICANT
METSE
STANLEY MOKOELE
2ND
APPLICANT
and
N.G
.
PRETORIUS
N.O
1sT
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
2ND
RESPONDENT
(LIMPOPO)
JUDGMENT
MAKGOBA
JP
[1]
This is a review application brought by the Applicants wherein this
Court
is asked to set aside the decision by the First Respondent not
to recuse himself from presiding in a criminal trial in which the
Applicants appear as accused before the First Respondent in the
Regional Court sitting at Mokopane under case number SH05/2021
.
[2]
The application is opposed by the First Respondent. The Second
Respondent
filed a notice to abide the decision of the Court
.
[3]
The First Respondent in this matter is the Regional Court Magistrate
,
Mokopane
,
who is seized with the trial of the two
Applicants
.
The
Applicants
,
as
accused before the First Respondent are both legally represented by
Attorney Oupa Thabethe who is also the attorney for the Applicants
in
the present review application
.
[4]
The crux of the complaint and/or ground
advanced for the recusal of the First Respondent is that the
Applicants have a well-grounded
apprehension that the First
Respondent may have been aware of the facts of the case before plea
proceedings
.
This
,
according to the Applicants
,
was premised not only on the fact of the
intimate relationship between the prosecutor and the First
Respondent
,
but
also on a remark made by the First Respondent when he questioned why
a co-accused was still in
the
dock
.
[5]
It is common cause that the First Respondent
,
a Regional Court Magistrate at Mokopane
,
is married to a Public Prosecutor at
Mahwelereng Magistrate Court
.
The
said public prosecutor apparently processed the docket containing the
allegations against the Applicants. The question is whether
that
marital relationship grounds in the Applicants a reasonable
apprehension of bias
.
[6]
It should be noted that the First Respondent's wife is not the
prosecutor
who
is
to
conduct the trial proceedings against the Applicants
.
Her role as a control prosecutor in
Mahwelereng was to process the case docket to another prosecutor in
the Regional Court
,
Mokopane.
Furthermore
it is to be noted that the decision to prosecute the Applicants on a
charge of murder and defeating the course of justice
was made by the
Director of Public Prosecutions
,
Limpopo
in Polokwane. The prosecutor at Mahwelereng
(First
Respondent's wife) upon receipt of
instructions processed the case docket to the Regional Court
Prosecutor in Mokopane for trial
before the First Respondent.
[7]
The Applicants aver that the First Respondent's remark in court
"
questioning
why a co-accused was before court when he ought not to have been
there
"
ousted
the First Respondent as having been informed of their case prior to
they appearing in court
.
This
issue
,
as a
basis for bias
,
needs
to be mentioned only to be rejected. It is so nebulous that we need
not detain ourselves on it. I shall therefore proceed
to deal with
the issue of whether the marital relationship between the First
Respondent and his wife gives rise to a reasonable
apprehension of
bias
.
[8]
The test applicable to determine whether a judicial officer is
disqualified
from hearing a case by reason of a reasonable
apprehension of bias was enunciated in
President
of
the Republic of South Africa and Others v South African
Rugby
Football Union and Others
.
[1]
In
that case the Constitutional Court said:
"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
the submissi
o
ns
of counsel
.
The
reason
a
bleness
of the apprehension
must be assessed in the light of the
oath of
office taken
by the Judg
e
s
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 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
reasons
,
was
not
or will not be impartial
."
[9]
Where the claimed disqualification is based on a reasonable
apprehension
,
the
court has to make a normative evaluation of the facts to determine
whether a reasonable person faced with the same facts would
entertain
the apprehension
.
The
enquiry involves a value judgment of the court applying prevailing
morality and common sense
.
[2]
A
cornerstone of our legal system is the impartial adjudication of
disputes which come before our courts and tribunals
.
What
the law requires is not only that a judicial officer must conduct the
t
r
ial
open mindedly
,
impartially
and fairly but that such conduct must be manifest to all those who
are concerned in the trial and its outcome
,
especially
the accused.
[3]
[10]
In
S
v
Roberts
[4]
,
the
requirements of the test for the appearance of judicial bias are as
follows as applied in judicial proceedings:
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
.
[11]
The test in SARFU judgment does not relate to counsel
,
but to the litigant
,
that is the accused in the p
r
esent
case
.
It is
the litigant or accused who must entertain a reasonable apprehension
of bias for the disqual
i
ficat
i
on
to be sustained
.
Referring
to the present case
,
it
must be the two Applicants and
n
ot
their legal representative
(
Attorney
Thabethe) who must entertain a reasonable apprehension of bias that
the First Respondent will not be objective in their
tr
i
al.
[12]
The
r
ule is
clear: generally speaking
,
a
judicial officer must not sit in a case where he or she is aware of
the existence of a factor which might reasonably give rise
to an
apprehension of b
i
as
.
The rationale for the rule is that one
cannot be a judge in one
'
s
own cause
.
Any
doubt must be resolved in favour of recusal. It
i
s
imperative that judicial officers be sensitive at all times
.
They must of their
own
accord consider if there is anything that could influence them in
executing their duties or that could be perceived as bias
on their
part. It is not possible to define or list factors that may give rise
to an apprehension of bias - the question of what
is proper will
depend on the circumstances of each case
.
See
S v Dube and Others
2009
(2) SACR 99
(SCA)
.
[13)
Counsel for the Applicants relied on
Dube
,
supra
,
and submitted that the case is almost on
all fours with the present case because it relates to a marital
relationship between a
prosecutor and a presiding officer involved in
one criminal matter
.
I
disagree
.
In
Dube
,
the prosecutor who was married
to the presiding officer was actually the prosecutor/state advocate
who conducted the hearing in
which her husband was the presiding
officer
.
In
the present case the First Respondent
'
s
wife did not conduct the criminal proceedings in Court but merely
passed over the case docket from the Director of Public Prosecutions
to the other state prosecutor who actually appeared in Court before
the First Respondent. It cannot be said, without more
,
that she was conversant with the
contents of the docket which she passed over to the First Respondent.
The present case is therefore
distinguishable from that of
Dube
and Others
.
[14]
In his answering affidavit the First Respondent stated
:
"
I
certainly have no desire nor the time to spend my free time
discussing
cases
with
my wife and she equally knows and
has
no desire to
discuss
dockets with me. She deals with
thousands of dockets and I deal with hundreds of
cases
.
If I were to
discuss
each other
'
s
cases
,
we would have no time for anything
else
.
I
am
a
Regional Magistrate
,
she
is
a
prosecutor.
That
is as
far
as
it
goes
. "
In
short
,
the
First Respondent denies knowledge of the contents of the docket
relating to the Applicant
'
s
case
.
The
First Respondent's wife filed a supporting aff
i
davit
to this effect. On the other hand the Applicants did not file any
replying affidavit to counter what is said by the First
Respondent.
[15]
The version of the First Respondent has to be accepted and that of
the Applicants rejected
in so far as it may clash with the vers
i
on
of the First Respondent.
[5]
[16]
Having regard to the Opposing Affidavits filed by both the First
Respondent as well as
his wife
,
I
make a finding that the First Respondent did not and does not have
any knowledge of the case of the Applicants other than what
appeared
before him on the charge sheet. That
being the case
,
the
contentions of the Applicant cannot hold water
.
[17]
In the result the application is dismissed. There shall be no order
as to costs
.
EM
MAKGOBA
JUDGE
PRESIDENT
OF
THE
HIGH
COURT,
LIMPOPO
DIVISION
,
I
agree
LGP
LEDWABA
ACTING
JUDGE OF THE HIGH
COURT
,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
23
July 2021
Judgment
delivered on
:
28
July 2021
For
the Applicants
:
Adv
.
NC
Mathabatha
Instructed
by
:
Oupa Thabethe Inc
c/o
Ntene
Attorneys
For
the 1
s
t
Respondent
:
Adv. CFJ Brand SC
Instructed
by
:
Thomas Grobler Attorneys
[1]
1994
(4) SA
1
47
(CC);
1
999
(7) BC
LR
72
5
.
[2]
S
v
Boss
o
n
2
0
04
(
1
)
SAC
R
285
(CC)
(2005
(1
)
SA
1
71;
200
4
(
6)
BC
LR
6
20
)
p
a
r
a
53
.
[3]
S
v
R
obert
s
1999
(2)
SACR
2
4
3
(SCA)
(1
999
(4
)
SA
915)
p
ara
25.
[4]
1
999
(2) SACR 243
(SCA
)
;
1999 (4) SA 915
p
ara
25.
[5]
See
P/ascon-Evons
Paints
Ltd v Van Riebeek P
a
ints
{Pty)
Ltd
1
984
(3)
SA
623
(A).