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[2021] ZALMPPHC 39
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Boshomane v NG Pretorius N.O. and Another (Rev 25/2021) [2021] ZALMPPHC 39 (28 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO
DIVISION
,
POLOKWANE)
CASE
NO: REV
25/2021
REGIONAL
COURT CASE NUMBER: SH96/2020
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: YES
REVISED
28/7/2021
In
the matter between:
LESIBANA
OBED BOSHOMANE
APPLICANT
And
N.G.
PRETORIUS
N.O
.
1
ST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
2ND
RESPONDENT
(LIMPOPO)
JUDGMENT
MAKGOBA
JP
[1]
This is an application to review and set aside the decision of the
First
Respondent, a Magistrate in the Mokopane Regional Court
,
for refusing to recuse himself as a
presiding officer in a criminal case involving the Applicant. At the
hearing of the matter the
Applicant was legally represented by
Attorney Oupa Thabethe who is also the Applicant's attorney of record
in the present review
application
.
[2]
The review application is brought in terms of
section 22
(1)(b) of
the
Superior Courts Act 10 of 2013
read with Rule 53 of the Uniform
Rules of Court, on the ground of bias on the part of the presiding
officer
.
[3]
The factual matrix in this matter is common cause or not in d
i
spute.
In fact the facts in this case are derived from the transcribed Court
record
.
In
order to do justice to the parties I shall state such facts and/or
utterances by each party verbatim
.
[4]
The Applicant appeared before the F
i
rst
Respondent in the Mokopane Regional Court under case number SH96/2020
on 2 November 2020 represented by Attorney Oupa Thabethe
.
Before the hearing could continue in the
cr
i
minal
tr
i
al the
First Respondent ordered the stenographer to playback the court
recording machine in relation to another case
,
SH48/20
1
9
,
wherein the First Respondent sought to
put it to the attorney that the attorney had previously misled him
in
tha
t other matter (SH48/2019) where
another client of the attorney had taken a decision of the First
Respondent on review
.
[5]
Arising from a dispute between the attorney and the First Respondent
on whether the attorney had misled the First Respondent in that
matter
,
the
First Respondent refused to hear the attorney
,
to recognize his presence as
representing the Applicant until the attorney had furnished him with
"
written
reasons
"
ostensibly
relating to the attorney
'
s
alleged misconduct in the other matter
.
[6]
What follows is the exchange of words between the First Respondent
and Attorney Thabethe
:
"
COURT:
Mr
.
Thabethe
,
you have heard the recording
.
You have heard
what you said
.
It was wrong. I Just want
a
reasonable
explanation
why you
informed
me
or
supplied
me
with
incorrect
information which
is wrong
.
MR
THABETHE:
And this is not
..
.
COURT
:
No
,
no
,
no
,
I want
a
written reason
.
I want
a
written reason
.
And before, I have to decide
whether I can trust you
as a
court
official
,
because
if I cannot then obviously
,
I
have to take it further
.
MR
THABETHE
:
That
was the information at my disposal
.
COURT
:
Mr Thabethe
,
I want
a
written explanation from you. You may
be seated. Thank you. The accused is appearing for what?
"
[7]
From that point on the First Respondent went on to engage the
Applicant
as if he was unrepresented
,
completely thinking his attorney away
,
up to actually explaining his rights to
legal representation before remarking as follows
:
"
COURT
:
....
As
you might have noticed there is
a
situation that has to be
clarified
and
I
know
that
Mr
Thabethe
instructed
him
but
before
I receive that document
as
I require
,
I
cannot allow him
...
I
have
to
consider
his
reasons
.
Now
for him to clarify the situation I will postpone the matter
until tomorrow
and if I
am
satisfied
,
I
will
allow him to appear again
.
In the meantime
,
you will remain in custody. Is
that clear?
"
On
the next appearance
,
having
received a written explanation from the attorney
,
the First Respondent was still not
appeased. He instructed the at
torney to
withdraw certain paragraphs from the written explanation failing
which he would bar the attorney from appearing in his
court.
When
the attorney refused to withdraw the allegedly offensive paragraphs
,
the First Respondent told the Applicant
that he was not going to al
l
ow
the attorney to appear because of personal differences and
practically suggested that the Applicant get another attorney
.
The applicant indicated that he wished
to consult with his attorney of record to which the First Respondent
once again emphatically
said that he was not going to allow the
allegedly
"
contemptuous"
legal representative to appear for the Applicant.
The
matter was then postponed several times without the
"
personal
difference
"
between
the First Respondent and the attorney being resolved
.
[8]
Subsequently on 4 March 2021 the Applicant brought a recusal
application
against the First Respondent citing the above background
as a reasonable apprehension of bias against him. The application was
moved by his attorney of choice
,
Mr
Thabethe.
Having
summarily dismissed the recusal application
,
the First Respondent went on to state
the following
:
"
COURT
:
Mr Thabethe
,
in any case
,
as from today
.
..
As from today
,
you
will make arrangements with the Regional Court President whenever you
have
a
case in this court
.
And you will not come into this
court again
.
It
is
not
in the interest of the court that we have
a
personal conflict in an open court
.
So
I
am
not
chasing you out
,
I
am
just
saying you cannot appear under these
circumstances in
my court
.
Your office
is
welcome to appear
,
but you in person
,
not.
"
[9]
Having clearly banned the Applicant
'
s
attorney from further representing the Applicant in that matter
,
the First Respondent postponed the
matter to 1 April 2021 for the Applicant
"
to
make up his mind regarding
l
egal
representation
"
.
It
is this undisputed background captured above which has seen the
App
li
cant
bring this review application as he still wants to be represented by
the same attorney
,
Mr
Thabethe
.
[10]
It was contended on behalf of the Applicant that when a presiding
officer e
x
pressly
tells a legal representative on record that he has an ongoing
unresolved conflict with that legal representative and that
"
y
o
u
will
n
ot
c
ome
into
this
Court ag
a
in
.
It
is
not in the
interest of the
Court that w
e
h
a
ve
a
personal
confli
c
t
in
o
p
e
n
co
urt
.
So
I
am
n
o
t
chasing you out
,
I
a
m
just
saying y
o
u
ca
nnot
a
pp
ea
r
under the
s
e
c
ircumst
a
n
ces
i
n my Court
.
Y
o
ur
offi
ce
is
w
e
lcome
t
o
appear
,
but not you in person...
"
then an accused person has every
reason to reasonably apprehend that his right to a fair trial before
such a magistrate is seriously
in jeopardy for as long as he is
represented by that disliked legal representative.
[11]
Counsel for the First Respondent argued that this ground for review
is baseless and frivolous.
He submitted that it is unfortunately so
that human beings do not always like each other
.
It is also a factual truth that some
presiding officers (be they magistrates or judges) and legal
representatives (be they advocates
or attorneys) sometimes dislike
each other intensely but
,
they
still do their duty as judicial officers of court
.
After all
,
a judge and a magistrate take an oath of
office and likewise a legal representative takes an oath that he will
be true and faithful
to the Constitution and the Republic of South
Africa. Counsel submitted further that a judge or magistrate may
dislike a legal
representative
,
but
this is no ground for the recusal of such a judge or magistrate
.
[12]
Before resolving this vexed quest
i
on
or issue before us
,
I
find it appropriate to make some observations regarding the conduct
of the First Respondent. The First Respondent, as a presiding
officer
,
in
case number SH96/2020 had no cause whatsoever to deal with issues
relating to a different case (Case number SH48/2019) which
was
unrelated to a case before him
.
He
deliberately did this with the intention of causing a confrontation
between himself and Attorney
Thabethe
.
This is inappropriate. The First
Respondent has no authority to banish a legal representative from the
Court
.
A
courtroom is not a personal domain of
any
presiding officer. The First Respondent
correctly stated that
"
It
is
not
in the interest of the Court that we have
a
personal conflict in open court
".
It is advisable that if a presiding
officer foresees any potential conflict with a legal representative
he should
call
the
legal representative to his chambers in order to resolve their issues
behind closed doors
.
Regrettably
,
the F
i
rst
Respondent failed to do so
.
[13]
It is regrettable to note that in this matter we observe intolerance
on the part o
f
the
presid
i
ng
officer and insolence on the side of the legal representative
.
Be that as it may
,
this Court has to decide
,
g
i
ven
the conspectus of evidence befo
r
e
us
,
whether
the Applicant has made out a case for the recusal of the First
Respondent.
[14]
The
test applicable to determine whether a judicial off
i
cer
is disqual
i
fied
from hear
i
ng
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
c
ase
the Constitut
i
onal
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
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
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.
"
[15]
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
i
nvo
l
ves
a va
l
ue
judgment of the court applying prevailing mo
r
ality
and common sense
.
[2]
A
cornerstone of our legal system
i
s
the impartial adjudication of disputes which come before our courts
and tribunals
.
What
the law requires is not only that a judicial off
i
cer
must conduct the trial open mindedly
,
impartially
and fairly but that such conduct must be manifest to all those who
are concerned in the tria
l
and
i
ts
outcome
,
espec
i
ally
the accused
.
[3]
[16)
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 b
i
ased
.
2.
The suspicion must be that of a reasonable person in the posit
i
on
of the accused or litigant.
3.
The suspic
i
on
must be based on reasonable grounds
.
4.
The suspicion is one which the reasonable person referred to would
,
not might have
.
[17]
The test
i
n
the SARFU judgment does not relate to counsel
,
but to the litigant
,
that
i
s
the accused in the present case
.
It
is the litigant or accused who must entertain a reasonable
apprehension of bias for the disqualification to be su
stained.
Referring to the present case
,
it
must be the Applicant and not his legal representative (Attorney
Thabethe) who must entertain a reasonable apprehension of bias
that
the First Respondent will not be object
i
ve
in his trial.
[18]
The rule 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 bias. The rationale for the rule is that one cannot
be a judge in one
'
s
ow
n
cause
.
Any doubt must be resolved in favour of
recusal. It is imperative that judicial off
i
cers
be sensitive at all times. They must of their own acco
r
d
consider if there is anything that could influence them in e
x
ecuting
their duties or that could be perceived as bias on their part
.
It is not possible to define or list
factors that may g
i
ve
rise to an apprehension of b
i
as
- 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)
.
[19]
In
Saccawu
and Others v Irvin and Johnson Seafoods Division Fish Processing
[5]
the
Constitutional Court in formulating the test to be applied in an
application
for the recusal of a presiding off
i
cer
on
the
grounds
of apprehension of bias observed that two cons
i
derations
are
i
nto
the test itself
:
1.
The first is that in considering the application for recusal
,
the Court as a starting point presumes
that judicial officers are impartial in adjudicating disputes
.
On the one hand
,
it is the applicant for recusal who
bears the onus rebutting the presumption of judicial impartiality
.
On the other hand
,
the presumption is not easily dislodged.
It requires cogent or convincing evidence to be rebutted.
2.
The second in-built aspect of the test is that absolute neutral
i
ty
is something of a chimera in the judicial context
.
This is so because judges are human
.
[20]
As a ground for the recusal of the First
Respondent
,
the Applicant stated the following in
paragraph 31 of his founding affidavit:
"
31
.
From the afore-going factual
background
,
it
is
c
lear
that the 1
st
Respondent
is
highly conflicted towards Mr
Thab
e
the
.
The 1
st
Respondent
is
on record having stated amongst
others that he does not like Mr Thabethe and that he laid
a
complaint against Mr Th
a
b
e
th
e
wherein Mr Thabethe is apparently
an ac
c
used
person
."
It
is clea
r
from
the above statement by the Applicant that this case has more to do
with the
c
onfl
i
ct
or hatred between the First Respondent and Attorney Thabethe than
with the Applicant having a well
-
g
r
ounded
apprehension of bias which
calls for the
recusal of the First Respondent. The test in the SARFU judgment above
does not relate to counsel
,
but
to the litigant
,
that
is the accused in the present case
.
[21]
The fact that the First Respondent might
dislike Mr Thabethe is
,
in my view
,
of no consequence
.
The test as set out in the case law
referred to hereinabove has to be satisfied before one can even
remotely come to a conclusion
that justice will not be done should
the First Respondent continue to preside in the trial in which Mr
Thabethe appears for the
Applicant.
[22]
The Magistrate
,
Mr
Pretorius and the legal representative
,
Mr Thabethe need a reprimand
.
In an effort to remedy their strained
relationship I can only call upon them to conduct themselves as
adults and matured officers
of the Court
.
Already the attitude and approach of
both of them has harmed the Applicant's right to a speedy trial as
the matter had not progressed
owing to their toxic relationship.
A
copy of this judgment will be sent to President of the Regional
Court
,
Limpopo
,
the Magistrate Commission and the Legal
Practice Council.
[23]
The Applicant has not made out a case for the
recusal of the First Respondent from case number SH96/2020 in the
Regional Court
,
Mokopane
.
In
the result I make the following order:
1.
The application is dismissed
.
2.
There shall be no order as to costs.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH
COURT,
LIMPOPO DIVISION
,
POLOK
WANE
I
agree
GP
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
st
Respondent
:
Adv. CFJ Brand SC
Instructed
by
:
Thomas Grobler Attorneys
[1]
1994
(
4
)
SA
147
(CC);
1999 (7)
BCL
R
725.
[2]
S
v
Bosson
2004
(1)
SACR
285
(CC)
(2005
(1)
SA 17
1
[2004] ZACC 13
; ;
2004
(6) BCLR 620)
pa
r
a
53.
[3]
S
v
Roberts
1999
(2)
SACR
243
(SCA)
(1999 (4) SA 915)
para 25.
[4]
1999
(2) SACR 243
(SCA);
1999 (4) SA 9
1
5
p
ara
25.
[5]
[2000] ZACC 10
;
2000 (3) SA 705
(CC)