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[2009] ZASCA 28
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S v Dube and Others (523/07) [2009] ZASCA 28; 2009 (2) SACR 99 (SCA) ; [2009] 3 All SA 223 (SCA) (30 March 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No 523/07
In the matter between:
BONGANI DUBE
First appellant
LODRICK ALLEN MKHIZE
Second appellant
NTOBEKO NDHLOVU
Third appellant
and
THE STATE
Respondent
Neutral citation:
Dube
v The State
(523/07)
[2009] ZASCA 28
(30 March 2009)
Coram:
Mthiyane,
Lewis, Cachalia, Snyders
et
Mhlantla JJA
Heard:
13
March 2009
Delivered:
30
March 2009
Summary: Special entry â
recusal on grounds of appearance of bias.
Test for bias â judicial
officer's failure to recuse himself tainted the appeal process â
order set aside â appeal remitted
for rehearing.
ORDER
____________________________________________________________
On appeal from:
Bophuthatswana High
Court (Mogoeng JP and Gura J sitting as a court of appeal).
(a) The appeal succeeds to the
extent that the special entry is upheld;
(b) The order of the court a quo
is set aside and replaced with the following:
'The appeal is remitted to the
High Court for re-hearing before a differently constituted Full
Bench.'
JUDGMENT
___________________________________________________________
MHLANTLA JA (Mthiyane, Lewis,
Cachalia and Snyders JJA
concurring)
[1] On 26 March 2002 at
approximately 09h15 the First National Bank in Koster was robbed of
R119 000 by four armed men. The appellants
were subsequently arrested
as suspects and charged in the Regional Court, Rustenburg with one
count each of robbery with aggravating
circumstances. They were
convicted and sentenced to 16 years' imprisonment each. Their appeal
to the Bophuthatswana High Court,
before Mogoeng JP and Gura J
against both conviction and sentence was based on several grounds,
including alleged irregularities
in the proceedings, and whether the
identity of the appellants had been proved. The appeal was dismissed
on all bases. Mr Dube,
the first appellant has since died. The appeal
to this court is with the leave of the court a quo.
[2] This appeal is based on a
special entry relating to an alleged irregularity in the court a quo,
in terms of
s 317
of the
Criminal Procedure Act 51 of 1977
, as well
as on the merits. Only the issue relating to the special entry was
argued before us.
[3] Accordingly this judgment
deals only with that issue â whether the Judge President should
have recused himself
mero
motu
because his wife,
a state advocate, represented the State in the appeal before the
court; and if so, whether his failure to recuse
himself constituted
an irregularity which vitiated the appeal proceedings. In answering
these questions it is necessary to sketch
briefly the background
events leading to the application for a special entry.
[4] According to counsel for the
appellants, he and the correspondent attorney learnt on the day of
the appeal hearing that the
Judge President would be one of the
judges presiding over the appeal. At that stage, counsel was aware
that Mrs Mogoeng, the Judge
President's wife, was arguing the appeal
on behalf of the State. The appellants were not in court during the
hearing. Their counsel
did not foresee any problems and never
considered the possibility of asking the Judge President to recuse
himself on the basis
that his wife was representing the State. He did
not, at the time of arguing, believe that it was necessary to request
a recusal
because he had been involved previously in a full bench
appeal presided over by Judge President Mogoeng and at which Mrs
Mogoeng
represented the State â
S
v Baletseng
2005 (2)
SACR 28
(B). That appeal was decided in favour of the appellants.
[5] After the appeal was
dismissed in the present matter counsel met the appellants in prison
to discuss the judgment and outcome
with them. It was at that stage
that the appellants enquired about the similarity of the surnames
between that of the Judge President
and the state advocate. Counsel
thereupon informed them that the two were in fact husband and wife.
The appellants were not comfortable
with this revelation. This
eventually led to the application for a special entry on the basis
that the appellants had a perception
of bias on the part of the Judge
President. The application for a special entry was granted by the
full bench.
[6] 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 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.'
[7] 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 judgement 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 trial
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
[8] It is settled law that not
only actual bias but also the reasonable perception of bias
disqualifies a judicial officer from
presiding (or continuing to
preside) over judicial proceedings. Once this is established the
disqualification is so complete that
continuing to preside after
recusal should have occurred renders the further proceedings a
nullity.
4
This dual aspect is captured in the oft repeated words that justice
must not only be done, but must manifestly be seen to be done.
5
[9] The Bangalore Principles of
Judicial Conduct
6
are a comprehensive statement of ethical principles. The second value
identified by these principles is that of 'impartiality'.
The
principle is articulated as follows: 'Impartiality is essential to
the proper discharge of the judicial office. It applies
not only to
the decision itself but also to the process by which the decision is
made'.
[10] '
Impartiality
is the fundamental quality required of a judge and the core attribute
of the judiciary. It must exist both as a matter
of fact and as a
matter of reasonable perception. If partiality is reasonably
perceived, that perception is likely to leave a sense
of unease,
grievance and of injustice having been done, thereby destroying
confidence in the judicial system. The perception of
impartiality is
measured by the standard of a reasonable observer. The perception
that a judge is not impartial may arise in a
number of ways, for
instance, by a perceived conflict of interest; by the judge's
behaviour on the bench, or by the judge's out-of-court
associations
and activities. A judge must therefore avoid all activity that
suggests that the judge's decision may be influenced
by external
factors such as the judge's personal relationship with a party or
interest in the outcome.'
7
[11] It is helpful to refer to
other jurisdictions to ascertain how the rule is applied. In some
states of the United States of
America, the rule is mandatory when a
judge's spouse or relative to the third degree is a party. The Code
of Judicial Conduct in
Arkansas for example provides that a judge
should disqualify himself or herself in a proceeding in which his or
her impartiality
might reasonably be questioned, including but not
limited to instances where: he or she has a personal bias or
prejudice concerning
a party or personal knowledge of disputed
evidentiary facts concerning the proceeding, where he or she or his
or her spouse, or
a person within the third degree or relationship to
either of them, or the spouse of such person is acting as a lawyer in
the proceeding.
A judge disqualified in terms of the Code, may,
instead of withdrawing, disclose on the record the basis of his
disqualification.
If based on such disclosure and if the parties and
lawyers independently of the judge's participation all agree in
writing that
the judge's relationship is immaterial or that his
financial interest is not substantial, the judge may participate in
the proceeding.
The agreement has to be incorporated in the record of
the proceedings.
[12] In this country a judicial
officer was held to be disqualified in a case where his wife was
called as a witness. In
S
v Sharp
8
the complainant was the magistrate's wife. He presided in a trial
where his wife testified. The court on review held that the
magistrate had a direct personal interest in the outcome of
the proceedings and that it was
difficult to conceive of a more
obvious example necessitating recusal.
[13] 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 own cause. Any doubt must be resolved in
favour of recusal. It is 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 apprehension of bias
â the question of what is proper will depend on the circumstances
of each case.
[14] In situations where the
judge has a relationship with a party or a legal representative
appearing before him or her, it is
always appropriate for the judge
to consider the degree of intimacy between him or herself and the
person concerned. The more intimate
the relationship, the greater the
need for recusal. In the case such as the present, where there is a
close relationship between
the presiding officer and one of the legal
representatives, it appears to be undesirable if not improper for
such judicial officer
to sit in the matter. No general rule as to the
kinds of relationship that should require recusal need be laid down,
however, given
the clarity of the test in
SARFU
.
[15] There may, of course, be
instances where it is difficult to avoid closely connected people
working in a matter. The preferred
route would then be to bring in
other judicial officers or legal representatives from different
jurisdictions. If it is not feasible
then the relationship must be
brought to the attention of the parties and their consent canvassed
before the commencement of the
hearing. If such consent is given it
must be entered into the record.
[16] I turn now to consider the
circumstances relating to the special entry in this appeal. Counsel
for the respondent submitted
that the perception of bias could not be
established because counsel for the appellants had been aware of the
relationship between
the Judge President and the state advocate. This
argument in my view is without merit. The test set out in
SARFU
does not relate to counsel but to the litigant. It is the litigant
who must entertain a reasonable apprehension of bias for the
disqualification to be sustained. Although counsel was aware of the
relationship concerned before the hearing, it is common cause
that he
had not discussed the issue with the appellants. The appellants
learnt for the first time about the relationship when the
judgment on
appeal was shown to them. Consequently the fact that their counsel,
on the basis of what had occurred in
Baletseng
,
did not object to the sitting of the Judge President, is irrelevant
to the present enquiry. In that case the relationship of the
Judge
President and his wife was not raised. It is not clear what would
have happened if it had been.
[17] In making the special entry,
the learned Judge President was alive to this issue: He said:
'Be that as it may,
we are inclined to allow the special entry irrespective of whether it
is the applicants or Mr Shapiro or both
who have the perception that
the Presiding Judge or both judges are biased against the applicants.
We do so because we believe
that a perception by a layperson that a
husband and wife may, in the secrecy of their bedroom, inadvertently
or deliberately find
themselves talking about the case in which they
are involved cannot be said to be frivolous or ridiculous. An
application for the
recusal of a presiding officer in the position of
the Presiding Judge in this matter cannot be said to be absurd or an
abuse of
process and an average right-thinking person would, in all
likelihood, sympathise with a person in the position of the
applicants
in this matter.'
[18] Counsel for respondent
contended that the appellants' submissions would be persuasive if the
Judge President had been sitting
alone. I do not agree with this
submission. In
R v Bow
Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (no 2)
9
a majority of the court, including Lord Hoffman, had issued an order
against Senator Pinochet. He subsequently brought a petition
to set
aside the order on the basis that Amnesty International (AI) was a
party to the appeal; that AI was joined in order to argue
a
particular result and that Lord Hoffman, a member of the Appellate
Committee that had heard the appeal, was a director of a charity
closely allied to AI. Lord Nolan held that in any case where the
impartiality of a judge was in question, the appearance of the
matter
was just as important as the reality. The House of Lords held that
Lord Hoffman's links were such as to give the appearance
that he
might have been biased against the applicant; that he had an interest
in the outcome of the proceedings and was accordingly
disqualified
from sitting as a judge in those proceedings. The previous order of
the House of Lords was set aside. Similarly in
this case, the
proceedings are tainted regardless of the fact that the Judge
President heard the matter with another judge and
irrespective of the
fact that the Judge President did not conduct himself at the hearing
in a manner that gave rise to a reasonable
suspicion of bias.
[19] It seems to me that a
reasonable litigant would have been justified in entertaining a
reasonable perception of bias on the
part of the Judge President
given that he is married to counsel for the State. This does not of
course mean that bias on the part
of the Judge President was
established. Nor does this judgment seek to lay down a rule that in
every case in which a judge is related
to a legal representative he
or she will be disqualified from presiding or sitting. It is as I
have said, a question that will
have to be evaluated from case to
case with due regard to the principles laid down in
SARFU
and other pertinent
cases.
[20] For the above reasons the
failure of the Judge President to recuse himself when his wife
presented argument for the State
in the court below constituted an
irregularity which vitiated the appeal proceedings. In the result the
appeal succeeds to the
extent that the special entry must be upheld.
The order of the court a quo must be set aside and the appeal
referred back for re-hearing
before a differently constituted bench.
[21] In the result the following
order is made:
(a) The appeal succeeds to the
extent that the special entry is upheld.
(b) The order of the court a quo
is set aside and replaced with the following:
'The appeal is remitted to the
High Court for re-hearing before a differently constituted Full
Bench.'
_______________
N
Z MHLANTLA
JUDGE
OF APPEAL
Appearances:
For Appellant: P I Shapiro
Instructed by:
Ms Ester Resnik, Observatory,
Johannesburg
Giorgi & Gerber Attorneys,
Bloemfontein
For Respondent: G S Maema
Deputy Director of Public
Prosecutions, Mafikeng
1
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 48. This test was considered with
approval in
SACCAWU v
Irvin & Johnson Ltd (Seafoods Division Fish Processing
)
[2000] ZACC 10
;
2000 (3) SA 705
(CC), and in
Locabail
(UK) Ltd v Bayfield Properties Ltd and another
[2000] 1 All ER 65
(CA) at 76F to 77A.
2
S v Basson
[2004] ZACC 13
;
2004 (6)
BCLR 620
(CC) para 53.
3
S
v Roberts
1999
(4) SA 915
(SCA) para 25.
4
Take and Save Trading
CC and others v Standard Bank of SA Ltd
2004
(4) SA 1
(SCA) at para 5.
5
R v
Sussex Justices, ex parte McCarthy
[1924] 1 KB 256
at 259, per Lord Hewart CJ.
6
The
Bangalore Principles were adopted by the Judicial Group on
Strengthening Judicial Integrity, at a meeting of Chief Justices
held in The Hague, Netherlands on 25-27 November 2002. The
principles are intended to establish standards for ethical conduct
of judges and are designed to afford the judiciary a framework for
regulating judicial conduct.
7
Section 52 of the Commentary on the Bangalore Principles.
8
2002
(1) SACR 360
(Ck) para 21.
9
[1999] UKHL 1
;
[1999] 1 All ER 577
;
[1999] 2 WLR 272.