Botha v Regional Magistrate Cox N.O. and Another (736/07) [2009] ZASCA 42; [2009] 3 All SA 373 (SCA) (31 March 2009)

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[2009] ZASCA 42
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Botha v Regional Magistrate Cox N.O. and Another (736/07) [2009] ZASCA 42; [2009] 3 All SA 373 (SCA) (31 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 736/2007
No
precedential significance
MARTHINUS
JOHANNES
BOTHA
......................................................
Appellant
and
REGIONAL
MAGISTRATE COX
N.O.
......................................................
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
......................................................
Second
Respondent
Neutral
citation:
Botha
v NDPP
(736/2007)
[2009] ZASCA 42
(31 March 2009)
Coram:
STREICHER,
MTHIYANE, CACHALIA, SNYDERS JJA and HURT AJA
Heard:
6
MARCH 2009
Delivered:
31
MARCH 2009
Summary: Application
for recusal - alleged bias on part of magistrate ─ test for recusal
not met ─ application to lead further
evidence dismissed ─
evidence wilfully withheld.
___________________________________________________________
ORDER
___________________________________________________________
On appeal
from:
Transvaal
Provincial Division (Hartzenberg J & Nthai AJ sitting as court of
first instance)
The appeal is
dismissed with costs.
___________________________________________________________
JUDGMENT
___________________________________________________________
STREICHER JA
(MTHIYANE, CACHALIA, SNYDERS JJA and HURT AJA concurring):
[1] This is an
appeal against the dismissal by the High Court, Pretoria (per
Hartzenberg J with whom Nthai AJ concurred) of an application
to
review the refusal by a magistrate, the first respondent, to recuse
himself during a criminal case. The appeal is with the leave
of the
court below.
[2] The
appellant is a schoolteacher. During 1985 he taught at a school in
Vanderbijlpark and in 1991 he was the deputy headmaster
of a school
in Potchefstroom. In the criminal case referred to he is charged with
the rape of a schoolgirl during 1985 and the
indecent assault, during
1991, of a schoolgirl who was in matric at the time.
[3] One of the
witnesses called by the state was the husband of the complainant in
respect of the indecent assault charge, Mr Smit,
who was a teacher at
the Potchefstroom school where the appellant was the deputy
headmaster and the complainant a pupil. During
his cross-examination
it was put to him that rumours of an affair between him and the
complainant came to the knowledge of the
appellant and that the
appellant confronted him and the complainant with such rumours. Smit
denied these allegations as also an
allegation that he asked the
headmaster for permission to accompany the complainant to the
school’s matric dance. The purpose
of the questions was presumably
to show that Smit had an axe to grind with the appellant. Shortly
thereafter the first respondent
asked Smit what the name of the
headmaster was, to which he replied that it was Mr Awie van Rensburg.
Van Rensburg was subsequently
called as a witness. He denied that he
was aware of any of the alleged rumours.
[4] After Van
Rensburg had started giving evidence the appellant’s attorney
noticed an entry in the case docket of the state which
read:
‘
Mnr
Awie van Rensburg is woonagtig te Hermanus en LDS het opdrag gegee
that OB self met getuies konsulteer.’
The appellant’s
attorney asked the investigating officer, Captain Potgieter, what
‘LDS’ stood for, to which she replied ‘die
landdros’.
[5] During an
adjournment of the criminal trial and in front of the first
respondent’s office, the first respondent had a discussion
with a
colleague, Ms Schutte and an attorney, Dr De Kock. De Kock is a
member of the governing body of the Hoër Volkskool Heidelberg
and
had previously been involved in a disciplinary enquiry against the
appellant who is the headmaster of the school and who had
been
accused of sexual misdemeanours. It is common cause that De Kock,
whose children attend the school, regard the appellant as
‘`n
remmende invloed’ at the school.
[6] The entry in
the docket and the admission by the first respondent during the
criminal trial of the evidence of Dr Irma Labuschagne
formed the
basis of an application by the appellant, at the end of the state
case, for the recusal of the first respondent. The
admission of the
evidence of Dr Labuschagne is, however, no longer relied upon as a
ground for the recusal of the first respondent
consequently nothing
further need be said in respect thereof.
[7] Both the
appellant and the state tendered evidence in respect of the
application for recusal. But, before the evidence was tendered,
the
first respondent stated in open court that he denied that he ever
communicated with the investigating officer. He stated that
he did
not know how it came about that the entry was made in the docket. The
appellant thereafter tendered evidence in support
of his application
and it was only during the course of the hearing of such evidence
that the discussion between the first respondent
and De Kock came to
be relied upon as an additional ground for the recusal of the first
respondent. Mr Minnaar gave evidence in
respect of the discussion.
According to him the first respondent joined a discussion between
Schutte and De Kock. The discussion
took place openly in front of the
first appellant’s office and, except for a short while, when
Schutte visited the bathroom,
she was present during the whole of the
discussion. According to Schutte there were people in close
proximity. She went to the
bathroom to wash her hands and could not
have been away for more than a minute. The discussion was about a
prosecutor and when
she returned she did not get the impression that
something else had been discussed in her absence.
[8] The state
called the prosecutor and the investigating officer to testify about
the entry in the docket. The investigating officer
admitted that she
told the appellant’s attorney that ‘LDS’ stood for ‘landdros’
but stated that she used it as an abbreviation
for the state, the
prosecutor or the court. She stated that she never spoke to the first
respondent and that she had not received
an instruction from a
magistrate. The request that she should personally obtain a statement
from Van Rensburg came from the prosecutor.
The prosecutor testified
that she could possibly have given the instruction to the
investigating officer. It was never suggested
to her that she
received the instruction from the first respondent.
[9] The first
respondent dismissed the application for his recusal whereupon the
appellant applied to the court below for his decision
to be reviewed.
In his founding affidavit the appellant alleged that the admission of
Dr Labuscagne’s evidence and the entry
in the docket indicated
unequivocally that the first respondent was biased against him. He
alleged furthermore that the evidence
of Captain Potgieter during the
hearing by the first respondent of the recusal application and the
discussion between De Kock and
the first respondent created the
impression that the first respondent was biased against him.
[10] The first
respondent, in his answering affidavit, denied that he was biased
against the appellant. In respect of the entry
in the docket he
referred to the evidence led in respect of the recusal application
and stated that the investigating officer never
received the
instruction from a magistrate. In respect of the conversation with De
Kock he stated that the conversation was not
about the appellant’s
criminal case and annexed a supporting affidavit by De Kock
confirming that that was the case.
[11] The court
below held that it was clear on the evidence that the first
respondent had not given an instruction to the investigating
officer
to consult with Van Rensburg and also that the first respondent had
not discussed the appellant’s case with De Kock.
He held that any
suspicion of bias on the part of the first respondent was not based
on reasonable grounds.
[12] On appeal
before us the appellant applied for leave to introduce new evidence.
The evidence he wished to introduce was that
of his attorney. It was
to the effect that another attorney, Mr Okes, informed him ‘off the
record’, during the time that the
application for recusal was being
heard, that the first respondent had told him that he had given the
instruction that the investigating
officer should personally obtain a
statement from a state witness. Okes told him that the first
respondent sought his advice in
this regard. Because the appellant’s
attorney thought that there was sufficient evidence for a recusal he
did not disclose his
conversation with Okes to the appellant until
after the dismissal of the recusal application. The first respondent
filed an answering
affidavit and also an affidavit by Okes in which
these allegations are denied.
[13] We
dismissed the application to lead further evidence. In terms of s 22
of the Supreme Court Act 59 of 1959 this court has
the power on the
hearing of an appeal to receive further evidence. However, in the
interests of finality the power that this court
has will only be
exercised if it is satisfied that the interests of justice would be
best served by receiving the evidence. It
is generally accepted that
the following test should be applied:
‘
(a) There
should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to
lead was not led at the trial.
(b) There
should be a
prima
facie
likelihood of the truth of the evidence.
(c) The
evidence should be materially relevant to the outcome of the trial.’
(See
S
v De Jager
1965 (2) SA 612
(A) at 613C-E)
[14] The
appellant failed to satisfy us of requirements (a) and (b). The
evidence of the appellant’s attorney is hearsay evidence
that will
not be confirmed by Okes and is therefore inadmissible. In any event,
if it is true that Okes told the appellant’s
attorney what he is
alleged to have told him, he is a thoroughly unreliable witness as he
is now denying under oath that he did
so. Yet another reason why it
is unlikely that the evidence will be accepted as true is the
improbability that the first respondent,
while an application for his
recusal was pending, would have told Okes, an attorney, with whom he
had no special relationship,
that he had given the instruction. More
so in the light of the fact that he had denied, in open court, that
he had given the instruction.
The appellant’s explanation for not
having tendered ‘the evidence’ in the review application is also
unacceptable. His attorney
was aware of the evidence and deliberately
decided not to make use thereof. A party cannot be allowed to
wilfully withhold evidence,
wait to see whether the outcome is
favourable and then, when it is not, have the case reopened.
[15] In my view
there is no basis upon which it can be held that the instruction to
obtain a statement from Van Rensburg emanated
from the first
respondent. Although the investigating officer’s note says that the
instruction came from a magistrate it did,
according to her, not come
from a magistrate. The appellant criticised her evidence but even a
rejection of her evidence does not
assist the appellant. The position
remains that there is no evidence that the instruction came from the
first respondent while
there is the denial by the first respondent
that he gave the instruction. The appellant submitted that in the
light of the fact
that the first respondent elicited the name of Van
Rensburg he probably gave the instruction. There is no merit in this
contention.
It is common cause that once the identity of the
headmaster concerned had been established the prosecutor instructed
the investigation
officer to obtain a statement from him. A finding
that it was the first respondent and not the prosecutor who gave the
instruction
that the investigating officer should personally obtain
the statement, is therefore wholly unjustified. There is no reason to
disbelieve
the first respondent’s evidence that he never gave the
instruction.
[16] In respect
of the conversation between the first respondent and De Kock there is
likewise no basis upon which it can be held
that the first respondent
discussed the appellant’s case with De Kock. On the evidence
presented he did not do so.
[17] It follows
that there is no basis upon which it can be held that the first
respondent was actually biased against the appellant.
The question
remains whether objectively there existed a reasonable apprehension
that the first respondent may be biased. The test
for recusal on that
basis was formulated as follows in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
1999 (4) SA (CC) 147 at para 48:
‘
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 the evidence
and the submissions
of counsel.’
The onus rests
on the appellant. On the evidence presented the correct facts are
that the first respondent did not give the relevant
instruction to
the investigating officer and that he had a conversation with De
Kock, in public, about a prosecutor and not about
the appellant’s
criminal case. On those facts there can be no question of a
reasonable, objective person apprehending that the
first respondent
would not bring an impartial mind to bear on the adjudication of the
case.
[18] In the
result the appeal is dismissed with costs.
____________________________
PE STREICHER
JUDGE OF
APPEAL
Appearances:
For
Appellant: HP West
Instructed by:
Locketts
Attorneys, Nigel
Naudes,
Bloemfontein
For 1
st
Respondent: S M Lebala
For 2
nd
Respondent: L Pienaar
Instructed by:
State Attorney,
Pretoria
State Attorney,
Bloemfontein