S v Khamadi and Others (R109/2019) [2019] ZAFSHC 75 (13 June 2019)

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[2019] ZAFSHC 75
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S v Khamadi and Others (R109/2019) [2019] ZAFSHC 75 (13 June 2019)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number:
R109/2019
In
the matter between:
THE
STATE
and
TSIETSI
DANIEL KHAMADI AND NINE OTHERS
CORAM:
LOUBSER,
J et OPPERMAN, J
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
13
JUNE 2019
[1] This
matter came before me in the form of a Special Review in terms of
Section 304(4)
of the
Criminal Procedure Act 51 of 1977
. The ten
accused appeared in the Regional Court of Kroonstad on charges of the
theft of copper cable to the value of some one million
Rand from
Transnet. In addition, seven of them were also charged with the
offence of entering or remaining in South Africa without
valid
passports or visas.
[2] In
his letter requesting a review of the proceedings, the presiding
Magistrate informed as follows:
“
The
accused have pleaded not guilty on various counts. The trial is at
the stage where the first witness of the State is under
cross-examination.
This request comes after an objection by the
defence that the accused persons cannot appear in court while being
shackled on their
ankles
”.
He
therefore requested the High Court to set the proceedings aside and
to order that the matter be heard
de
novo
before another judicial
officer, or to make any other order it deems expedient. The record
of the proceedings submitted by the Magistrate,
only pertains to the
proceedings that followed the objection. It appears from that record
that the Magistrate had recused himself
mero
motu
from the trial after
hearing the evidence of the commander of the court orderlies at the
Kroonstad court cells. The commander testified
that the accused
before the court were shackled in compliance with a Provincial Order
of 2010 issued by the Police.
[3] The
first issue that needs mentioning in this review, is that the recusal
of the Magistrate has rendered all the proceedings in
the trial a
nullity. It has the further effect that the trial must now commerce
de
novo
before
another presiding officer.
1
Strictly
speaking, it is therefore not necessary for this Court to make any
orders to such effect, as the Magistrate has suggested,
unless the
recusal itself is set aside for some reason. A trial
de
novo
would
follow as a matter of logic without the review Court having to set
aside the proceedings and to order a hearing
de
novo.
From what is set out hereunder, I am not inclined to find that the
Magistrate has erred by recusing himself from the proceedings.
In my
view, there was good reason for him to recuse.
[4] The
shackles or leg irons on the accused in court provided the good
reason. In his judgment pertaining to this question, the Magistrate
found that shackles or other restraints on accused persons should be
the exception and not a rule. When an accused comes to court
to
defend himself, he must not be restrained in any way whatsoever,
unless the court so directs, he stated. If there are reasonable
grounds for believing that an accused will be violent or will attempt
to escape, the court may allow shackles or leg irons. These
remarks
of the Magistrate cannot be faulted, since they are in line with the
sentiments expressed by a number of courts over the
years.
2
[5]
In
S
v PHIRI,
3
VAN
DER WESTHUISEN, J
(as he then was) said the following:
“
Courts
have on several occasions expressed the clear view that the practice
of accused persons appearing in court in manacles, leg
irons, chains
or prison clothing is unsatisfactory, undesirable and objectionable
and is to be deprecated and strongly disapproved
of. On the simplest
and perhaps most technical it may indicate to a judicial officer that
the accused has been brought from prison,
where he or she is serving
a sentence for a previous conviction and thus in effect place
inadmissible evidence before the court.
Under certain circumstances
it may also influence a judicial officer to draw an inference about
an accused’s character, for example
that he or she is a dangerous
person and a potential threat to the public, court officials, or the
judicial officer. Thus it may
even induce a sense of fear or
apprehension. It may also lead to an inference that he or she had
escaped from custody before, or
has given reason to believe that he
or she would escape if the opportunity arises. All of this to some
extent, relates to the presumption
of innocence, which is an aspect
of a fair trial, as guaranteed in Section 35(3) of the Constitution.
However, the undesirability
of such situation goes further. The
appearance of an accused in court in leg irons or chains or in prison
clothing violates the
human dignity of the accused as a person. The
recognition of human dignity lies at the heart of the
constitutionally guaranteed
right to a fair trial, and indeed of the
Constitution itself.”
4
[7] It
therefore speaks for itself that the discomfort of the presiding
Magistrate with the accused appearing in leg irons should
be
respected. Although his recusal had already nullified the trial
proceedings up to that point,
I
make the following orders for the sake of clarity:
The
recusal of the presiding Magistrate is confirmed.
The
trial proceedings against the accused are set aside.
The
accused must be tried
de novo
before another presiding officer.
________________
P.
J. LOUBSER, J
I
agree:
_______________
M.
OPPERMAN, J
1

S v Van Heerden and Another
1995 (2) SACR 339
(T), R v Mhlanga
1959 (2) SA 220
(T)
2

See eg. S v Stevens
1961 (3) SA 518
(C),
S v Khubeka 2013(1) SACR
256 (GNP)
S v Maputle and Another
2003(2) SACR 15 (SCA)
S v Pakkies 1985(4) SA 592
(Tk)
3

2005(2) SACR 476 (T)
4

At 482 par 15