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[2019] ZAFSHC 211
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S v Moloi (R159/2019, A3/19) [2019] ZAFSHC 211 (17 October 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review No:
R159/2019
Magistrates Court Case
No: A3/19
In
the review between:
THE
STATE
versus
BAKILE
JUNELL MOLOI
Accused
CORAM:
NAIDOO J
et
RAMLAL,
AJ
JUDGMENT:
NAIDOO, J
DELIVERED
ON
:
17
OCTOBER 2019
REVIEW JUDGMENT
[1]
This matter was referred to us by the Regional Court, Bethlehem, in
terms of section 116(3) of the Criminal
Procedure Act 51 of 1977 (the
CPA), with the request to set aside the conviction imposed on the
accused and order that the trial
commence
de novo
before
another magistrate. The accused was charged with one count of Assault
with Intent to do Grievous Bodily Harm in the Magistrates
Court,
Lindley. He pleaded not guilty and the trial commenced on 15 April
2019. The accused was found guilty and the trial court
thereafter
stopped the proceedings on 29 April 2019 and referred the matter to
the Regional Court for sentence to be imposed on
the accused. The
accused was legally represented in the trial court.
[2]
After some delay in obtaining the typed record, the matter was
finally received by the Regional Court.
On 21 August 2019, the
Regional Court Magistrate who was assigned to deal with the matter,
addressed a letter to the trial magistrate
in the District Court,
pointing out to him that:
2.1 the
transcript of proceedings was not complete in that there was an
application for his recusal on 11 March
2019, but such proceedings
were not transcribed;
2.2 he
previously convicted and sentenced the accused for a similar offence;
2.3 he
heard the bail application in this matter, in which the accused made
full disclosure of his previous convictions,
and that he was,
additionally, addressed on the merits of the matter.
The Regional Court
Magistrate expressed doubt that the proceedings were in accordance
with justice and posed the question whether
it was not appropriate
for the trial magistrate to have recused himself from the trial.
[3]
The trial magistrate responded on 16 September 2019,
inter alia
,
as follows:
3.1
With regard to the missing portion of the transcript, he enquired
from the court clerk responsible for operating
the court recording
machine, but the latter was not able to say why there was no
recording. The Magistrate made no notes and has
no further
information in this regard. He accepts that the reason the accused
applied for his recusal is that he had convicted
the accused in all
the Lindley cases reflected on the accused’s SAP 69 form on
which the previous convictions are recorded;
3.2 He
conceded that the accused’s previous convictions were recorded
in his affidavit filed in support
of his bail application. The
magistrate also agreed that it would have been more appropriate if
another magistrate conducted the
trial (in this matter);
3.3 He
indicated that he is aware that he ought not to take into account
previous convictions or any address on
the merits in a bail
application when handing down judgment, and he alleges that he did
not do so.
Other matters also
referred to by the magistrate include the assertion that he is at a
one-man station and deals with all the criminals
in the area. As
such, he would require another magistrate to preside in his
court every day in order to hear trials. He asserts
that this
is impractical, and he was asked not to lightly recuse himself in
respect of trial matters. I intend referring
this matter to the Judge
President of this Division, to enable him to pursue the matter
through the appropriate channels.
[4]
It is well established in our law that in deciding a matter where the
recusal of the presiding officer
has been sought,
the
test to be applied is an objective one. It requires not only that the
person apprehending the bias must be a reasonable person
but also
that the complaint must be reasonable. See
Sager
v Smith 2001(3) SA 1004 (SCA)
,
where the court cited with approval the dictum of the Constitutional
Court
in
President of the Republic of South Africa and Others v South African
Rugby Football Union and Others
[1999] ZACC 9
;
1999
(4) SA 147
(CC)
,
where
the latter court, at paragraph [48], formulated the correct approach
to an application for recusal thus:
“
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.”
The
court in Sager further held, at para [15] that what applies in
respect of a Judge applies equally to a magistrate.
[5]
Where a formal bail application is heard in accordance with section
60 of the CPA, the presiding officer
will ordinarily be disqualified
from presiding in the subsequent trial. The reason for this is that
in the course of such a bail
application, numerous factors, such as
the accused person’s previous convictions, matters pending
against him, as well as
the merits of the matter are canvassed and
placed on record, as is peremptory in terms of section 60. In that
event, the presiding
officer would have gained the kind of knowledge
that may well be regarded as compromising the accused’s
constitutionally
protected right to a fair trial. [See
S v Booysen
2016(1) SACR 521 (ECG); S v Nkuna 2013(2) SACR 541 (GNP) and S v
Bruinders 2012(1) SACR 25 (WCC)]
[6]
In the present matter, the magistrate presided in the bail
application where he was privy not only to
the previous convictions
of the accused, but also to the merits of the matter. He nevertheless
proceeded to preside in the trial.
He conceded that there was an
application for his recusal, which he dismissed. The magistrate
asserts that the grounds for the
application are that he previously
convicted the accused on all the offences reflected in the SAP 69
form (being the record of
the accused’s previous convictions).
The accused was sentenced to a term of imprisonment in one of those
matters, in respect
of which he was released on parole, and committed
the current offence whilst on parole. A perusal of the SAP 69 form
reveals that
the accused was convicted eight times by the same
magistrate (who asserts that he has been stationed at the Lindley
court since
1991), albeit that some of those matters involved the
payment of an admission of guilt fine. The convictions cover the
period from
June 2006 to August 2018. The magistrate also conceded
that it would have been more appropriate for another magistrate to
have
presided in the trial.
[7]
It
would appear to me that this is eminently a matter where,
objectively, the apprehension of bias on the part of the accused was
reasonable and well grounded. In as much as the magistrate asserts
that he did not take the previous convictions or the merits
of the
matter into account when he convicted the accused, the consideration
is whether a reasonable apprehension was created in
the mind of the
accused that he would not receive a fair trial. The circumstances I
have outlined above, in my view, indicated
reasonable and acceptable
grounds for the magistrate to have been disqualified from hearing the
trial of this matter. His concession
in this regard fortifies my
view. I also find that the magistrate’s refusal to recuse
himself tainted the proceedings, and
vitiated same, necessitating the
setting aside of the conviction in this matter. I am of the view that
the Prosecuting Authority
is at liberty to decide whether it wishes
to institute proceedings against the accused again. For this reason,
I refrain from ordering
that the trial commence
de
novo
.
[8]
In
the circumstances, the following order is made:
8.1 The
conviction in this matter is set aside.
8.2
This judgment together with the following annexures are to be brought
to the attention of the Judge President
of this Division:
8.2.1 The SAP 69 form
8.2.2 The letter from the
Regional Magistrate, Mr Van Niekerk to the Magistrate, Mr
Labuschagne, dated 21 August 2019
8.2.3 Mr Labuschagne’s
response thereto, dated 16 September 2019.
S.
NAIDOO, J
I
agree.
A RAMLAL, AJ