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[2019] ZAECBHC 22
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Makaphela and Others v Acting Regional Court Magistrate Mr Dumani and Others (816/18) [2019] ZAECBHC 22; 2020 (2) SACR 427 (ECB) (14 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, CIRCUIT COURT BHISHO)
Case No: 816/18
REPORTABLE
In
the matter between:
BUSISWA
BERYL MAKAPHELA
First
Applicant
ANDISWA
MBEBE
Second Applicant
NOVAKALISA
ALBERTINA APRIL
Third Applicant
NOKUBONGA
JONGIHLATHI
Fourth Applicant
and
ACTING
REGIONAL COURT MAGISTRATE
MR
DUMANI
First Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS BHISHO
Second Respondent
DEPUTY
DIRECTOR SPECIALISED COMMERCIAL
CRIMES
UNIT
,
PORT
ELIZABETH
Third Respondent
MINISTER
OF JUSTICE & CORRECTIONAL
SERVICES
Fourth Respondent
REVIEW
JUDGMENT
THE COURT:
[1]
This is an application for the review of the decision of the
Zwelitsha Acting Regional
Court Magistrate (first respondent), who
refused to recuse himself from a criminal case (number RCZ112/2015).
The first and fourth
respondents did not oppose the application but
are opposing a costs order only. The matter came before us on 1
August 2019. Due
to the urgency with which we regarded the matter on
that day we made the following order:
‘
1.
The applicant’s failure to bring this review application
timeously is condoned.
2.
The first respondent’s decision not to recuse himself as a
presiding officer
in the
part-heard criminal matter in the Zwelitsha Regional Court under case
no.
RCZ 112/2015 is
reviewed and set aside.
3.
The trial in the matter mentioned in paragraph 2 above is directed to
start de
novo before another
Regional Magistrate.
4.
The issue of costs is reserved.
5.
The first respondent is invited to show cause (in writing) within two
weeks of
the date of
this order, why he should not be directed to pay the costs of this
application in his personal capacity.
6.
Reasons for this order and any costs order which may follow, are
reserved
pending the response from the first respondent.’
[2]
The first respondent has filed an affidavit in accordance with
paragraph 5 of our
order in an attempt to persuade us not to mulct
him with a costs order
de bonis propriis
. The applicants filed
an opposing affidavit.
[3]
Before dealing with the affidavit of the first respondent it is
necessary to briefly
set out the background to the review. The
applicants together with seven other accused stood trial in the
Zwelitsha regional court
before the first respondent under case
number RCZ 112/2015 on various charges of fraud, corruption and money
laundering. They all
pleaded not guilty to the charges. After various
postponements, the trial commenced on 20 February 2017. The first
witness for
the State was called to give evidence.
[4]
On 11 June 2018, while the State was still busy leading its first
witness, the erstwhile
accused number 7 decided to change her plea of
not guilty to one of guilty. On 21 June 2018 the first respondent
proceeded with
the case and accepted
her
plea explanation in terms of
section 112(2)
of the
Criminal Procedure
Act 51 of 1977
{“the Act”). In the plea explanation she
implicated her co-accused in the commission of the offences with
which they
had been charged.
[5]
In the premises she was allocated a new case number to be tried
separately from her
co-accused. On that same day the first
respondent, having satisfied himself of the correctness of the guilty
plea, convicted and
sentenced her accordingly. Thereafter the
prosecutor applied for and was granted a separation of trials. The
remaining accused
were remanded to 13 August 2018.
[6]
On that day the matter did not proceed but was rolled over to 14
August 2018. On 14
August 2018 the first respondent wanted to
continue with the matter as if nothing had happened. Defence counsel
on behalf of accused
number 6 (the first applicant) applied for his
recusal. This application was supported by all the defence counsel
including the
prosecutor. The first respondent nevertheless dismissed
the application to recuse himself. Thereafter the parties applied for
the
matter to be
adjourned
as they
wanted to take his decision on review. The matter was then
adjourned
pending the finalisation of this review application.
[7]
As indicated earlier, at the hearing of the review before us all the
parties were
ad idem
that the magistrate ought to have recused
himself (correctly in our view) and that the review application
should accordingly succeed.
It was on that basis that we made the
order mentioned in paragraph 1 above. It is therefore not strictly
necessary to deal with
the merits of the recusal except where it has
a bearing on the costs occasioned by the review application. The only
issue to be
decided then is the costs of this application.
[8]
It is evident that the first respondent adopted an intransigent
attitude in his refusal
to recuse himself from presiding over the
trial of the remaining accused. He filed an answering affidavit in
which he merely stated
that he was not opposing the review
application but would abide the decision of this court. He further
submitted that he had acted
in his official capacity in the discharge
of his duties and had committed no irregularity. Except to say that
there was no magistrate
available, he did not take the opportunity to
explain why he refused to recuse himself.
[9]
The obligation to give reasons for a decision fulfils a variety of
functions. Reasons
serve to ensure accountability. They inform the
person affected by the decision as to the justification thereof.
Reasons enable
the person affected to determine whether he or she
should abide the decision or take steps to have it corrected or set
aside.
Baxter: Administrative Law at 228
puts it thus:
‘
In
the first place a duty to give reasons entails a duty to rationalize
the decision. Reasons therefore help to structure the exercise
of
discretion, and the necessity of explaining why a decision is reached
and requires one to address one’s mind to the decisional
referents which ought to be taken into account. Secondly, furnishing
reasons satisfies an important desire on the part of the affected
individual to know why a decision was reached. This is not only fair-
it is also conducive to public confidence in the administrative
decision-making process. Thirdly, - and probably a major reason for
the reluctance to give reasons - rational criticism of a decision
may
only be made when the reasons for it are known…’
[1]
[footnotes
omitted].
[10]
We further gave him an opportunity to give us reasons why the State
should be saddled with the
costs of this application. He
contended
that when he refused the application
for recusal he was exercising his discretion. He argued that he
exercised this discretion
in terms of
section 157
of the Act. He
reasoned
that previously it had been
held that a judicial officer who took a plea of guilty should not
continue with the remaining accused
who pleaded not guilty because he
will no longer be free from prejudice. He argued that this view was
rejected by the Appellate
Division which held that the magistrate is
a trained judicial officer.
[11]
It must be assumed that the discretion alluded to by the first
respondent relates to a separation
of trials because this is what
section 157
is about. The Court has a discretion, in terms of
s 157
of the Act, to order a separation of trials. In exercising its
discretion under that section, the trial court has to weigh up the
prejudice likely to be caused to the applicant by a refusal to
separate, against the prejudice likely to be suffered by the other
accused or the State if the trials are separated and then to decide
whether or not, in the interests of justice, a separation of
trials
should be ordered.
[2]
[12]
Section 157
of the Act has nothing to do with whether or not the
magistrate should recuse himself from the case. If the
first
respondent
had in mind the provisions of this
section when he refused to recuse himself that was an error on his
part.
[13]
After the first respondent had filed his affidavit in relation to
costs we invited the parties
including the first respondent to submit
heads of argument. Heads of argument were duly filed on behalf of the
first respondent
and the applicants. The cases to which the first
respondent had referred as Appellate Division cases in his
explanatory affidavit
are presumably
R v T
1953 (2) SA 479
(A)
and
R v D and Another
1953 (4) SA
384
(A).
The correctness of these decisions was doubted in
SACCAWU and
Others v Irvin &
Johnson Ltd (Seafoods Division Fish
Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC)
especially in the light of
the Constitution.
[14]
In his affidavit the first respondent seems to have relied on his
training as a judicial officer
as one who knows that he must decide
the case on the basis of the evidence before him. The
dictum
in
S v Somciza
1990 (1) SA 361
(A) at 365J
is apposite:
Friedman AJA said:
‘
However
dispassionately the magistrate might feel he would be able, because
of his judicial training, to weigh up the evidence afresh
once he has
heard the appellant's evidence, the appellant is, understandably,
unlikely to feel complacent about his prospects of
receiving a fair
trial before that magistrate.
'
In
the circumstances of this case the first respondent ought to have
realised that his conduct would not be in keeping with the
spirit of
our Constitution. The perception that the accused would not receive a
fair trial where the same magistrate had convicted
their co-accused
who had implicated them was unavoidable. This was properly submitted
in argument by all the legal representatives
and particularly by the
State prosecutor.
[15]
The applicants have argued that we should draw an inference that the
first respondent was acting
with mala fides when he refused the
recusal application. It has been submitted that the fact that first
respondent looked for another
magistrate to continue with the trial
is an indication that he knew that it was not proper for him to
continue with the rest of
the accused. With this knowledge, so the
argument ran, he nevertheless persisted with his conduct and resisted
all attempts to
facilitate his recusal. The applicants accordingly
contend
that the first respondent should
be ordered to pay the costs of the review
de
bonis propriis
on an attorney and
client scale. In the alternative, they contend that the first and the
fourth respondents should be ordered to
pay punitive costs jointly
and severally, the one paying the other to be absolved.
[16]
In respect of a
de bonis propriis
costs order the applicants
rely in the main on constitutional court authority decided in the
context of the conduct of public officials.
The argument is
attractive but loses sight of the fact that magistrates are not
viewed in the same light as other public officials
who discharge
public duties. Furthermore in the notice of motion the
applicants did not pray for a punitive cost order. Differently
put,
the argument in support of a punitive costs order has not been
motivated in the founding affidavit.
[17]
The first respondent, on the other hand contends that he has immunity
against actions for damages
when he is performing his official duties
unless malice can be shown. He claims that he has not acted
maliciously as he had no
direct or indirect interest in the matter.
The common law rule is that a successful party is entitled to costs.
However costs are
not ordinarily awarded against a party acting in
his official capacity unless it can be shown that he was actuated by
malice or
is guilty of grossly improper conduct.
[3]
[18]
In the present matter the only explanation by the first respondent is
that he exercised his discretion.
In this regard he erred. Recusal
has nothing to do with discretion. It involves a reasonable
apprehension on the part of the litigant
that the judicial officer
may not bring about an impartial mind in the adjudication of the
matter and therefore a perception that
he may not receive a fair
trial.
[19]
On the facts of this case the question is whether an inference can be
drawn that the first respondent
was actuated by malice when he
refused to recuse himself. That is possible but it is not the only
inference that can be drawn from
his conduct. It is possible that
this was a genuine mistake in the interpretation of the law.
,
albeit that t
he first respondent does not
pertinently state that he relied on cases of the then Appellate
Division. His conduct may be regarded
as reprehensible especially in
the light of the fact that all the parties were
ad
idem
that he should recuse himself
from the matter. He was alive to the existence of evidence against
the applicants from what was contained
in the section 112(2)
statement of accused number 7. His persistence in continuing with the
matter is a source of grave concern.
Be that as it may, we are of the
view tha
t malice has not been shown.
Nor
is this a case where the magistrate ought to be mulcted with costs
de
bonis propriis.
We will deal with
why we say this in due course.
[20]
The next question is whether the State should be saddled with costs.
The applicants argue, in
the alternative, that the first respondent
and the State should pay the costs of the application jointly and
severally the one
paying the other to be absolved. In
Du
Preez
[4]
it was said:
‘
There
is no justification for saddling the State with liability for costs
where the action of a judicial officer in his capacity
as such has
been corrected or set aside on review. Costs are not awarded against
the State when on appeal a
magistrate's judgment is set aside
because he is in error as to the law or in his findings of fact. It
would be surprising if, in
the event of the same result being
achieved on review, the State were to be held responsible for the
successful applicant's costs.
Moreover it is inappropriate that the
Court's displeasure with the conduct of an appellant should result in
an order mulcting in
costs the State which was neither a party to the
suit nor responsible for the judicial officer's actions. There is no
room in such
a case for the application of the doctrine of respondeat
superior
.’
[21]
The decision of the Supreme Court of Appeal in
Du
Preez
is binding on us unless it is distinguishable from the present
matter. We are not able to find that it is. This is not a civil
matter. If the applicants had continued the case to finality and the
applicants were thereafter successful on review or on appeal,
the
result would not have been any different to the numerous criminal
convictions which are set aside on appeal or review on a
regular
basis, without concomitant costs orders against the State and/or
presiding officer
s.
However, civil matters are on a different footing. For one, the
State, which is by
implication
a party to all criminal proceedings, is not a party to the
proceedings in a civil matter. We refer by way of example to
Ntuli
v Zulu
[5]
where
Jappie J dealt with the categories of cases where costs can be
awarded against judicial officers, acting in their judicial
capacities. In that matter the court made a cost order against the
magistrate in her official capacity having found that she had
not
acted
mala
fide
or with manifest bias, in which case a
de
bonis propriis
order
against her may have been justified.
[22]
As we see it, the matter before us is on all fours with the facts in
Motata
v Nair NO and Another
[6]
.
In
that matter the accused had applied to the High Court for the review
and setting aside of the decision by the magistrate presiding
over
his criminal trial wherein the magistrate had determined that, for
purposes of a
voir
dire
into
the authenticity and admissibility of certain video clips, the State
was entitled to play the recordings and a transcript in
order to
enable the court to determine their admissibility. The accused
brought his application on the basis that the magistrate’s
decision allegedly constituted a gross irregularity which was
severely prejudicial to him in the conduct of his defence, inasmuch
as the recordings might be self-incriminating, and therefore
interfered with his constitutional right to a fair trial. Although
the reviewing court ultimately found in the magistrate’s favour
and referred the matter back to the trial court to be finalised,
the
principle enunciated in that matter is equally applicable to the one
before us and is stated thus in the judgment of Hancke
J and
Pickering J:
‘
[
44]
Applicant originally sought an order for costs against such of the
respondents as opposed the application. This in turn led
Mr Van Zyl
to seek an order for costs against applicant in the event of the
application being dismissed. Having regard to the fact
that this is a
criminal matter in which an accused is not usually saddled with
costs, we are of the view
that it is not appropriate to make
any order as to costs. Cilliers The Law of Costs 3 ed paras 12.19 -
12.24.’
[23]
There is one last issue which calls for comment. The applicants seem
to rely on the unreported
case of
Tsotetsi
v The Honourable Magistrate Delize Smith and Another (23969/2015)
[2016] ZAGP JHC 329 (29 November 2016
)
for the contention that liability for costs on the part of the fourth
respondent can be based on vicarious liability. In that
matter Van
der
Linde J approved a finding by Van Der Merwe AJ in
Minister
of Safety and Security and
Others
v Van der Walt and Another
[7]
where it was held that magistrates are employees of the Minister of
Justice. This aspect was left open on appeal in
Minister
of Safety and Security and
Others
v Van der Walt and Another
[8]
save to mention that the Appeal Court reiterated that a conclusion
that the Minister is vicariously liable based on a finding that
magistrates are “employed” by the Minister, ignores the
well-established principle that magistrates, when they act
in the
course and scope of their judicial functions, enjoy, like all
judicial officers, a status of judicial independence when
they
perform these judicial functions and in so doing, form part of the
judicial branch of government.
[9]
[24]
Lest we be understood to agree with the finding by Van der Linde J,
let us clarify: We do not
agree that magistrates are employees of the
State. Magistrates do not fall within the category of public servants
employed in terms
of the Public Service Act Proclamation No. 103 of
1993. They do not fall under the Department of Justice and
Correctional Services.
The fact that they are appointed by the
Minister of Justice
by
virtue of the provisions of
section 9
of the
Magistrates’
Courts Act 32 of 1944
,
does
not detract from the fact they are not his employees. In terms of
section 10
of the
Act,
the
Minister
can only appoint them on the recommendation of the Magistrates’
Commission just like the President who appoints judges
on the
recommendation of the Judicial Service Commission. The Minister does
not have control and supervisory powers over magistrates.
He cannot
direct and control them in the execution of their judicial duties.
The Constitution provides that: ‘
The
courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear,
favour or
prejudice.’
[10]
Consequently the control element by the Minister over magistrates is
lacking.
[25]
Furthermore, the Constitutional court has ruled that magistrates are
not employees but they are
judicial officers.
[11]
We are
accordingly
of the respectful view that the cases relied upon by the applicants
defining magistrates as employees of the Minister
of Justice are, to
that extent, incorrect.
[25]
In the result there shall be no order as to costs.
_________________________
__________________________
I. T.
STRETCH
B. R. TOKOTA
JUDGE OF THE HIGH
COURT
JUDGE OF THE HIGH COURT
Appearances:
For
the applicants:
T. M
Jikwana
Instructed
by Mongoato Mavuso & Associates
For
the first and fourth respondents:
T. Makibi-Mduba
Instructed
by The State Attorney
Date
h
eads of argument submitted: 9
October 2019
Date
handed down:
14 November 2019
[1]
See also Nkondo and Others v Minister of Law and Order and Another;
Gumede and Others v Minister of Law and Order and Another;
Minister
of Law and Order v Gumede and Others
1986 (2) SA 756
(A) at 772I - J
[2]
S v Ntuli and Others
1978 (2) SA 69
(A) at 73F-G
[3]
Regional Magistrate Du Preez v Walker
1976 (4) SA 849
(A) at
853D and 855F; Cooper NO v First National Bank of SA Ltd
2001
(3) SA 705
(SCA) at para [37]; Darries v Sheriff, Magistrate's
Court, Wynberg, and Another
1998 (3) SA 34
(SCA) at 44I/J -
45A/B; Swartbooi and Others v Brink and Others
2006 (1)
SA 203
(CC) para.7; Magistrate Pangarker v Botha and
Another
2015 (1) SA 503
(SCA) para. 39.
[4]
Footnote 3 at 856A.
[5]
2005 (3) SA 49
KZN
[6]
2009 (2) SA 575
TPD
[7]
[2011] ZAGPJHC 15 (25 January 2011)
[8]
[2015] 1 ALL SA 658 (SCA)
[9]
At para 20
[10]
Section 165(2) of the Constitution Act, 1996.
[11]
Van Rooyen & others v The State & others (General Council of
the Bar
i
ntervening)
2002
(5) SA 246
(CC)
para
139