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[2019] ZAWCHC 81
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Malizana and Others v Magistrate of the Regional Court for the Regional Division of Strand, Western Cape and Another (16165/18) [2019] ZAWCHC 81 (25 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
no.
16165/18
In
the matter between:
KELLY
MALIZANA
First
Applicant
THANDOWANI
NKOMO
Second
Applicant
HOWARD
MBOTO
Third
Applicant
VICTOR
MBANDA
Fourth
Applicant
MASITHEMBI
BONGANI
Fifth
Applicant
and
THE
MAGISTRATE OF THE REGIONAL COURT
FOR
THE REGIONAL DIVISION OF STRAND, WESTERN
CAPE
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
DIVISION
Second
Respondent
JUDGMENT
DELIVERED ON 25 JUNE 2019
SHER, J (Goliath DJP
concurring):
1.
This is an application for leave to appeal
the judgment and order which we handed down on 13 May 2019, in terms
of which we dismissed
an application to review the refusal by
the regional magistrate of Strand to recuse herself from proceedings
which are pending
before her, in which the applicants are facing
trial on charges of kidnapping, assault and murder. The basis for the
review was
that the applicants had an apprehension that the
magistrate was biased against them.
2.
We provided detailed reasons for our
judgment and order and for the purposes of this application it is not
necessary to traverse
these in any detail. By way of summary, we were
of the view that although the magistrate had frequently intervened in
the proceedings
and had asked numerous questions of the witnesses by
and large these interventions fell within the ambit and scope of her
functions
as a presiding officer. Although she did at times go beyond
what was required or expected, her interventions were primarily aimed
at clarifying aspects of the evidence which were unclear and ensuring
that the rules of evidence and procedure were properly complied
with.
3.
In addition, we noted that there appeared
to be a personality clash between the magistrate and the applicant’s
former counsel,
who no longer represents the applicants, and the
magistrate had cause to object to his behaviour on a number of
occasions. Although
most of the objections were aimed at making sure
that he did not put incorrect propositions to witnesses or did not
elicit confusing
or irrelevant evidence, he appeared to have caused
the magistrate offence for reasons which are not clear from the
record, and
on more than one occasion she remonstrated with him. This
resulted in tension between them and impatience on the part of the
magistrate,
who at times took over aspects of the questioning rather
than letting it flow naturally.
4.
Ultimately however, we were of the
considered view that as at the time when the review had been lodged
the applicants had not been
subjected to an unfair trial, nor would
the reasonable, objective and informed observer conclude that the
magistrate was biased
against them or that she would not ultimately
bring an impartial and fair mind to bear on her determination of the
matter.
5.
In
the circumstances we were of the view that this was not one of those
instances where the interests of justice required that we
should
intervene. In this regard it is well established that save in rare or
exceptional cases, where a failure of justice would
otherwise occur,
a higher court will not interfere with uncompleted criminal
proceedings before a lower court.
[1]
6.
Consequently,
when the application for leave to appeal was filed we asked counsel
to address us on whether the order which we made
remitting the matter
to the magistrate was an appealable one. In this regard the general
principle is that a judgment or order
will be appealable if,
notwithstanding its form, it is final in substance or effect,
definitive of the rights of the parties and
substantially dispositive
of the issues concerned.
[2]
7.
According to this formulation it clearly
cannot be said that the judgment we arrived at or the order which we
made pursuant thereto
was appealable. It was not final in effect in
any way, nor dispositive of the charges which the applicants are
facing, nor was
it definitive or their rights in respect thereto. All
that it did was to remit the matter to the magistrate in order that
the trial
might be completed. Thereafter the applicants will
nonetheless be able to exercise the rights they always had in regard
to any
possible appeal or review which may be warranted.
8.
The applicants have rightly pointed out
that these commonly accepted attributes of what renders a judgment or
order appealable are
not cast in stone and the courts have adopted a
flexible and pragmatic approach, which is more concerned with doing
what is appropriate
in the particular circumstances rather than
adhering rigidly to the classic formulation on the grounds of
principle.
9.
As
Nugent JA aptly remarked in
NDPP
v King
[3]
often
when the question arises whether an order is appealable what is being
asked is not whether it is capable of being corrected,
but rather
whether it should be corrected in isolation, at that moment in time,
before the proceedings have run their course. Whilst
on the one hand
it is desirous that every decision should be capable of being
corrected forthwith, in the event that it is wrong,
before it results
any adverse consequences, on the other hand the resultant delay and
inconvenience which might occur if every
decision is subject to
appeal might in itself not be in the interests of justice.
[4]
As a result not every decision should be allowed to go on appeal,
particularly where its resolution might not result in a resolution
of
the proceedings as a whole, or the principal underlying issue or
dispute.
10.
Therefore,
the SCA has held
[5]
that in
adopting a flexible and pragmatic approach to a consideration of
whether or not to grant leave to appeal aspects such as
the moment
when the appeal is being sought and the extent and effect of any
prejudice which might eventuate were leave to appeal
to be granted,
including the effects of delay and inconvenience to the parties,
witnesses and the court a
quo
etc and the desirability of avoiding piecemeal appeals, should also
be taken into account.
11.
As we have pointed out the trial in which
the applicants are embroiled is almost complete. The state’s
case was closed more
than a year ago and first applicant has already
testified. All that remains is for the remaining applicants to put
forward their
case, whereafter the magistrate will be in a position
to deliver her judgment.
12.
In
my view, having regard to all the circumstances, including the stage
the proceedings are at, it would not be in the interests
of
justice
[6]
to allow a further
appeal at this point. To do so would delay the conclusion of the
trial for a further year at least and in the
event that the appeal
were to be unsuccessful could possibly result in yet another appeal
after the ultimate conclusion of the
proceedings, whenever that might
be. This is a highly undesirable state of affairs.
13.
The applicants complain that the potential
prejudice they would suffer should they not be granted leave to
appeal is ‘severe’
as they would have to continue in a
trial before a presiding officer who they believe to be prejudiced
against them, and they would
be judged on the basis of the
‘inadequate and incomplete’ cross-examination and
presentation of their case by their
former counsel.
14.
To my mind there is little merit in these
submissions. Any inconvenience or prejudice which the applicants
believe they might continue
to suffer is capable of being remedied,
in the event that the applicants are convicted, by way of a further
appeal or, in the event
that the circumstances are warranted, even a
further review, once the magistrate has handed down her final
judgment. Of course,
there may be no need for any of this in the
event that the applicants are acquitted.
15.
As far as their complaint in relation to
the inadequate presentation of their defence is concerned, now that
they have fresh legal
representation nothing prevents the applicants
from applying to the magistrate for the relevant witnesses to be
recalled in order
that they might be subjected to such further
cross-examination as may properly be allowed. In fact, to my mind
this is a further
reason why the matter should resume before the
magistrate as soon as possible, instead of being sent off on appeal
at this point
in time. Even though the trial commenced more than two
years ago there is a far greater chance that the witnesses will still
be
available at this point in time.
16.
Furthermore, to allow an appeal at this
point could create an unfortunate precedent whereby any accused
who wished to avoid
facing trial could simply resort to the stratagem
of launching a frivolous challenge on the grounds of alleged bias,
knowing that,
although there was no merit in it, because such a
challenge would be appealable it could be utilised to frustrate and
delay the
proceedings to such an extent that the accused might
ultimately never be brought to justice. In my view, to allow an
appeal at
this point would fundamentally undermine the principle that
a higher court should generally not intervene in uncompleted
proceedings
before a lower court, save in exceptional circumstances,
where the interests of justice require it.
17.
In
the result, I am of the view that, as in the case of orders which
have been made by appellate courts
[7]
in similar circumstances, the application for leave to appeal should
be struck from the roll.
M
SHER
Judge
of the High Court
I
agree, and it is
so ordered
.
P
GOLIATH
Judge
of the High Court
[1]
Wahlhaus
& Ors v Additional Magistrate, Johannesburg & Ors
1959 (3) SA 113
(A) at 120A-B;
Ismail
v Additional Magistrate, Wynberg
1963 (1) SA 1
(AD) at 6G-H.
[2]
Zweni v
Minister of Law & Order
1993
(1) SA 523
(A) at 532J-533A.
[3]
NDPP v
King
2010 (2) SACR 146
(SCA) at paras [50]- [51].
[4]
Id
at para [51].
[5]
Government
of the Republic of South Africa v Von Abo
2011 (5) SA 262
(SCA) at para [17].
[6]
S
v Western Areas Ltd & Ors
2005
(5) SA 214
(SCA) at para [20];
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation
2018 (6) SA 440
(SCA) at para [27];
Director-General,
Dept of Health & Ano v Islam & Ors
[2018] ZASCA 48.
[7]
Cronshaw
& Ano v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(AD);
Van
Niekerk & Ano v Van Niekerk & Ano
2008
(1) SA 76
(SCA);
Cipla
Agrimed
n6.