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[2018] ZAGPPHC 9
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Lehasa v Director of Public Prosecutions and Others (392/2017) [2018] ZAGPPHC 9 (22 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
HIGH
COURT REFERENCE NO: 392/2017
MAGISTRATE'S
SERIAL NO: 2/2017
CASE
NUMBER: SH2/97/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
22/1/2018
In
the matter between
EZEKIE
MALATSI
LEHASA
APPLICANT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
FIRST
RESPONDENT
ADVOCATE
J.P.
CONRADIE
SECOND
RESPONDENT
THE
REGIONAL COURT
MAGISTRATE
THIRD
RESPONDENT
(P.
NEL, COURT 1)
REVIEW
JUDGMENT
Baqwa
J
[1]
The four accused in this matter were arrested and charged in January
2014 on charges of robbery with aggravating circumstances
and
attempted murder. They are Ezekiel Malatsi Lehasa (accused 1),
Nhlanhla Ntuli (accused 2), Solomon Williams (accused 3) and
Sipho
Vimbele (accused 4).
[2]
They appeared before the Soshanguve Magistrate's Court on several
occasions until the matter was eventually transferred to the
Pretoria
North regional Court 2 where the matter was again postponed for
various reasons on different occasions.
[3]
On 26 January 2015, the charges against accused 2 and 4 were
withdrawn by the then Public Prosecutor, Mr T. Motala as a result
of
which Mr Lehasa, the applicant in this review application, remained
the only accused and the matter was set down for trial on
21 and 23
September 2015.
[4]
0n 21 September 2015 the matter did not proceed but the Control
Public Prosecutor re-visited his decision and re-instated the
charges
against the other accused. The matter was subsequently postponed for
various reasons.
[5]
On 5 September 2016 the matter was transferred to Regional Court 3,
apparently due to a congested roll in Regional Court 2,
for hearing
on 9 September 2016.
[6]
0n 9 September 2016 the matter served before the Regional Court 1 and
not Regional Court 3.
[7]
I pause to mention that this application for review is brought by
accused 1 against the Office of the Director of Public Prosecutions,
Pretoria as the first respondent. Advocate H. Conradie, the current
Public Prosecutor in this matter and Mr. P. Nel, the presiding
Regional Magistrate in the Regional Court 1 as the third respondent
[8]
The purpose of the application is to review and/or set aside the
decision of the third respondent's refusal to recuse himself.
It is
pertinent to give a brief background to the decision under review.
[9]
From 9 September 2016 there were various postponements until the
matter was set down for trial on 6 February 2017. On 6 February
2017
an application was brought by accused 3’s legal representative
for the recusal of the second respondent from this matter.
[10]
The basis of the application was that on the date of trial the second
respondent
went to the third respondent's office
in the absence of the accused
persons'
legal representatives and spent about 30 minutes with
the
third
respondent
thereby creating an impression that there was a
discussion about the merits of pending case
[11]
Upon hearing the application, the third respondent would not make a
decision on the second respondent's recusal. The matter
was referred
to the first respondent's office. The first respondent responded by
letter as follows on 3 May 2017:
“
After
careful consideration of all the available information I have decided
not to remove Adv. J. P. Conradie as prosecutor from
the
abovementioned case.
You
are referred to
Porritt and Another v National Director of
Public
Prosecutions
and Others
2015 (1) SACR 533
(SCA) in
this regard. This office is of the opinion that your client was not
prejudiced by the prosecutor's action.
Furthermore,
there has been no plea or any evidence tendered by the State as yet
there was also no basis laid in the application
of how the
prosecutor's action will prejudice or did prejudice your client.
It
is for the magistrate to decide whether your client received a fair
trial.
Signed
Deputy Director of Public Prosecutions."
[12]
A further letter on the same date by the clerk to the first
respondent states:
"
The
Director of Public Prosecutions remarks follows:
1.
I decline to remove Adv. J. P. Conradie as prosecutor from the
abovementioned case.
2.
Adv. Conradie is, however, advised to refrain from meeting the
presiding officer without legal representative being present, in
cases that are set down for trial.
Signed
Chief Clerk to the Director of Public Prosecutions, Pretoria."
[13]
The matter was enrolled for hearing on 19 June 2017 when an
application was brought on behalf of the applicant herein for the
recusal of the third respondent. The reasons advanced were the same
as the reasons furnished in the application for recusal of
the second
respondent. The third respondent dismissed the application. Despite
the dismissal the matter was further pursued on
October 2017 when the
third respondent stated that he had already made a ruling, hence this
application for review.
[14]
In a similar application in the
Porritt
case
(supra)
at
P534 (g - j) to 535a the following was stated:
"
There
w
as
no suggestion of
conduct on his part that could have constituted
a
bas
is
for
the- existence of
a
reasonable
apprehension in the minds of
the
appellants that he
was
biased
against them. That he at all times
performed
his
normal
duty
as
prosecutor and
senior official of the NPA
was
uncontroverted.
They could
not be removed simply because they were not independent
of
the
complainant which in the present
case
was
the state. The fact that Coetzee was
linked to
SARS,
another
component of the state, could not be held to be
a
basis
for his removal from the
case. He too was not alleged to have
conducted
hi
self
in
an improper manner at all and their previous roles would not per
se
bring ab
out substantive
unfairness in the ensuing trial. (Paragraph [20] at 543f –
544b.)
Held,
further, that the role of prosecutors in
a
criminal trial could not
be
equated with that of magistrates or judges: their duties, functions
and responsibilities were different, and the test applied
by the
court a quo
was
that
for the recusal of
a
judicial
officer, and
was
the
wrong test. (Paragraph [21) at 544c.)
Held,
further, that the appeal had to be dismissed and the question of law
reserved answered in favour of the state. The matter
was remitted to
the court
a
quo for it
to proceed with the criminal trial. (Paragraph [24) at 545d.)"
[15]
Bearing in mind what was stated in the second respondent's letter
quoted above dismissing the application for the recusal of
the second
respondent, I am not persuaded that the third respondent's bias can
be anticipated even before the accused have pleaded.
There is
therefore no basis for the application for his recusal. The
preconceived perception of bias on the applicant's part is
too flimsy
a ground to form a basis of bias which would justify a recusal on the
part of presiding magistrate.
[16]
Bias ought to be demonstrable on a factual basis. It must not be
merely alleged in manner that could be described as a figment
of
another's imagination. I am tied that in the present case the
directive given to the second respondent by the first respondent
is
sufficient to address the applicant's concerns. In my view, recusal
of the third respondent cannot be justified.
[17]
In the circumstances the decision of the third respondent not to
recuse himself is confirmed.
[18]
In the result I propose that the application for review be dismissed
and that the matter be remitted to the Regional Court
1 for it to
proceed with the criminal trial.
Baqwa
S
Judge
of the high court of South Africa
Gauteng
Division, Pretoria
I
agree
.
THOBANE
S
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA