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[2018] ZAGPJHC 611
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Morake v Van Schalkwyk and Another (A765/2014) [2018] ZAGPJHC 611 (29 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A765/2014
In
the matter between:
MORAKE
DANIEL
PHENYA APPLICANT
AND
THE
MAGISTRATE MR VAN SCHALKWYK FIRST
RESPONDENT
THE
DIRECTOR OF PUBLIC
PROSECUTIONS SECOND
RESPONDENT
JUDGMENT
TWALA
J
[1]
This is an application to review and set aside the decision of the
Magistrate, Mr Van Schalkwyk (first respondent), for refusing
to
recuse himself as the presiding officer in the matter involving the
State and the applicant. Further, the applicant seeks an
order
setting aside his conviction of rape in the hands of the first
respondent for he has an apprehension of bias on the part
of the
first respondent.
[2]
Since the first respondent was not in attendance at Court, counsel
for the second respondent contended that there will be no
prejudice
if the matter were to be proceeded with in his absence. The first
respondent has filed a comprehensive affidavit and
no prejudice would
be suffered in this regard.
[3]
It is a trite principle of our law that justice delayed is justice
denied. This matter has been outstanding for almost 10 years
now and
it is my respectful view that it is in the interest of justice that
the matter be proceeded with and brought to finality.
[4]
At the commencement of the hearing of this appeal, the applicant
brought an application to file a further affidavit as further
evidence which he could not file with his founding affidavit for the
information was not known to him at the time. There was no
opposition
to this application and the first respondent had already filed its
answering affidavit explaining its position on the
new evidence
tendered by the applicant. Therefore, there being no prejudice to be
suffered by the other parties, the further filing
of the affidavit
was allowed.
[5]
It is common cause that the applicant was and is still employed as a
senior interpreter in the Pretoria Magistrates Court. On
the 2
nd
of March 2010 the applicant was charged with the offence of rape in
contravention of section 3 read with sections 1, 56, 57, 58,
59, 60
and
61 Act 32
of 2007. The trial of the matter was held before the
first respondent in the Pretoria North Magistrate Court and the
applicant
was convicted of rape on the 20
th
of August 2013.
[6]
The applicant testified in his founding affidavit that, in the first
instance, after his case was postponed for sentencing and
whilst
awaiting the transcript of the record for his new counsel, he
obtained a photograph of the first respondent reading through
a
police docket. He was not comfortable to see this and instructed his
counsel to bring the application for the recusal of the
first
respondent which application was refused. Secondly, that the crime
with which he was charge is alleged to have been committed
in the
Pretoria Magistrate Office and as a well-known figure in that court,
the matter was to be heard in the Pretoria North Magistrate
Court.
This is untenable because the first respondent started in Pretoria as
a prosecutor, a district court magistrate and regional
court
magistrate. The first respondent knew him when he acted in these
capacities. Thirdly, that the oath was not administered
properly and
in accordance with the provisions of
section 162
of the
Criminal
Procedure Act, 51 of 1977
rendering the evidence tendered before the
court as hearsay and inadmissible.
[7]
Further, in support of its case, the applicant filed the affidavit of
Advocate Petrus Frederik Pistorius which testified that
the first
respondent agreed to recuse himself in another matter wherein
Advocate Pistorius was involved for being found in possession
of
photographs of the docket and discussing a police docket with the
prosecutor in the prosecutor’s office.
[8]
The first respondent admitted in his testimony that the photograph
depicts him looking at a police docket in the tea room but
denied
that he was reading it. He stated that the docket had nothing to do
with the applicant or its case. It was irrelevant to
the case of the
applicant. He was approached by one of the prosecutors to assist him
with the assessment of a number of dockets
which were in relation to
dagga charges. He only read the first page of one of those dockets
and the charges were later withdrawn
in those matters. The junior
prosecutor approached him for they know each other as they attend the
same church. He did recuse himself
in the case of Advocate Pistorius
who found him in the office of the prosecutor. However, he stated
that he went to the office
of the prosecutor because they were not
answering the phone when he called. He was then given the photographs
by the prosecutor
and at that moment Adv Pistorius entered the
office.
[9]
It is a trite principle of our law that courts must be independent
and subject only to the Constitution and to the law, which
judges
must apply impartially and without fear, favour or prejudice. It is
an accepted principle of our law that where the judge
is actually
biased or has a clear conflict of interest or where a reasonable
person, in possession of the facts, would harbour
a reasonable
apprehension that the judge is biased, the judge is disqualified to
preside over that matter.
[10]
Section 34 of the Constitution of the Republic of South Africa Act,
108 of 1996 provides the following:
“
Access to
courts
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
[11]
The test to be applied in an application for the recusal of the judge
or presiding officer on the grounds of apprehension of
bias was laid
in
President of the Republic of South Africa & Others v South
African Rugby Football Union & Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC)
where
the Constitutional Court stated the following:
“
It follows
from the foregoing that the correct approach to this application for
the recusal of members of this Court is objective
and the onus of
establishing it rests upon the applicant. 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.”
[12]
In
Dube & Others v The State (523/07) [2009] ZSCA 28;
2009 (2)
SACR 99
(SCA)
the Supreme Court of Appeal stated the following:
‘
The rule
is clear: generally speaking a judicial officer must not sit in a
case where he or she is aware of the existence of a factor
which
might reasonably give rise to an apprehension of bias. The rationale
for the rule is that one cannot be judge in one’s
own cause.
Any doubt must be resolved in favour of recusal. It is imperative
that judicial officers be sensitive at all time. They
must of their
own accord consider if there is anything that could influence them in
executing their duties or that could be perceived
as bias on their
part. It is not possible to define or list factors that may give rise
of apprehension of bias – the question
of what is proper will
depend on the circumstances of each case.”
[13]
It is apposite at this stage to refer to the first page of the record
of the proceedings in the criminal court on the 10
th
of December 2009 when the case was postponed for hearing on the 2
nd
of March 2010:
“
The
Prosecutor: there is just one aspect your worship that the state
would like the or request the court to inquire from the accused
I
have also taken it up with Advocate Coetzee this morning when I have
contacted him telephonically whether accused before court
has any
objection to the Presiding Officer in this matter as well as the
prosecutor or any other court personnel that will be assisting
us on
that day with this trial. ………..
It is placed in
front of Regional Court 3 as we are trying to accommodate Mr Phenya
to finalise this matter as soon as possible.
He also expressed that
he would like this matter to be finalised as soon as possible. ……..
we can accommodate him
in March but that is my request your worship
that we just formally inquire from Mr Phenya as to whether he has got
an objection
as the court pleases.
Mr Phenya: Thank
you worship. First and foremost I have no objection with the
constitution of the personnel of this court as mentioned
by the
prosecutor and secondly I also have no objection to the postponement
of this case, however I need make mention that today
is my tenth
appearance.”
[14]
In terms of the record, the applicant was given an opportunity to
object to the constitution of the Court at the beginning
of the trial
and he did not have any objection at that time. Although a
point was raised that the applicant is well known
in the Pretoria
Magistrate Court and that a neutral magistrate should have been
brought from outside Pretoria to hear his matter,
it is my respectful
view that there is no merit in this argument for the applicant was
given an opportunity to object to the constitution
of the court but
emphatically stated that he has no objection. It is absurd to raise
this point at this stage when it was dealt
with in the beginning.
[15]
I find myself in disagreement with counsel for the applicant that
once a litigant has the apprehension of bias on the part
of the
presiding officer, he is disqualified to hear the matter. The
authorities are clear that the apprehension of bias must be
based on
reasonable grounds and on correct facts. The applicant did not
disclose who took the photograph of the first respondent
reading the
docket and when was it taken. He did not know which docket was being
read by the first respondent on the photograph.
[16]
I am unable to disagree with counsel for the applicant that the
applicant is a senior interpreter who knows very well if the
magistrate conducts himself unethically. The applicant does not raise
an issue of bias on the part of the first respondent with
regard to
his trial up to his conviction. It only refers to a photograph
depicting the first respondent reading a docket which
it discovered
after its trial on the merits was concluded. He does not say that the
first respondent was reading his docket. It
is the testimony of the
first respondent and the prosecutor Mr Buchling (Buchling), that the
docket related to a dagga case which
was brought before the district
magistrate. There were 17 of such cases and Mr Buchling requested
advice from the first respondent
as to whether there was any merit in
those cases. Nothing turns on the testimony of Advocate Pistorius
since the facts in that
case are not similar to the present case.
[17]
If one has regard to the principles and criteria set out in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martel et Cie &
others
2003 (1) SA 11
(SCA) para 5,
and
especially the unchallenged evidence of the first respondent and
Buchling, and the record of events that the first respondent
was in
possession or read a docket during July 2013 when the trial on the
merits of the matter was concluded on the 31
st
of October 2012 when it was postponed for argument, the probabilities
are that, indeed that docket was of no relevance to case
of the
applicant. It is my considered view therefore that the apprehension
of bias in this instance is unreasonable and not based
on any
objective and correct facts but is just illusionary.
[18]
As stated in the President’s case referred to above that 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 applicant has dismally
failed to
establish any reasonable ground for his apprehension of bias on the
part of the first respondent. Put differently, the
applicant has
failed to pass the muster as set out in the President’s case
referred to above. It is my respectful view that
a reasonable senior
interpreter in the position of the applicant would not have formed
the apprehension of bias under the circumstances
of this case and
therefore the application for review and the ancillary orders sought
falls to be dismissed.
[19]
It is disturbing to note that the applicant has been released on
warning after having been convicted on such a serious offence
for
which the legislature has deemed it fit to promulgate a minimum
sentence. It is equally disturbing to note that it took the
applicant
over five (5) years to enrol the review application for hearing when
at the beginning of trial he was eager to have this
matter finalised
as soon as possible. This is unacceptable when one considers not only
the rights of the applicant to equal treatment
before the law but
most importantly the rights of the victim of the crime and the
society at large. The victim has been waiting
for justice for the
past ten (10) years and to her justice has not been seen to be done.
This makes a mockery of the justice system
and creates the impression
in the minds of ordinary people that some are more equal than others
before the law and that cannot
be correct.
[20]
As state above, it is a principle of our law that justice delayed is
justice denied. I am of the view therefore that this judgment
must be
brought to the attention of the National Director of Public
Prosecutions who should consider urgently enrolling the matter
to
reconsider the issue of releasing the applicant on warning. Further,
to enrol this matter urgently in the magistrate court to
commence
sentencing proceedings.
[21]
In the circumstances, I make the following order:
I.
The
application for review is dismissed;
II.
The
matter is to be referred to the National Director of Public
Prosecutions for reconsideration of the release of the applicant
on
warning, within 14 days from the date of this order;
III.
The
National Director of Public Prosecutions to urgently enrol the matter
for sentencing proceedings.
________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
I
agree
___________
MATSEMELA
AJ
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA, GAUTENG LOCAL DIVISION
Date
of hearing: 11 October 2018
Date
of Judgment: 29 October 2018
For
the Applicant: Adv. J Engelbrecht SC
Instructed
by: Louw Chiloane & Associate
Tel:
012 323 0139
For
the Second
Respondent:
Adv. J Cronje
Instructed
by: Director of Public Prosecutions (Pretoria)
Tel:
012 35 16700