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[2017] ZAGPPHC 309
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Djuma and Others v S (A423/2015) [2017] ZAGPPHC 309 (12 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A423/2015
DATE:
: 12/4/2017
IN
THE MATTER BETWEEN:
NZEYIMANA
DJUMA
1
ST
Appellant
MORISHO
MINANI
2
ND
Appellant
FIDELBYAMO
3
RD
Appellant
And
THE
STATE Respondent
JUDGMENT
KOLLAPEN
J:
1.
The appellants were all convicted and sentenced as follows in this
Court (functioning as the Mpumalanga Division) on the 8th
of August
2013:
•
Murder
- Life imprisonment
•
Robbery
with aggravating circumstances - fifteen years' imprisonment
•
Possession
of unlicensed firearm - l year's imprisonment
•
Possession
of ammunition - l year's imprisonment
2.
Leave to appeal against conviction and sentence was granted by
the trial Court.
3.
The only basis upon which the appellants challenge their
conviction and sentence is what they characterise as the appearance
of
bias on the part of the Presiding Judge insofar as it related to
his refusal to recuse himself from the trial of the appellants.
At
the hearing of this appeal, counsel for the appellants in response to
questions from the Bench, indicated that this was the
only basis upon
which the conviction was attacked and that in particular no challenge
was being advanced in respect of the merits
of the conviction.
4.
The recusal application took place against the following
background:
i)
The appellants were initially arraigned with two other
co-accused and at the commencement of the trial, the two co-accused
pleaded
guilty, and were convicted and sentenced to,
inter alia,
life imprisonment;
ii)
Shortly after the guilty pleas of the appellants' former
co-accused were tendered, and in contemplation of a separation of
trials
being ordered, a lengthy exchange occurred between counsel and
the Bench about the issue of whether in the event of the trials being
separated, the same Judge who had convicted the appellants'
co-accused should preside in the trial of the appellants;
5.
While the State offered no objection to the presiding judge
continuing to sit in the separated trial, counsel for the appellants
objected and urged the judge to recuse himself.
6.
In refusing to recuse himself, the learned Judge accepted that
while it is normal following a separation of trials, that the trial
of those who pleaded guilty is conducted before a different judicial
officer to the one who recorded the guilty plea, he was of
the view
that he was not precluded from presiding over the trial of the
appellants and in support of such a stance indicated that:
i)
The guilty pleas of the appellants' co-accused was not
evidence against the appellants and a judicial officer was required
to consider
separately and independently the evidence against the
appellants. In this regard the learned Judge pointed out that judges
on a
regular basis admit confessions (which may have details of the
involvement of the co-accused) which are not admissible against a
co-accused, but judges are not expected to recuse themselves simply
on account of this;
ii)
The presiding Judge was concerned about the long time that the
appellants had been in custody and he was keen to finalise the trial
without further delays;
iii)
The presiding Judge was approached at a coffee shop by a
witness who was 82 years old, who expressed the hope that the case
would
be finalised without further delay.
7.
Counsel for the appellants all took the stance that the
learned Judge should recuse himself as the appellants would be
prejudiced
by him continuing to preside over the separated trial
largely on account of the plea of guilty which their co-accused had
tendered,
where, in such pleas, the appellants were implicated.
8.
The trial of the appellants then proceeded before the same
Judge and the appellants were convicted and sentenced as set out
above.
Analysis
Ø
The law
,
the right to fair trial
,
bias and the test for bias
9.
The right to a fair trial is constitutionally guaranteed if
one has regard to Section 35(3) of the
Constitution.
It is the hallmark of a fair and just process in the
determination of guilt or innocence that accused persons enjoy. At
the same
time the right is given content to and operationalised in
the context of the facts and circumstances of each case in the
determination
of whether a trial was fair or not.
10.
In
S v
LE GRANGE AND OTHERS
[2008] ZASCA 102
;
2009
(1) SACR 125
(SCA)
at 140e-fthe following remarks capture the
essence of fair trial:
'A cornerstone of our
legal system is the impartial adjudication of disputes which come
before our courts and tribunals. What the
law requires is not only
that a judicial officer must conduct the trial open-mindedly,
impartially and fairly, but that such conduct
must be 'manifest to
all those who are concerned in the trial and its outcome, especially
the accused.' The right to a fair trial
is now entrenched in our
Constitution. As far as criminal trials are concerned, the
requirement of impartiality is closely linked
to the right of an
accused person to a fair trial which is guaranteed by s 35(3) of our
Constitution. Criminal trials have to be
conducted in accordance with
the notions of basic fairness and justice. The fairness of a trial
would clearly be under threat if
a court does not apply the Jaw and
assess the facts of the case impartially and without fear, favour and
prejudice. The requirement
that justice must not only be done, but
also be seen to be done has been recognised as lying at the heart of
the right to a fair
trial. The right to a fair trial requires
fairness to the accused, as well as fairness to the public as
represented by the State.'
11.
Similar sentiments were expressed in
S v
TYEBELA
1989 (2) SA 22
(AD)
at
29G-H
to the following effect:
'It is a fundamental
principle of our law and, indeed, of any civilised society that an
accused person is entitled to a fair trial...This
necessarily
presupposes that the judicial officer who tries him is fair and
unbiased and conducts the trial in accordance with
those rules and
principles or the procedure which the law requires.'
12.
As I understand the stance of the Appellant, it is that the
failure by the trial Judge to recuse himself resulted in the trial of
the Appellants being unfair in that the conduct of the learned Judge
before the commencement of the trial bore the appearance of
bias.
13.
The Constitutional Court in
S v
BASSON
2007 (1) SACR 566
CC
(at 590b) affirmed the
proposition that 'The impartiality of a judicial officer is crucial
to the administration of justice. So
too is the perception of his or
her impartiality.' The Court went on to add that in this regard it
was not necessary for a litigant
who complained of bias to establish
a real likelihood of bias, it being sufficient to demonstrate a
'reasonable apprehension of
bias'.
14.
Before dealing with the test to be followed in the
determination of whether a reasonable apprehension of bias existed,
the Court
set out the following core principles within which the
issue should be adjudicated and they include:
a)
There was a presumption in our law against partiality of a judicial
officer and this was largely
based on the recognition that legal
training and experience prepare Judges to determine where the truth
may lie in the face of
contradictory evidence;
b)
The presumption of impartiality is not easily dislodged and cogent
and convincing evidence was necessary
in order to do so;
c)
That fairness required a judge to be actively involved in the
management of the trial, to control
proceedings and to ensure the
proper utilisation of resources and thus a supine approach was not
justifiable.
15.
Against the backdrop and the operation of the above principles
the Court affirmed the test for bias as laid down in
PRESIDENT
OF THE RSA
v
SOUTH AFRICAN RUGBY FOOTBALL UNION
v
SARFU
[1999] ZACC 9
;
1999 (4) SA 147
CC
in the
following terms:
'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 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.'
16.
Could it then be argued that the fact that the trial judge
also presided over the trial of the Appellants co-accused and
convicted
them on a plea of guilty which in its detail
implicated the Appellants, gave rise to a reasonable
apprehension
of
bias? In addition could it be said that the clear intimation by the
trial judge expressing a desire to finalise the trial as
opposed to
postponing it was a factor in informing such a reasonable
apprehension of bias and finally could it be said that
the views of
an aged witness with regard to finalising the trial, which were
conveyed to the judge and which he placed on record,
was also a
factor in contributing to the reasonable apprehension of bias?
17.
While it may often happen in practise that following a
separation of trials different judicial officers
deal
with the different separated trials,
this is not a requirement and in
S v Somciza
1990
(1) SA 361(A)
the Court approved the stance taken in
R v T
1953 (2) SA 479
(A)
that a judicial officer who sat in
the trial of an accused who pleaded guilty, was not precluded from
presiding in the trial of
the remaining accused. In
SARFU
(supra) it was assumed that judicial officers on account of
their experience and training would 'disabuse their minds of any
irrelevant
personal beliefs or predispositions'.
18.
In addition judicial officers in criminal trials are often
required to admit confessions where a co-accused is implicated. Such
a confession does not constitute evidence against other co-accused
and judicial officers in those situations are expected to disabuse
themselves of the contents of a confession in so far as it may relate
to others. It is largely accepted that this practise does
not lend
itself to a reasonable apprehension of bias and so it can hardly be
contended that the facts
in
casu
should do so.
19.
Accordingly on this aspect of the challenge, it can hardly be
said that the mere fact that the trial judge presided over both
trials
would give rise to a reasonable apprehension of bias in the
mind of a reasonable, objective and informed person.
20.
With regard to the other two legs on which the challenge is
advanced they both in a sense relate to the desire of the trial judge
to manage and finalise the trial, without undue delay as well as the
expressed wish of a witness. Given the role of the judge in
managing
the trial to which reference has been made, it can hardly serve as a
foundation for bias when such a view is expressed.
On the contrary
such a stance is consistent with what should be expected of judges in
ensuring the proper management of a trial.
Finally the views of the
witness with regard to her desire to finalise the trial may well have
coincided with those of the judge
but that is hardly remarkable or
noteworthy. All things being equal, most witnesses wish to have an
efficient trial just as most
accused do and just as all judges
do. I can accordingly find nothing untoward
in these assertions
and in my view they do not serve to advance the
case for the Appellants.
21.
In the circumstances, I must conclude that there existed no
basis for the trial judge to have acceded to the application for his
recusal and the appeals against conviction must fail.
Sentence
22.
In argument Counsel for the appellant conceded
that the trial court's approach to sentencing was beyond
reproach and that there was no basis laid for interference by this
Court. Such a concession was correctly made in my view and is
in fact
supported by the facts of the matter and the circumstances of the
Appellants. The finding that no substantial and compelling
circumstances existed to justify a departure from the minimum
prescribed sentence is accordingly unassailable.
23.
The appeal against sentence must accordingly also fail.
ORDER
24.
In the circumstances I would propose the following order:
•
The
appeal against conviction and sentence is dismissed.
__________________________
N
KOLLAPEN
JUDGE
OF THE HIGHT COURT
I
AGREE,
__________________________
L
M MOLOPA-S THOSA
JUDGE
OF THE HIGH COURT
I
AGREE,
__________________________
T
JRAULINGA
JUDGE
OF THE HIGHT COURT
IT
IS SO ORDERED.
A423/2015
HEARD
ON: 17 February 2017
DATE
OF JUDGMENT:
APPEARANCES:
FOR
THE APPELLANT: Adv. T R Malanguti
INSTRUCTED
BY:
Pretoria Justice Centre
_________________
FOR
THE RESPONDENT: Adv. A J Fourie
INSTRUCTED
BY:
The Director of Public Prosecutions