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[2016] ZAKZPHC 93
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Longano v S (AR76/2015) [2016] ZAKZPHC 93; 2017 (1) SACR 380 (KZP) (25 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR76/2015
In
the matter between:
NICK
LONGANO APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
STEYN
J
Introduction
[1]
The appellant was charged before K Pillay J, in the KwaZulu-Natal
Local Division, Durban High Court, with one count of murder
in that
he killed his partner of eight years on Sunday the 1
st
August 2010 at the flat shared by them as a couple. He was
convicted by the court
a quo
and sentenced to fifteen (15)
years’ imprisonment. The appellant appeals against the
conviction and sentence with leave
granted by the court
a quo.
[2]
In order to properly understand the issues that arise in this appeal
it is necessary to briefly set out the background facts
and
chronology of the events before the court
a quo.
The
appellant relied, in main, on the defence of non-pathological
criminal incapacity. On appeal the grounds of appeal
were not
only focussed on the misdirection by the trial Judge in dealing with
the facts and the law but also on the following irregularities
that
occurred during the trial. Mr Scheltema SC on behalf of the
appellant submitted that the following irregularities were
so gross
that it vitiated the findings of the court
a quo
:
(a) The trial Judge’s
refusal of the application to recuse herself on 5 September 2012;
(b) The court calling the
witness, Willows, in terms of s 186 of the Criminal Procedure Act 51
of 1977 (“the Act”) without
inviting submissions from the
parties to address the court on the regularity of the procedure; and
(c) The trial court’s
ruling to allow the prosecutrix to cross-examine the witness Willows.
An additional ground was
raised by Mr Scheltema namely that the trial Judge had ruled that
reasons for her refusal to recuse herself
would be delivered, however
the court in its judgment did not furnish any reasons for the
decision not to disqualify herself.
Background
[3]
This appeal was initially set down for hearing on 31 March 2016 but
was not heard due to an incomplete record. The transcript
of
the proceedings of 5 September 2012
[1]
reveal no ruling or any reasons for dismissing the recusal
application. The appellant subsequently filed a supplementary
volume to Volume 11, which shows that the trial Judge issued the
following ruling:
‘
PILLAY J
This is an application for the recusal of the Court from these
proceedings on the basis that an expert, whose report was
handed to
the Court with full knowledge about the parties and which report was
used to cross-examine the defence expert witnesses,
was not called as
a witness by the State.
The defence contends that
the contents of the report are prejudicial to the accused.
Therefore, the accused has a reasonable
apprehension of bias in the
sense that the Court would be subliminally at least prejudiced by the
contents of the report.
Both parties made
extensive submissions for and against my recusal. I had ernest
consideration and come to the conclusion
that this application is
without substantial merit and is accordingly
REFUSED
.
The reasons for that
refusal will be furnished during the course of my judgment when this
case is finalised. I have seen the
report which has now been
handed in by the defence and forms an exhibit in these proceedings.
I am of the view that it is
essential for the just decision of this
case to call this witness. In doing so, I invoke the power
bestowed on this Court
in terms of
section 186
of the
Criminal
Procedure Act.’
[2
]
[4]
The complete record was placed before the Full Court when the appeal
was heard on 23 May 2016.
[5]
Ms Moosa, on behalf of the respondent, submitted that the fact that
the court had sight of the report prepared by the expert
Willows who
was not called by the State to testify is not in itself prejudicial
to the appellant’s case and should not be
regarded as a gross
irregularity that vitiated the proceedings in its entirety. Ms
Moosa, albeit reluctantly, conceded in
argument that the witness
Willows’ evidence was not necessary for the just administration
of the case. The respondent
placed reliance on s 322(1) of the
Act which requires of this court in the instance of any irregularity
to be satisfied that a
failure of justice has resulted from such
irregularity before setting aside any conviction.
[3]
[6]
For purposes of this judgment I intend dealing with the
irregularities first, since a positive finding may be determinative
of the outcome of the appeal. If the appeal fails on the
procedural grounds i.e. the irregularities, then the merits of the
conviction and the sentence imposed will be considered.
[4]
Ad
irregularities
[7]
Before dealing with the irregularities as they presented themselves
in the case it is necessary to consider the consequences
of any
irregularities. It is trite that ‘no conviction or
sentence shall be set aside and altered by reason of any
irregularity
or defect in the record or proceedings, unless it appears to the
court of appeal that a failure of justice has in
fact resulted from
said irregularity or defect’.
[5]
In
S v
Langa
[6]
different classes of irregularities were listed and distinguished the
one from the other. For the sake of completeness I
shall repeat
the different categories since they remain relevant to this case:
‘
In
S v Moodie
,
the
locus classicus
on procedural irregularities, Holmes JA
stated:
“
(1) The general
rule in regard to procedural irregularities is that the court will be
satisfied that there has in fact been a failure
of justice if it
cannot hold that a reasonable trial court would inevitably have
convicted if there had been no irregularity.
(2) In an exceptional
case, where the irregularity consists of such a gross departure from
established rules of procedure that the
accused has not been properly
tried, this is
per se
a failure of justice, and it is
unnecessary to apply the test of enquiring whether a reasonable trial
court would inevitably have
convicted if there has been no
irregularity.
(3) Whether a case falls
within (1) or (2) depends upon the nature and degree of the
irregularity.”
In
defining the concept of “failure of justice” the court
stated as follows:
“
As to the meaning
of “failure of justice”, the Afrikaans text has to be
considered because the 1944 and 1955 Acts were
signed in Afrikaans.
The former uses the word “regskending” and the latter
contains the expression “geregtigheid
nie geskied het nie”.
All these linguistic variants harmonise in meaning when one bears in
mind what was said by De
Wet JA, in
Rex v Rose
1937 AD 467
at
476-7:
“
Now the term
justice is not limited in meaning to the notion of retribution for
the wrongdoer: it also connotes that the wrongdoer
should be fairly
tried in accordance with the principles of law.”
In interpreting the
proviso and seeking a test to apply, this court has decided in a
series of cases that it will be satisfied that
there has in fact been
a failure of justice if it cannot hold that a reasonable trial court
would inevitably have convicted if
there had been no irregularity ….”
Further
at 756E:
“
This is a sound
general test which works well in most cases of irregularity.
But it is not an exclusive test, and the Courts
have more than once
recognised that in an exceptional case an irregularity can be of such
a nature as
per
se
to
amount to a failure of justice, and to be so held, without the
necessity of applying the foregoing test.”’
[7]
(Footnotes
omitted.)
The
classification of irregularities has developed to include an
irregularity that results in an unfair trial. In my view
it is
best to refer to it as a constitutional irregularity or illegality.
In
S v
Jaipal
[8]
Van der Westhuizen J stated it as follows:
‘
Therefore a
failure of justice must indeed have resulted from the irregularity
for the conviction and sentence to be set aside.
In construing when
an irregularity had led to a failure of justice, regard must be had
to the constitutional right of an accused
person to a fair trial.
If an irregularity has resulted in an unfair trial, that will
constitute a failure of justice as
contemplated by the section and
any conviction will have to be set aside. Whether a new trial
may be commenced against the
accused will also require a
constitutional assessment of whether that would be a breach of the
right to a fair trial or not.
The meaning of the concept of a
failure of justice in s 322(1) must therefore now be understood to
raise the question of whether
the irregularity has led to an unfair
trial.’
[9]
The
test for reasonable apprehension of bias
[8]
The recusal application before the court
a quo
was based on
the fact that the presiding Judge should have disqualified herself
from hearing the matter since she was in possession
of evidentiary
material, the Willows Report, in circumstances that established a
reasonable apprehension of bias and that her impartiality
was
compromised by being in possession of evidential material that would
not form part of the evidence before court.
[9]
The Constitutional Court has defined the test of apprehension of bias
in
President
of the Republic of South Africa and Others v South African
Rugby Football Union & others
:
[10]
‘
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.…’
[11]
The
SARFU test was considered and developed in
South
African Commercial Catering and Allied Workers Union & others v
Irvin & Johnson Ltd
[12]
to the point where the Supreme Court of Appeal in
S
v Shackell
[13]
classified the test as one of ‘double reasonableness’.
Brand AJA, as he then was, held:
‘
Not only must the
person apprehending the bias be a reasonable person in the position
of the applicant for recusal, but the apprehension
must also be
reasonable.’
[14]
In
S v Dube
& others
[15]
the court held that where the disqualification is based on a
reasonable apprehension, like in the present matter, the court has
to
make a normative evaluation of the facts to determine whether a
reasonable person faced with the same facts would entertain
the
apprehension. Importantly it was held that a judicial officer
should not only conduct a trial with an open, impartial
and fair mind
but that such conduct must be manifest to all those who are concerned
in the trial and its outcome, especially the
accused.
[16]
It is necessary to evaluate the proceedings before the court
a
quo
in
order to decide whether the appellant had a reasonable apprehension
to believe that the presiding Judge would no longer be impartial.
I shall now turn to the proceedings.
[10]
During the course of the trial a number of experts were called by the
defence. The defence witnesses were confronted
with parts of
the Willows report. Mr Willows is a psychologist who was
requested on behalf of the State to draft a report.
[17]
The prosecutrix stated to the court during her cross-examination of
the defence witness, Ms L Roux:
‘
MS MOOSA
I know what my learned friend is going to say and I am basing
this on what Mr Clive Willows
who will testify on behalf of the
State
will say.
MR SCHELTEMA
So I can conclude, because I’ve got my client’s interests
at heart here, that this statement is not based on
literature, but
based on a report of another psychologist?
PILLAY J
Ja.’
[18]
(My
emphasis.)
There
was therefore no doubt that the State placed reliance on the report
of Willows in its cross-examination and that the State
would call
this witness in support of its contentions.
[11]
The record shows further that the prosecutrix promised that she would
make the report of the witness Willows available to the
court upon
conclusion of her cross-examination of the defence’s expert.
It was however never placed on record how the
report was handed to
the learned trial Judge nor was the report handed in during the
proceedings in court. Counsel for the
defence in his
application for the recusal of the presiding Judge placed the
following on record:
‘
We were not
involved in that process so I can’t comment, but it seems from
the record that by the next morning the Friday
morning, the 20
th
,
M’Lady and her assessors were already in possession of this
report. Whether it was handed to M’Lady in chambers
or
through her registrar I don’t know, but it doesn’t really
matter.
Judge : I don’t
know how it came to me, to be honest.’
[19]
It
is necessary to consider what was said by the prosecutrix when she
opposed the recusal application regarding the report since
it
clarifies how the report came into the possession of the presiding
Judge:
‘
MS MOOSA
M’Lady, it was – throughout the proceedings it was in
fact the intention of the State to call Mr Willows as a
witness.
At the time that Professor Schlebusch and Dr Roux testified it
remained the intention of the State to call Mr Willows
as a witness.
He was in fact in attendance at court on 20 April 2012 which was the
last day on which this matter was heard
prior to yesterday, and that
was confirmed by my learned friend. On the morning of 20 April
2012
a
copy of his report was handed to Your Ladyship’s registrar, and
that was at the request of the Court, and that had been
placed on
record the day before by the Court.
Whether that reached the Assessors or not I am unable to say, my last
contact was with the registrar.’
[20]
(My
emphasis.)
[12]
During the recusal application the learned Judge indicated that the
report was handed to her by her registrar but placed it
on record
that it was never handed to the assessors. Mr Scheltema
submitted that the report ought to have been handed in
as an exhibit
and since it was not before the court as an exhibit, the defence
elected to hand it in so as to demonstrate the prejudicial
effect of
the report on the accused’s case. In determining the
reasonableness of the accused’s apprehension it
is imperative
to consider the content of the report.
[13]
The report of Willows
[21]
constitutes 10 pages and it is not necessary to repeat it in detail.
The introduction and conclusion of the Willows report
will suffice
for purposes of this judgment:
‘
1.
Introduction
The State has charged
Nick Longano (the accused) with the murder of Vinoba Naidoo (the
deceased). Mr Longano has raised the
defence of Non
Pathological Incapacity.
The Prosecutor for the State
requested a professional opinion from the Psychologist regarding the
psychological characteristics
of this particular mental and
behavioural phenomenon.
…
…
…
11.
Application of
Theory to Facts.
In such matters as this
before the court, it is important to evaluate the narrative of the
accused and other witnesses, in the light
of established facts.
A conclusion of a state
of temporary non pathological capacity would depend on the factual
response to a number of crucial questions,
the answers to which this
psychologist does not know at the time of writing.
11.1 The accused has been
separated for 21 days, why would he experience the “rejection”
as so overwhelming on the day
of the incident?
11.2 Was the alleged
attack by the deceased of such violence as to pose a real physical
threat or danger to the accused.
11.3 If the couple were
involved in a conflictual argument, at which point was the threat
perceived to be of such inordinate strength
as to cause a change in
consciousness?
11.4 With the identified
frailties of his personality, is the accused not a person who is
prone to having limited emotional control
when responding to
criticism or perceived threat?
11.5 Was such behavioural
expression a recurring problem within the relationship, or in his
response to other emotional demands?
And if so, did such
behaviour contribute to the decision of the deceased to terminate the
relationship?
11.6 Was the description
of the automotive behaviour suggestive of poor judgment and minimal
control and was it haphazard in nature?
Did it imply sustained
concerted effort or was it random?
11.7 Was the accused able
to recall certain features of the incident in the short term,
immediately after the incident, even if
these cannot be currently
recalled?
11.8
The
possible influence of his medication on his behaviour is not a field
in which I have experience or knowledge. Questions
as to the
possible influence of such medication should be directed toward those
specialised in the field
.
It is presumed that some of the medication was recommended in order
to help him feel “calmer”, and it would
be important to
understand whether or not such medication may induce the opposite
effect.’
[22]
(My
emphasis.)
[14]
On 10 April 2012 the witness Willows was identified as an expert
witness who would testify on behalf of the State. The
defence
witnesses Roux and Schlebush were confronted in cross-examination
with some of the opinions expressed in the Willows report.
The
defence highlighted this fact to the court:
‘
May I furthermore
place on record that before we led the evidence of the two experts
who testified on behalf of the accused, a report
was made available
by the prosecution of a clinical psychologist, one Clive Willows.
This report was dated 2 April 2012 and
faxed to the instructing
attorney in this matter on 10 April 2012 and we were given to
understand that this person would be the
professional to be relied
upon by the prosecution in dealing with the psychological aspects
relevant in this matter. M’Lady,
I can therefore place on
record that thus far we had led the evidence of the two experts in
the face of the information supplied
to us in the form of the report
of Clive Willows and we dealt with the evidence also in the light of
that report. This morning
there was a development in that we
were given a report emanating from Mr Clive Willows which contained
an addendum to the first
report, although essentially it is still the
same report, but in an addendum Mr Willows deals with certain
pertinent questions
which appear to be relevant, in his view, in the
application of theory to the facts. Now we have not really
considered those
questions. Some of them we could have in part,
but there was no proper evaluation of those questions one by one when
we dealt
with our experts.’
[23]
[15]
The defence in its application made it clear that the conduct of the
learned Judge was not criticised but rather the conduct
of the
State.
[24]
What is
evident from the record is that on the day that the report found its
way to the presiding Judge, the State still
intended calling Willows
as a witness. The State has made it abundantly clear to the
defence that whatever report is compiled
on behalf of the State
contains information important to the State’s case. That
much was stated by Ms Moosa on 20 April
2012, when she said:
‘
I do not undertake
to give him any information beyond that and I say that because that
report ought to – if the State intends
calling this witness,
that
report will contain the information which the State intends to elicit
from that witness
.
It should therefore, from that report, be evident what issues are in
dispute and what aren’t or where that professional
differs from
the evidence that has already been led by the defence experts.
I don’t see the need to provide the defence
with an affidavit
in which I set out the various areas of dispute.’
[25]
(My
emphasis.)
[16]
The recusal application was triggered by the State’s decision
not to call Willows to testify. On 3 September 2012
the
prosecutrix placed on record that the State intended calling Dr Dunn
and not Mr Willows. At this stage of the proceedings
the
presiding Judge had been in possession of Mr Willows’ report
for a period of four months. The defence was of the
view that
the Willows report was prejudicial to the case of the accused and
that it was not neutral, this fact was acknowledged
by the presiding
Judge. The defence submitted that the report raised pertinent
questions in relation to the conduct of the
appellant which appeared
to be aimed at influencing the court.
[17]
The presiding Judge was also acutely aware that there could be a
perception that she could have discussed the report with her
assessors. The following interchange between the court and
counsel bears testimony to this fact:
‘
MR SCHELTEMA
About what is a reasonable perception. Now maybe the other
thing is a person in the shoes of the accused may very well
have a
perception that the contents of this report was discussed, because
there may be a perception that there was no reason as
to why not to
discuss it.
PILLAY J
The
perception has to be reasonable, Mr Scheltema.
MR SCHELTEMA
It’s based on the perception that the prosecutor informed …
[intervention]
PILLAY J
Otherwise we’ll have a situation where any perception will have
to lead to a recusal. Perception has to be reasonable.
MR SCHELTEMA
Reasonable.
PILLAY J
And
you say it’s a value judgment or a value question.
MR SCHELTEMA
M’Lady, the accused may have a perception based on what the
prosecutor said, namely that she will hand … [intervention]
PILLAY J
Yes.
MR SCHELTEMA
… this report to the Court. To the Court.
And
he may have a perception that there is simply no reason as to why not
to discuss this report at least in the light of the evidence
given,
because the evidence needs to be discussed. The
cross-examination of Roux needs to be discussed
.
PILLAY J I
accept that
.’
[26]
(My
emphasis.)
[18]
That Willows was not a neutral witness is apparent from an evaluation
of his report and the conclusions reached by him in the
report.
The trial court relied on the evidence of Willows when it made
certain adverse findings against the defence witnesses
Roux and
Schlebusch. The court held:
‘
Willows conceded
that determining the level of consciousness involves a very intricate
and complex process. However, Willows
was concerned that Roux
and Schlebusch’s conclusions on the accused’s level of
functioning was done without important
collateral information.
In fact he stated that Roux’s description of the accused’s
personality did not give him
a consistent picture. He gave
examples where in relation to interpersonal functioning she states
that the accused presents
as shy and withdrawn. Then in another
instance she says he conforms socially. Willows pointed out
various other aspects
which tend to contradict her findings.’
[27]
Later
in the judgment the court measures the conduct of another defence
witness Dr Howlett against the conduct proposed by Mr Willows.
[28]
[19]
The conduct complained of is not that there was actual bias on the
side of the presiding Judge or that such bias was established.
The issue is whether the appellant reasonably believed at the time of
the recusal application that the Judge would no longer bring
an
impartial mind to the matter after having considered the content of a
report that was aimed at supporting the State’s
case against
him. The appellant is furthermore entitled to be informed of
the Judge’s reasoning and her consideration
of the law and its
application to the facts when the recusal application was decided.
The failure to provide such reasons
for the specific order is
irregular given the earlier ruling of the court that it would be
provided. Had the Judge given
reasons for her dismissal of the
application then the appellant would have been informed of the
court’s conclusion and the
reasons why it reached the
conclusion it did, given the said circumstances.
[20]
In my view the integrity of the trial court was compromised when the
State submitted evidentiary material to the Judge which
should not
have been given to her if the witness was not going to testify.
It cannot be disregarded that the presiding Judge
was aware of
information favouring the State’s case. The Willows
report was not a neutral piece of evidence.
Even if it had been
neutral, it was improper to hand a document to the presiding Judge
without calling the witness. Once
the information was given to
the Judge there had to be an apprehension that the court would not be
able to disabuse its mind from
the report. In an adversarial
process the perception was created that the State had an advantage
since it shared a document
with the Judge that is favourable to its
case.
[21]
R v
Matsego & others
[29]
the court dealt with the fairness of the trial in circumstances where
information was divulged to the assessor. Centlivres
CJ held:
‘
In my opinion the
learned Judge should not after reading the affidavit of the assessor
concerned, have proceeded with the trial
…. It is
essential in the interests of the proper administration of justice
that an assessor should retire from the
case as soon as it is proved
that he has been given information detrimental to the accused which
has not been proved in evidence,
for nothing should be done which
creates even a suspicion that there has not been a fair trial.’
[30]
In
my view once the court’s impartiality was compromised, how
unfortunate it might have been, it is the end of the enquiry
as to
the apprehension of bias. Impartiality serves to protect the
integrity of our judicial system and should never be compromised.
What complicates this matter is that the trial Judge believed that
the witness Willows’ testimony was essential to the case.
The calling of this witness caused a procedural conundrum.
[22]
I shall now turn to the court’s conduct in invoking s 186 of
the Act during the trial.
The
calling by the trial court of the witness Willows
[23]
The court on 5 September 2012 exercised its discretion to call the
witness Willows in terms of s 186 of the Act.
Section
186 of the Act provides as follows:
‘
Court may
subpoena witness
The court may at any
stage of criminal proceedings subpoena or cause to be subpoenaed any
person as a witness at such proceedings,
and the court shall so
subpoena a witness or so cause a witness to be subpoenaed
if the
evidence of such witness appears to the court essential to the just
decision of the case
.’
(My
emphasis.)
[24]
The trial Judge’s calling of the witness Willows must therefore
be assessed against the backdrop that the report of this
witness was
in her possession for a lengthy period and that the report formed
part of the evidential material that the State intended
to place
before the court. The court
a quo
gave the following reason
for invoking section 186 of the Act:
‘
I have seen the
report which has now been handed in by the defence and forms an
exhibit in these proceedings. I am of the
view that it is
essential for the just decision of this case to call this witness.
In doing so I invoke the power bestowed
on this Court in terms of
section 186
of the
Criminal Procedure Act.’
[31
]
The
court also relied on the dictum of
R
v Hepworth
[32]
which effectively dealt with a judicial officer’s duty to
administer justice. The decision however to call Mr Willows
was
exercised immediately after the court dismissed the recusal
application that was based on the fact that the Judge had sight
and
knowledge of a report that should not have been in her possession if
the State was not calling the specific witness.
It has been
argued before us that the trial Judge simply had no other reason for
calling Willows other than to avoid the dilemma
of having to recuse
herself. The trial Judge did not give reasons as to why the
evidence of Willows was essential or necessary.
Whether he was
essential has to be decided on the cold record.
[25]
In
S v
Gabaatlholwe & another
[33]
the court interpreted what ‘essential to the just decision of
the case’ means and held:
‘…
the
Court, upon an assessment of the evidence before it, considers that
unless it hears a particular witness it is bound to conclude
that
justice will not be done in the end result. That does not mean
that a conviction or acquittal (as the case may be) will
not follow
but rather that such conviction or acquittal as will follow will have
been arrived at without reliance on available
evidence that would
probably (not possibly) affect the result and there is no explanation
before the court which justifies the
failure to call that witness.
If the statement of the proposed witness is not unequivocal or is
non-specific in relation
to relevant issues it is difficult to
justify the witness as essential rather than of potential value.’
[34]
[26]
The assessment of whether evidence is essential is primarily left to
the presiding Judge and courts of appeal will only interfere
with the
Judge’s exercise of discretion on very limited grounds.
[35]
Importantly a court of appeal would give consideration to the reasons
of exercising a discretion and whether those reasons
are
substantial. In
R
v Joannou
[36]
the court relied on
Evans
v Bartlam
[37]
and Lord Wright’s approval of English authorities that a
discretion ‘must be exercised according to common sense and
according to justice and if there is a miscarriage in the exercise of
it, it will be reversed’. The principle in my
view would
be that a court of appeal would be entitled to interfere with a
discretion wrongly exercised, if it resulted in a miscarriage
of
justice.
[27]
In
S v
Gerbers
[38]
the court issued a word of caution to presiding officers exercising
judicial discretion and it is necessary to repeat it especially
since
the trial court placed reliance on Hepworth’s case:
‘
There is obviously
potential tension between the need to fulfil the role of a judicial
officer as described in Hepworth’s
case
supra
and the need to avoid conduct of the kind which led to the
characterising of the judicial officer’s behaviour in cases
such
as
S
v Rall
1982 (1) SA 828
(A) as irregular and resulting in a failure of
justice. Nonetheless, it remains incumbent upon all judicial
officers to constantly
bear in mind that their
bona
fide
efforts to do justice may be misconstrued by one or other of the
parties as undue partisanship and that difficult as it may sometimes
be to find the right balance between undue judicial passivism and
undue judicial intervention, they must ever strive to do so.’
[39]
[28]
In my view it is not necessary to address the ground that the State
was permitted to cross-examine Willows in detail since
it is without
merit. Once the witness was called by the court, he was
regarded as the court’s witness and both parties,
State and
defence, had a right to cross-examine him. I believe the
criticisms levelled against the court’s decision
to permit such
cross-examination must be rejected. Section 166(2) of the Act
regulates the procedure that both parties may
cross-examine a witness
that is called by the court. It gives recognition to the
broader concept of a fair trial and in my
view there is nothing on
record that supports the appellant’s contention that the court
did not exercise its discretion judicially.
Both parties were
equally granted leave to cross-examine.
[29]
Lastly, reasons for a decision are vitally important to any
litigant. Without reasons a litigant is deprived of the
knowledge of how conclusions were reached. Undoubtedly in this
matter where the accused had a reasonable apprehension that
the
presiding Judge was likely influenced by a report that she had in her
possession, the reasons became vitally important to him.
This
court is in the invidious position to evaluate the conduct of the
presiding Judge without giving consideration to the reasons
that
swayed her to the finding of not disqualifying herself.
Moreover the court exercised its decision to call Willows, shortly
after the recusal application was launched without substantiating the
importance of Willows’ testimony. Given the defence
of
non-pathological incapacity and Willows’ reservation of giving
an opinion on the possible influence of the medication
used by the
appellant, it is impossible to determine why the court considered him
as an important witness. The respondent
conceded that Willows’
evidence was not necessary.
[30]
The irregularities of the presiding Judge not to recuse herself, to
call a witness not essential for the just decision of the
case, and
to not give reasons for any of the rulings, cumulatively in my view
constitute gross irregularities that resulted in
a failure in
justice. It vitiated the proceedings to the extent that the
conviction and sentence need to be set aside without
reference to the
merits of the case.
[31]
Accordingly the appeal succeeds and the conviction and sentence are
set aside. It remains the prerogative of the prosecuting
authority to decide whether or not the accused will be recharged.
………………………………
.
STEYN
J
………………………………
.
MOODLEY
J
………………………………
.
BEZUIDENHOUT
J
Appeal
heard on :
23 May 2016
Counsel
for the Appellant :
Mr GP Scheltema SC
Instructed
by :
Larson Falconer Hassan Parsee Attorneys
Counsel
for the State :
Ms N Moosa
Instructed
by :
The Director of Public Prosecutions
Judgment
handed down on :
25 October 2016
[1]
See Vol II at 1019.
[2]
See Supplementary Vol II at 1018L to 1018M.
[3]
Section 322(1) of the Act provides as follows:
‘
(1) In the
case of an appeal against a conviction or of any question of law
reserved, the court of appeal may –
(a) allow
the appeal if it thinks that the judgment of the trial court should
be set aside on the ground of a wrong
decision of any question of
law or that on any ground there was a failure of justice; or
(b) give
such judgment as ought to have been given at the trial or impose
such punishment as ought to have been imposed
at the trial; or
(c) make
such other order as justice may require:
Provided that,
notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the
accused, no
conviction or sentence shall be set aside or altered by reason of
any irregularity or defect in the record or proceedings,
unless it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.’
[4]
Cf
S v
Moodie
1961 (4) SA 752
(A) at 760G-H.
[5]
See s 322 (1)(c) of the Act.
[6]
2010 (2) SACR 289 (KZP).
[7]
See
S v
Langa
at 295c-296b. Also see
S
v Naidoo
1962 (4) SA 348
(A) at 354D-F:
‘
But
irregularities vary in nature and degree. Broadly speaking
they fall into two categories. There are irregularities
(fortunately rare) which are of so gross a nature as
per se
to vitiate the trial. In such a case the Court of Appeal sets
aside the conviction without reference to the merits.
There
remains thus neither a conviction nor an acquittal on the merits and
the accused can be re-tried in terms of sec. 370 (c)
of the Criminal
Code. That was the position in
Moodie’s
case, in
which the irregularity of the deputy sheriff remaining closeted with
the jury throughout their two hour deliberation
was regarded as so
gross as to vitiate the whole trial.
On the other hand there
are irregularities of a lesser nature (and happily even these are
not frequent) in which the Court of
Appeal is able to separate the
bad from the good, and to consider the merits of the case, including
any findings as to the credibility
of witnesses.’
[8]
2005 (4) SA 581 (CC).
[9]
Ibid
at 596F-597B.
[10]
1999 (4) SA 147 (CC).
[11]
Ibid
at 177B-E.
[12]
2000 (3) SA 705 (CC).
[13]
2001 (4) SA 1 (SCA).
[14]
Ibid
para 20.
[15]
2009 (2) SACR 99 (SCA).
[16]
Ibid
para
7.
[17]
See
infra
para 13 for details of the report.
[18]
See Vol 8 at 798 lines 17 to 22.
[19]
See Vol 10 at 952 lines 9 to 19.
[20]
See Vol 10 at 988 lines 16 to 25.
[21]
See exhibit “Y” of the record for the entire report.
[22]
See pages 1590 and 1598-1599.
[23]
See Vol 8 at 815 line 16 to 816 line 8.
[24]
See Vol 10 at 938 lines 20 to 24.
[25]
See Vol 8 at 819 lines 2 to 10.
[26]
Vol 10 at 971 lines 1 to 19.
[27]
See Vol 18 at 1727 lines 20 to 25 to 1728 lines 1 to 3.
[28]
See record Vol 18 at 1741 lines 1 to 5.
[29]
1956 (3) SA 411
(A) at 417H-418A. The court placed reliance on
R v
Mabaso
1952 (3) SA 521
(A) at 525F-G.
[30]
Ibid
at
418A-B.
[31]
See record at 1018 M lines 8 to 12.
[32]
1928 AD 265.
[33]
2003 (1) SACR 313
(SCA).
[34]
Ibid
para 6.
[35]
Ibid
para
8. Also see
R
v Zackey
1945 AD 505
at 510;
S
v Seheri en Andere
1964 (1) SA 29
(A) at 33 and
S
v B and Another
1980 (2) SA 946
(A) at 953A-F.
[36]
1957 (4) SA 385
(FSC) at 386E.
[37]
1937 AC 473.
[38]
1997 (2) SACR 601 (SCA).
[39]
Ibid
at 607b-c.