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[2016] ZAGPPHC 360
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Byamo v S (A423/2015) [2016] ZAGPPHC 360 (20 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: A423/2015
DATE:
20 MAY 2016
In the matter
between:
FIDEL
BYAMO
.........................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGEMENT
DE VOS J:
[1] This is an
appeal against the conviction and sentence imposed on the appellant,
Fidel Byamo, by Preller J on the 4th June 2012
in the Circuit Local
Division of the Eastern Circuit District sitting at Secunda. The
appellant (cited as accused 5) originally
appeared with five other
accused before Preller J under Criminal Case No. 162/2012. Before
accused 6 was requested to plead, the
charges against him were
withdrawn. On the very same day they appeared before court, accused 1
(Johan Madoda Makhubu) and accused
2 (Allen Nkabinde) indicated to
the court through their respective counsels that they intended to
plead guilty to counts 1 and
2. Both accused 1 and 2 subsequently
pleaded guilty and both submitted plea explanations. In both these
statements the roles played
by the remaining accused were outlined.
[2] Subsequent
thereto, counsels for accused 3, 4 and 5 were invited to make oral
submission as to why the Judge a quo should not
proceed de novo with
a new trial against accused 3, 4 and 5 (the appellant) after
separation of the trial and after disposal of
the case against
accused 1 and 2.
[3] Before these
arguments were heard the Judge a quo indicated that in his opinion
there is nothing that prohibits him from disposing
of the trial of
accused 1 and 2 where guilty pleas were tendered and thereafter to
preside in a new trial against accused 3, 4
and 5. On p27 of the
appeal record he remarks:
"Yes, well we
can, if that is possible, we shall do it, but let me assure counsel
and everybody involved in the case, also
the accused and members of
the public, the family of the deceased that I shall do whatever I can
to proceed with this case as speedily
as possible and have it
disposed of”.
This remark was made
immediately after Adv Fourie, the State prosecutor, informed the
Judge a quo that in the event of a guilty
plea by accused 1 and 2
there will be an application by the remaining accused that the matter
against them does not proceed before
the same Judge.
[4] Both accused 1
and 2 then pleaded guilty on counts 1 and 2 and not guilty to counts
3 to 8. The pleas tendered by accused 1
and 2 were accepted by the
prosecutor. Accused 3, 4 and 5 (the appellant) then pleaded not
guilty. Adv Fourie informed the Court
a quo that accused 1 and 2
prepared written plea explanations in terms of s 112 of the Criminal
Procedure Act and that if the court
is satisfied that their plea
explanations indeed amounted to pleas of guilty, the State will
accept their pleas and ask for a separation
of trials. The plea
explanations of both accused 1 and 2 were accepted and read into the
record. In accused l’s plea explanation,
Exhibit A, he
identified both accused 3 and accused 5 (the appellant) and described
the roles they played in the commission of
the crime. Similarly,
accused 2 identified accused 3 in his plea explanation and described
which actions were taken by accused.
3.
[5] The prosecutor
requested that accused 1 and 2 be convicted and applied for a
separation of trials. Before proceeding with the
matter the Judge a
quo recorded that he had a lengthy discussion with counsel in his
chambers and that it is important, in his
view, to dispose of the
case against all five accused as soon as possible, particularly in
view thereof that the accused had been
in custody since February
2010. The Judge a quo also mentioned that it is important to dispose
of the case at that time and not
to postpone the trial until November
2012. He then gave a lengthy explanation as to why he thinks he can
proceed with the trial
against accused 3, 4 and 5 and need not recuse
himself. The presiding judge then gave the prosecutor as well as the
defence counsels
an opportunity to indicate whether they have any
objection as to why this course of action should not be followed. Adv
Fourie supported
this suggestion made by the Judge a quo whereas all
three the defence counsels, appearing for accused 3, 4, and 5
respectively,
raised their objections and requested the Judge a quo
to recuse himself from the envisaged new trial against accused 3, 4
and 5.
[6] Immediately
after Adv More, who appeared on behalf of accused 3, raised her
objection the Judge a quo further placed on record
that he also
informed counsel in his chambers that while he was having coffee in a
shop nearby, he was approached by Mrs Venter
(snr), who is 82 years
old, and was told by her that this case has been dragging on and she
wishes it to be finalised now. The
Judge a quo concluded that this
"... is one of the factors that I take into account when I
formed the view that it is desirable
that this case be finished”.
[7] Counsel for both
accused 4 and 5 then addressed the Court a quo and submitted that
after separation of the trial, the case against
accused 3, 4 and 5
should be postponed as they are
of the opinion that
the information contained in the plea explanations of accused 1 and 2
are sufficient to create the reasonable
belief that there is
perceived prejudice present if the same Judge should hear the case
against them. Adv Malanguti (on behalf
of accused 5) also informed
the Judge a quo that it was his opinion that accused 3, 4 and 5 will
be prepared to accept a further
postponement until the case against
them can proceed before another Judge. Notwithstanding Adv
Malanguti’s attempts to persuade
the Judge a quo to recuse
himself, the presiding judge eventually decided that he will proceed
with the case against accused 3,
4 and 5 immediately after finalising
the case against accused 1 and 2. The matter then proceeded and after
separation was ordered,
accused 1 and 2 were convicted and sentenced.
During this process several exhibits were handed in, including
Exhibit E, a photo
album of the scene.
[8] The only point
on appeal is whether the Judge a quo should have recused himself. I
am not going to deal with the merits of the
arguments raised by the
Judge, the prosecutor and the defence counsel at this stage, save to
state that these arguments should
have been heard after separation
has taken place and should have been dealt with when the new
indictment was put to accused 3,
4 and 5 in a separate trial.
Furthermore, and without binding another Court, the overwhelming
impression I gained from reading
the record is that the Judge a quo
wanted to finalise the matter against all five accused within the
shortest possible period of
time. I say this especially against the
backdrop as set out in the record. During defence counsels’
argument, the Judge a
quo repeatedly informed the parties that he
will give them leave to appeal against his ruling not to recuse
himself. This so-called
"leave to be granted” became
non-sensible as leave to appeal would only become relevant after
separation of the trial
and after hearing all the relevant evidence.
[9] Accused 3, 4 and
5 (renumbered accused 1, 2 and 3 for purposes of the new trial) then
appeared before the same Judge as appears
from p74 of the record.
They were eventually convicted and sentenced. The first part of the
evidence was not transcribed. From
what is contained in the record it
is impossible to determine whether a new indictment was prepared and
properly signed by the
authorised official. It is also unknown if
there was a further application for a recusal. The incomplete record
further leaves
this Court completely in the dark as to what the
accused pleaded and what admissions were made. The transcription
starts off with
Ms More’s cross-examination of Mr Makhubu, who
was accused 1 in the first trial. It is impossible to determine the
credibility
of this witness without a proper record. Bearing in mind
that this witness identified and explained the roles played by
accused
1 (formerly accused 3) and accused 3 (formerly accused 5) in
his plea explanation in the first trial, the relevance of a complete
record becomes clear.
[10] Leave to appeal
against their conviction and sentence was granted to accused 1, 2 and
3. This was done before the Judge a quo
made a final decision
regarding the recusal application and even before any evidence was
lead against the appellant and accused
1 and 2. At this stage of the
proceedings only the appellant (accused 3) is before this Court. Adv
Fourie, on behalf of the State,
submits that the appeal must be
postponed to a date to be arranged by the Registrar and that the
Legal Aid Board be requested to
obtain instructions from accused 1
and 2 to proceed with their appeal in order to dispose of the appeal
against all three the accused
simultaneously. This suggestion cannot
be faulted.
I therefore propose
that the following order be made:
1. The appeal is
postponed sine die for a date to be arranged by the Registrar.
2. The matter may be
re-enrolled if and when a complete record is obtained and filed.
3. The Legal Aid
Board is requested to obtain instructions from Nzeyimana Djuma
(accused 1) and
Morisho Minani (accused 2) to proceed with their appeal against their
conviction and sentences imposed without delay
and thereafter to
proceed with their appeal in terms of the Court
DE VOS J
JUDGE OF THE
GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA
I agree.
BAM AJ
ACTING JUDGE OF
THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA
I agree and it is
so ordered.
(MNGQIBISA-THUSI
J
JUDGE OF THE
GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA