About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 208
|
|
Ledwaba v Mudau N.O. and Others (A834/2014) [2015] ZAGPPHC 208 (4 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
Case Number:
A834/2014
Date: 4 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
MALALA GEOPHREY
LEDWABA
........................................................................................
APPLICANT
And
THE REGIONAL
MAGISTRATE,
MR T. P. MUDAU
N.O.
….........................................................................................
FIRST
RESPONDENT
THE MINISTER OF
JUSTICE AND
CONSTITUTIONAL
AFFAIRS
...........................................................................
SECOND
RESPONDENT
THE DIRECTOR OF
PUBLIC PROSECUTIONS,
GAUTENG NORTH
(PRETORIA)
.........................................................................
THIRD
RESPONDENT
JUDGMENT
Fabricius J,
1
.
The Applicant is an
accused in a Criminal case and was convicted by the First Respondent,
as Regional Magistrate, of two counts
fraud and four counts of theft.
The Applicant was prosecuted in October 2006.
2
.
Having
previously been postponed, the case served again before the First
Respondent on 1 August 2014. A postponement to 21 August
was asked
for, and during these proceedings the Applicant informed the First
Respondent of a complaint that he had lodged with
the Magistrates’
Commission. The case was postponed to 21 August and the First
Respondent then informed the Applicant that
he intended to revisit
the extension of bail previously granted by him on a certain
supposition, essentially being that the Applicant,
as an admitted
Advocate, had to finalize certain briefs. Bail was cancelled on that
day, and after an urgent application before
Baqwa J the bail was
re-instated. The learned Judge found that the First Respondent had
not exercised his discretion judiciously.
The record shows that the
First Respondent had made an error in the context of the provisions
of
S. 168
of the
Criminal Procedure Act 51 of
1977
as
amended. The record and the judgment do certainly not indicate that
the learned Judge had been of the view that the First Respondent
had
acted capriciously, although Applicant relied in his Heads of
Argument on that factor.
3.
On 30 September 2014
Applicant brought an application that First Respondent recuse himself
from the proceedings on the grounds that
he was biased and that he
would not receive a fair trial during the sentencing process which
still has to take place. This application
was refused, and the review
of such refusal is now before us.
4.
The First and Second
Respondents did not oppose the application but filed a notice to
abide. First Respondent had however provided
written reasons dated 30
September 2014 for refusing the application for his recusal. He dealt
with certain authorities in this
context, and denied that he had been
motivated by any extraneous consideration when cancelling the bail.
He already knew about
the Applicant’s complaint about him to
the Magistrates' Commission on 1 August 2014, and if he had been
motivated by any
injudicious consideration he could have cancelled
the bail then. The complaint against him was in any event without
merit, and
it is common cause that the Magistrates’ Commission
did not deem it fit to deal with it. His conclusion was that the
Applicant
had been a dishonest witness, and that in any event it was
not in the interest of justice that he grants the recusal
application.
In this context he said the following: “The
application for my recusal is a product of a desperate and relentless
effort
by the accused in avoiding the just conclusion of this matter
which is clearly contrived. Not only is it without foundation but
it
is unreasonable. The fact that I have made credibility findings in
this matter against the accused does not qualify me from
concluding
this matter. Neither does the fact that I cancelled his bail in the
course of my judicial function justify an inference
that I am hostile
towards him.”
5.
I may just add that
Applicant was struck off the roll of Advocates by this Court on
grounds of gross misconduct and of not being
a fit and proper person
to remain on such roll.
6
.
Third Respondent
opposed the application and also filed Heads of Argument. In them
reference was made to a number of well-known
authorities, which deal
with the topic at hand which emphasize the following relevant
considerations:
6.1
In considering an
application for recusal the Court as a starting point presumes that
judicial officers were impartial in adjudicating
disputes;
6.2
An applicant for
recusal must bear the onus of rebutting the presumption of judicial
impartiality;
6.3
The presumption was
not easily dislodged and required “cogent” or
“convincing” evidence to be rebutted;
6.4
Not only must a
person apprehending bias be a reasonable person, but the apprehension
itself must in the circumstances be reasonable.
See:
South African Commercial Catering and Allied
Workers Union and Others
i's
Irvin and Johnson Ltd (Sea Foods division: Fish
processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC) at 713 to 715.
6.5
It is clear that
mere apprehensiveness on the part of a litigant that a Judge or
judicial officer would be biased - even a strongly
and honestly felt
anxiety - is not good enough. The Court has to scrutinize carefully
the apprehension to determine whether it
was to be regarded as
reasonable.
See
also: S
vs Basson
2007 (1) SACR 566
(CC) at par.
42.
7.
Applicant
had previously also brought a review application, after conviction,
but before sentence in terms of provisions of Rule
53 of the Uniform
Rules of this Court. This application was dismissed by Preller J and
Bam J on 22 July 201
k.
One
of the grounds of review relied upon was that the First Respondent
had discussed the criminal matter with a third party. It
appears from
the judgment of this Bench, that these allegations were without
foundation. I mention this to indicate that in my
view the Applicant
is not a “reasonable person" in the present context of the
debate before us. The First Respondent,
during the sentencing
proceedings will have to apply the usual principles that are relevant
when a sentence is imposed, as well
as the relevant legislation
applying to minimum sentences. Contrary to what Mr Geach SC on behalf
of Applicant argued, there is
in my view no factual basis or
reasonable basis for holding that the First Respondent will not act
impartially. Contrary to what
Applicant alleged in these proceedings,
no Court has found that the First Respondent acted “capriciously”.
The fact
that he erroneously, having regard to the relevant
legislation, withdrew the bail of Applicant, is in my view not a
sufficient
indication that he will not act impartially or be seen to
act impartially, or perceived to act impartially during the
sentencing
proceedings which will obviously be open to scrutiny and,
subject to an application for leave to appeal if Applicant is so
advised.
8
.
It is also in the
interest of justice that cases be finalised. It is not only the
interest of the Applicant that must be considered
but the interest of
the administration of justice and the interest of the public at
large.
9.
Having regard to all
of the above-mentioned consideration I am of the view that there is
no merit in the application before us and
accordingly it is dismissed
with costs.
JUDGE H.J
FABRICIUS
JUDGE OF THE HIGH
COURT GAUTENG DIVISION PRETORIA
I agree
JUDGE W. HUGHES
JUDGE OF THE HIGH
COURT GAUTENG DIVISION PRETORIA