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[2015] ZAKZPHC 11
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Hewitt v Regional Magistrate and Another (AR111/2012) [2015] ZAKZPHC 11; [2015] 3 All SA 183 (KZP) (19 February 2015)

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IN
THE HIGH COURT OF SOUTH AFRICA, KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO: AR 111/2012
STEWART
GRAHAM
HEWITT
.............................................................................
APPLICANT
and
THE
REGIONAL
MAGISTRATE
...........................................................
FIRST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
.............................
SECOND
RESPONDENT
NW
..........................................................................................................
INTERESTED
PARTY
REVIEW
JUDGMENT
SISHI
J
Introduction
[1]
This is a review application wherein the applicant seeks an order
that the criminal proceedings held in K Regional Court, Durban
under
Case No. 41/806/10 be reviewed and set aside.
[2]
The applicant herein is an accused person in the criminal proceedings
in K Regional Court, Durban under Case No. 41/806/10 (the
criminal
proceedings).
[3]
The proceedings in the Regional Court were presided over by the
Regional Magistrate, Miss D J Turner, the first respondent herein.
[4]
The charges preferred against the applicant were those of indecent
assault, and the criminal proceedings commenced on the 26
th
of October 2010.  The applicant was on the 1
st
of December 2010 convicted on the said charges.
[5]
On the 25
th
of November 2011, the applicant was sentenced to fifteen years
imprisonment by the first respondent.
[6]
The decision sought to be reviewed and set aside is that of the first
respondent.
[7]
The review application is on Notice of Motion in terms of Rule 53 of
the rules of this Court supported by an affidavit deposed
to by the
applicant and other supporting affidavits.  The first
respondent, whose decision is sought to be reviewed and set
aside,
has not filed any answering affidavit to respond to the allegations
set out in the foundation affidavit.
[8]
This review application has been set down together with an appeal
under Case No. AR 176/12 involving the same parties.
[9]
We were of the view that it would be appropriate and convenient to
first deal with the review application and, if necessary,
the appeal
to be dealt with at a later stage.
Background
to Review Application
[10]
The background leading to this review application is central to the
decision of the review application.
[11]
The allegations made by the applicant in this review application are
against the first respondent only.  The second respondent
filed
only the notice of intention to oppose the matter but no affidavits
were filed by both respondents.  NW (N[…]
W[…]),
the complainant in the criminal case who was admitted as an
interested party in both proceedings, also did not file
any opposing
affidavits, save for submissions referred to in the Court Order
referred to below.  The irregularities complained
of in this
review are alleged to have occurred before and after conviction of
applicant.
[12]
The applicant was charged with indecently assaulting the complainant
on diverse occasions during the period 2000 to 2003/4.
In
particular, he was charged with inserting his finger into her vagina,
touching her vagina, touching her breast, forcing or telling
her to
touch his penis and inserting his penis into her mouth.  These
incidents are alleged to have occurred from the time
when the
complainant was eight years old until she reached the age of eleven
years.
[13]
When the trial commenced on the 26
th
of July 2010, the
State made an application for the appointment of an intermediary to
assist the complainant in her testimony.
[14]
The complainant was eighteen years old at that time, and was a
learner attending high school.
[15]
Counsel for the applicant did not object to the prosecution’s
application for the complainant to testify by means of
an
intermediary.
[16]
The Magistrate granted the application and the applicant testified by
means of an intermediary.
The
SCA in this regard has said:
“
The
failure by the accused or his legal representative to object to what
was patently an irregular procedure, can never turn such
an irregular
act into a lawful or regular one”
[1]
[17]
The complainant’s evidence at the trial was the only direct
evidence against the applicant.  The applicant was convicted
on
the 1
st
of December 2010.  The conviction of the applicant was
essentially based on the evidence of the complainant who testified

through an intermediary appointed by the first respondent in terms of
Section 170(A) of Act 51 1977 (“the Act”).
[18]
After conviction and before the sentencing process, the applicant
terminated the services of his erstwhile legal team and appointed
a
new legal team.
[19]
On the 11
th
of April 2011, the applicant’s new legal team informed the
first respondent that the transcript of the proceedings reflect
that
gross irregularity had resulted from the fact that the complainant
testified through an intermediary despite the fact that
she was older
than eighteen years at that time when the intermediary was appointed.
[20]
It was further argued that this gross irregularity in all probability
vitiated the entire criminal proceedings against the
applicant.
[21]
The first respondent acknowledged that Section 170(A) of the Act did
not give her the discretion to allow a witness over the
age of
eighteen years to testify through an intermediary and she
consequently referred the matter to the KwaZulu-Natal High Court

Durban for a special review in terms of Section 304(1) of the Act. On
the 2
nd
of June 2011, Mr Justice Swain issued an order directing that the
Legal Resources Centre be granted leave to file submissions on
behalf
of the complainant and that the parties should pay special regard to
whether the evidence of the complainant was regarded
inadmissible by
the irregularity.
[22]
Thereafter, Madam Justice D Pillay became ceased with the matter and
issued a directive on the 1
st
of August 2011, seeking submissions on the constitutionality of
Section 170 A (1) of the Act, and whether the restriction on the

provision of the intermediary to a person under the age of eighteen,
in this section, amounted to a rational limitation on the
rights of a
child complainant who testified when she has become an adult.
Submissions were accordingly made on behalf of
the parties.
[23]
On the 5
th
September 2011, Madam Justice D Pillay issued a certificate stating
that she was satisfied that the proceedings were in accordance
with
justice.
[24]
On 16 September 2011, the applicant filed an Application for Leave to
Appeal against the decision of Madam Justice D Pillay.
[25]
On the 26
th
September 2011, the first respondent sent an e-mail to the review
court, urging that court to finalise the applicant’s
Application
for Leave to Appeal speedily and urgently as the
complainant deserved closure.  This was, according to the
applicant, done
without the knowledge of the applicant at that time.
It was later argued on behalf of the applicant that the first
respondent’s
letter created the reasonable perception that the
first respondent was anxious to proceed with the sentence procedure
at all costs
by simply ignoring the applicant’s right to Appeal
to the Supreme Court of Appeal.
[26]
The applicant’s Application for Leave to Appeal to the SCA was
held on the 27
th
of October 2011 before the Review Court.
[27]
At this hearing the complainant, who was represented by the Legal
Resources Centre, was granted leave to be joined as a party
in the
application for Leave to Appeal.
[28]
The Tshawaranang Legal Advocacy Centre to End Violence Against Women,
was also granted leave to intervene in the proceedings
as
amicus
curae.
At this hearing, Madam Justice D
Pillay, granted the applicant leave to appeal her decision to the
Supreme Court of Appeal, but
ordered that the Application for Leave
to Appeal be suspended pending the finalisation of the sentencing
proceedings in the Magistrate’s
Court, including any appeal
from the decisions of that court.
[29]
The applicant felt severely prejudiced by the Review Court’s
order and launched an application for Leave to Appeal to
the Supreme
Court of Appeal on the 21
st
of November 2011.
[30]
In view of the review court’s order, the applicant was
constrained to appear before the first respondent on the 25
th
of November 2011, for the sentence procedure.  By that time, the
applicant had serious doubt as to whether the first respondent
would
afford him a fair trial.
[31]
On the 25
th
of November 2011, the first respondent refused an application made on
behalf of the applicant for a postponement of the sentence

proceedings pending the outcome of his Application for Leave to
Appeal to the Supreme Court of Appeal.
[32]
The applicant alleges that the proceedings before the first
respondent on 25
th
November 2011 were tainted by several gross irregularities which
vitiated the proceedings.  She denied the applicant legal

representation during the sentencing process.  He was thereafter
sentenced to fifteen years imprisonment by the first respondent.

He was, however granted leave to appeal against both conviction and
sentence.
The
Review Application
[33]
On the 27
th
of February 2012, the applicant filed the present review application
to review and set aside the criminal proceedings under Case
No.
41/806/10.
[34]
In his founding affidavit supporting the review application, the
applicant has alleged that this application is aimed at dealing

specifically with the conduct of the first respondent during the
entire criminal proceedings.
[35]
The applicant is of the view that a reasonable perception exists
that, generally, the first respondent became subjectively
involved in
the criminal proceedings and that she was in fact biased in favour of
the complainant.  This resulted in several
gross irregularities
vitiating the entire criminal proceedings and also nullifying the
applicant’s right to a fair trial.
[36]
On the 28
th
February 2012, the SCA granted special leave to appeal to the
Applicant.
[37]
On 20 March 2012, a letter was directed to the SCA on behalf of the
first respondent, advising the SCA that the first respondent
regarded
the order made on 28 February 2012 as annullity and with no effect.
[38]
On the 23
rd
of August 2012, the KwaZulu-Natal High Court Pietermaritzburg struck
off applicant’s appeal from the roll after it was agreed
by all
parties including the first respondent that the matter should be
heard by the SCA.  The applicant’s application
for the
review of the proceedings was, however, stayed pending the outcome of
the applicant’s appeal to the SCA.
[39]
Applicant’s appeal was set down for hearing on 29 August 2013
before the SCA.  However, on the 7
th
of June 2013, the SCA queried the fact that the Applicant brought his
appeal directly to that Court without first exhausting his
right to
appeal before the High Court.  By agreement between the parties,
the applicant’s appeal was again enrolled
in this Court.
[40]
By order of Madam Acting Justice Marks, dated 20 March 2014, the
complainant (NW) was admitted as an interested party to these

proceedings and granted leave to make submissions in respect of
Section 170A of the Act.  It will be convenient to set out
the
terms of the court order:
“
IT
IS ORDERED THAT:
[40.1]
The prayers 1 and 2 of the Notice of Motion be and are hereby
refused;
[40.2]
NW (the complainant) is admitted as an interested party in the review
and the appeal proceedings pending under Case Numbers
AR176/12 and
DR111/12;
[40.3]
The applicant is granted the right as an interested party to be
represented in the proceedings under respective Case Numbers
AR176/12
and DR 111/12 and that the complainant is granted leave to make
submissions in respect of Section 170A of Act 51 of 1977,
proceedings
only and not on the merits.
[40.4]
The applicant’s representative is directed to file heads of
argument on or before 7 April 2014”
[41]
The first two orders which were refused by the Acting Judge, Madam
Justice Marks, in the Notice of Motion were:
[41.1]
Firstly, to join the complainant as the third respondent in the
review and appeal proceedings, and ;
[41.2]
Secondly, to admit the complainant as an
amicus
curae
in review and appeal proceedings
under the two cases pending.
[42]
In terms of the above mentioned court order, the interested party’s
rights to make submissions would only be limited
to Section 170 A (1)
of the Act and not on the merits of the matters.
[43]
On the 3
rd
of April 2014, a notice in terms of Rule 16A of
the Rules of this Court was filed on behalf of the interested party.
This
notice reads as follows:
“
Kindly
take notice that the following Constitutional issues are raised in
the interested party’s submissions in this application:
1.
Whether Section 170A(1) of the Criminal
Procedure Act 51 of 1977 (CPA), properly interpreted in the light of
Section 39(2) of the
Constitution, confers a discretion on a
Presiding Officer in a criminal trial order the appointment of the
intermediary in cases
where the witness concerned is over the age of
eighteen years.
2.
In the alternative, whether Section 170A(1)
of the CPA is unconstitutional and unlawful on the basis that it
infringes:
2.1
The right to equality under Section 9 of
the Constitution;
2.2
The right to human dignity under section 10
of the Constitution;
2.3
The right to bodily and psychological
integrity under Section 12(2) of the Constitution; and
2.4
The right of access to court under Section
34 of the Constitution;
3.
If Section 170A (1) of the CPA is
inconsistent with the Constitution, what the appropriate remedy is.”
[44]
Written submissions on behalf of the interested party (the
complainant) were filed on the 7
th
of April 2014.  These mainly deal with the Constitutional
validity of Section 170A (1) of the Act.  These were not set
out
as grounds of review in the applicant’s founding affidavit in
support of the review application.
[45]
At the commencement of the proceedings, the Court enquired from
Counsel for the interested party if Rule 10A of the Rules of
this
Court, dealing with the joinder of the relevant Minister had been
complied with.  Counsel for the interested party submitted
that
in terms of this Rule, it is sufficient if the Minister concerned is
served with the application papers and she referred to
the case of
Khosa
and others vs Minister of Social Development and Others
;
Mhlaule
and Others vs Minister of Social Development and Others
[2]
.
However,
in the
Khosa
matter, the case had to be postponed for the non-joinder of the
relevant Minister.
[46]
The notice in terms of Rule 16A and the interested party’s
submissions  appears to have been served on the State
Attorney’s
office, addressed to the Minister of Justice and Constitutional
Development.  But the Minister was not joined
as an interested
party, hence the case was postponed.
[47]
Before the issue of the non-joinder of the Minister concerned was
dealt with, Counsel for the applicant in the review application

raised a point
in limine,
on whether it was appropriate for this court to deal with a
Constitutional issue that had no bearing on the resolution of the
cases before it.
[48]
Mr Scheltema, for the applicant in the review application, referred
to the Director of Public Prosecutions,
Transvaal
vs Minister of Justice and Constitutional Development and Others
[3]
.
[49]
He submitted that the Constitutional Court in that case found that it
was not appropriate for the High Court to raise and deal
with the
constitutionality of Sections of Acts that had no bearing on
resolution of the cases before it.
[50]
In upholding the point
in limine
,
I indicated that as in the present case, the accused in that case had
no interest in defending the constitutionality of certain
provisions
of the Act.  In this case, the applicant had not filed any
submissions dealing with the constitutionality or invalidity
of the
relevant section of the Act.
[51]
It was correctly submitted on behalf of the applicant in the review
application that the submissions made on behalf of the
interested
party cannot cure the problem that arose as the parties themselves
are disinterested in the resolution of that matter.
[52]
I pointed out that the submissions made by the interested party,
although important, are irrelevant to the case before this
Court.
[53]
The Court declined to deal with the Constitutional validity of
Section 170A of the Act.  This finding coupled with the
limited
rights granted by Marks AJ led to the exit of Counsel for the
interested party from these proceedings.
Considerations
of the question of law – Bias
[54]
Bias, in the sense of judicial bias, has been said to mean a
departure from the standard of even-handed justice which the law

requires from those who occupy judicial offices
[4]
.
[55]
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.
[56]
After carefully considering the previous decisions dealing with bias
– including
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers Union and Another
[5]
and other related cases, the SCA in
S
v Roberts
[6]
concluded that the requirements of the test thus finalised are as
follows:
(a)
There must be a suspicion that the
administrator might – not would – be biased;
(b)
The suspicion must be that of a reasonable
person in the position of the person affected;
(c)
The suspicion must be based on reasonable
grounds;
(d)
The suspicion must be one which the
reasonable person would – not might – have.
Grounds
of the Review Application
[57]
On the 1
st
of March 2012, the second respondent filed a notice of intention to
oppose the review application and in the said notice the second

respondent indicated that the answering affidavit will be filed
within thirty days of receipt of the Notice of Motion.
[58]
However, no answering affidavit has been filed to date.
[59]
The background and the grounds upon which the review application is
founded are clearly set out in the founding affidavit in
support of
the review application.
[60]
In these grounds of review, the appointment of an intermediary in
terms of Section 170 (A) of the CPA has not been advanced
as an
independent ground of review, as the complainant was 18 years old at
the time she testified.
[61]
However, the applicant has alleged as a ground of review that a
reasonable perception exist that, first respondent when considering

the appointment of the intermediary, already accepted that the
applicant had forced the complainant into some sexual activity before

even hearing the complainant’s evidence.
[62]
This and other grounds mentioned in para 43.2 to 43.7 of the founding
affidavit have not been properly substantiated by the
applicant.
[63]
It was submitted on behalf of the applicant that a reasonable
perception exists that the first respondent became subjective
in the
criminal proceedings, and that she was in fact biased in favour of
the complainant or the prosecution.  This resulted
in several
gross irregularities vitiating the entire criminal proceedings and
also nullifying the applicant’s right to a
fair trial.
[64]
It was submitted that on the 22
nd
of September 2011, the first respondent, without the knowledge of the
applicant at the time, submitted by way of the letter to
the review
court, that the certificate be endorsed in terms of
Section 304(1)
of
the
Criminal Procedure Act 51 of 1977
to the effect that the
proceedings were in accordance with justice.  This refers to an
email from the first respondent sent
to Judge Pillay on the 2
nd
of September 2011, which reads as follows:
“
Dear
Judge Pillay
Re
- S Hewitt
As
per our telephonic conservation, the court setting was as follows:
Complainant
testified through an intermediary in an adjoining room to the court.
Questions that were asked to her, were repeated
by the intermediary
almost verbatim, and in a more gentle tone of voice (as opposed to
the harsh tone used by the defence advocate).
She could be seen
on CCTV by all parties including the accused, seated in the accused
dock.  I respectfully submit that although
there was this
irregularity, it was by no means gross or fatal, and that proceedings
were still in accordance with justice, and
respectfully submit, that
the certificate should be endorsed to this effect in terms of
section
304(1)
of the
Criminal Procedure Act 51 of 1977
.
Do
not hesitate to contact me should you have any further questions …
Kind
regards
Dina
Turner”
[65]
It has been submitted that it was not the function of the first
respondent to endorse the certificate as aforesaid.  The
first
respondent was not invited to make any recommendations with regard
the issuing of the said certificate.
[66]
It was also submitted that the applicant had no knowledge of the
telephone conversation between the first respondent and the
review
court referred to in the letter.
[67]
In the memorandum dated 5
th
September 2011, under review Case No. DR 349/11, annexure SG5 to the
applicant’s founding affidavit, Judge Pillay states
that on the
12
th
of August 2011, when she became aware that Swain J had permitted the
parties to deliver submissions fourteen days after they had
received
a record, she wrote to the DPP, Karl Van der Merwe, TLAC and the LRC
extending the date for the submission to 29 August
2011.  She
goes on to say that on the 1
st
of August 2011, she wrote to the learned Magistrate inviting her once
again to elaborate why she had found that the alleged irregularity

was not gross.  Not having heard from her, she telephoned her on
the 2
nd
of September 2011 and elicited her written response describing the
physical condition under which the complainant testified. These
are
the circumstances under which the letter referred to above was
written by the first respondent.
[68]
In the same memorandum, Judge Pillay, concluded :
“
Having
considered the record of the proceedings in the Magistrate’s
Court, the submissions by the DPP on behalf of the State,
by Mr Van
der Merwe for the accused and the learned Magistrate’s
description of the physical arrangement for the eliciting
of evidence
of the complainant through an intermediary, I am satisfied that the
proceedings were in accordance with justice. I
accordingly have
endorsed my certificate to this effect”.
[69]
In the light of the memorandum referred to above, in my view, this
ground of review by the applicant has no substance.
[70]
The other ground of review is that on the 26
th
of September 2011, the first respondent sent an email to the review
court urging the court to finalise the applicant’s application

for leave to appeal speedily and urgently as the complainant deserved
closure.  The applicant contends that this was also
done without
his knowledge at the time.
[71]
This email was sent to different parties involved in this matter on
the 26
th
of September 2011 by the first respondent, it has not only been
emailed to the reviewing Judge.  Even the heading is addressed

to all parties concerned.
[72]
It would be convenient to set out this letter verbatim:
“
My
submission was faxed through to the Honourable Reviewing Judge Pillay
on 5 August 2011.  For unknown reasons, it was never
received,
and was resent once I was contacted by Ms Chiara, when I was informed
that the submission had not been received, so I
re-sent it, together
with proof of the 5 August fax.
The
matter is currently still part-heard.  Although the accused has
been convicted, it remains for him to be sentenced.
The matter
is set down again in the Regional Court on 25 November 2011.  I
respectfully request that the defence application
for leave to appeal
the review decision (whole case is still part-heard) be made speedily
and urgently, well before 25 November
2011, so there are no further
delays in this matter reaching finalisation.
Cases
of this nature usually take about three months, from plea to
finalisation.  The accused in this matter, pleaded on 26
October
2010 (a year ago today), and was convicted on 1 December 2010, so by
the time 25 November 2011 rolls around, if will be
almost a year
since the date of conviction and this trial would have been
proceeding for over a year.
Because
of the on-going delays, in this case, I respectfully request, that
the defence application for leave to appeal be dealt
with as speedily
and as urgently as possible, as not only does the accused have a
right to a speedy trial, but the victim deserves
closure.  It is
now in the best interests of justice, and of all the parties that
this case be finalised, without any more
delays.
This
court has requested the probation officer’s report and the
correctional supervision report, and can see no reason, why
the
accused should not be sentenced on 25 November 2011.  Both the
state and defence are requested to be ready, if they have
further
submissions to make in mitigation or aggravation and to have their
witnesses present (if any, are to be called).
Thanking all
parties in advance, for their anticipated co-operation.
Regards
Delia
Turner
Regional
Magistrate
K
Court, Durban.”
[73]
It is also clear that this same letter was also sent to the
applicant’s attorney Carl Van der Merwe in this email address
carivdm@law.co.za
.  It is
therefore misleading to allege that this was done without the
applicant’s knowledge as alleged.
[74]
It was, however, submitted on behalf of the applicant that as the
letter suggested the applicant should be sentenced on the
25
th
of November 2011, this actually influenced the reviewing Judge to
suspend the operation of the application for leave to appeal.
[75]
In my view, this ground of review has no substance in that the
applicant himself has alleged that the parties argued before
the
Reviewing Judge, prior to the suspension of the operation of the
Application for Leave to Appeal.
[76]
In view of the review court’s order, the applicant was
constrained to appear before the first respondent on the 25
th
of November 2011 for the sentence procedure.  The applicant had
some serious doubts as to whether the first respondent would
afford
him fair hearing. On the same day, the first respondent refused an
application made on behalf of the applicant for a postponement
of the
sentence proceedings pending the outcome of his Application for Leave
to Appeal to the Supreme Court of Appeal.
[77]
The review court certified that the proceedings in the Regional Court
were in accordance with Justice and granted Leave to
Appeal to the
SCA which was also suspended.  The Court gave the applicant
leave to appeal against its decision which it suspended.
It is
against that decision that the applicant approached the Supreme Court
of Appeal for Leave to Appeal against that particular
decision of the
review court.
[78]
The applicant was entitled to approach the Supreme Court of Appeal to
seek leave to appeal against the decision of the review
court.
[79]
In my view, the Magistrate committed a gross irregularity in refusing
applicant the right to approach the Supreme Court of
Appeal.
[80]
In refusing an application for postponement pending the results of
the SCA Court, the Magistrate stated the following:
“
The
court is aware of all the appeal processes that are going on and the
court does not know how long it will take in the SCA or
what is going
to happen in the future.  There is even talk of this matter
going to the Constitutional Court, and this will
take a very long
time.
The
court, however, feels that what this court dealt with was strictly
this irregularity, was that of the age which has been found
by the
High Court not to be an irregularity at all and at the risk of
repetition, the High Court stated:
“
Not
an irregularity …  for these reasons I have certified the
proceedings in the Magistrates’ Court as being in
accordance
with justice”.
So
the proceeding that happened in this court, the Regional Court, have
been found to be in accordance with justice.
The
application for a further remand is refused.”
(Record pages 274
– 275)
Further
application for adjournment of the sentence proceedings pending
review in terms of
Rule 53
of the Rules of Court.
[81]
Mr Scheltema for the applicant applied to court for a further
postponement to enable the applicant to take the Regional Court

decision ordering that the sentence proceedings commence, on review
in terms of
Rule 53
of the Rules of Court..
[82]
The Regional Magistrate responded as follows:
“
You
can do all the applications you like after the sentencing proceeding
is complete.  In mitigation?”
(Record
page 275)
[83]
It is clear from the Magistrate’s utterance in response to this
application that she had made up her mind even before
hearing the
grounds upon which the application was going to be founded.
[84]
In this regard, it would be appropriate to quote verbatim from the
record regarding these applications:
“
Mr
Scheltema
: Your Worship, I have
notified The Court of the intended procedure that we would like to
take this on review.  Now, Your Worship,
…
[intervention]’
Court:
…
[indistinct – simultaneously]
Mr
Scheltema:  May I then ask that this matter stand down at this
point so we can approach the High Court this morning and
before 2
o’clock so that we can still get to a judge in chambers?
Court
:
… [indisctinct]
Mr
Scheltema
:  May I take an
instruction then, Your Worship, because
…
[intervention]
Court:
No, … [indistinct]
Mr
Scheltema:
May I just take
an instruction as to what we are supposed to so because If we are
prevented from approaching the High Court I …
[intervention]
Court:
You can … [indistinct –
simultaneously]
Mr
Scheltema
: … [indistinct –
simultaneously] going to respect Your Worship’s order.
Can you just allow me the opportunity?
We respect Your
Worship’s ruling but I will have to take instructions.  I
do not think that his legal team at this point
will be able to do any
justice to his case because   [intervention]
Court:
You cannot take instructions in mitigation?
Mr
Scheltema:
No no, Your Worship,
we have indicated we want to take Your Worship’s ruling on
review, which is his good right by the way
in terms of
Rule 53.
That is being refused.  Your Worship ordered that the sentence
commences.  We have indicated … [intervention]
Court
:
… [indistinct – simultaneously] the High Court.
Mr
Scheltema:
We then request
to approach the High Court urgently.  It is a Friday afternoon.
We are only asking that the matter stand
down until 2 o’clock
so that we bring an application in the High Court on this issue.
Now, this has also been refused.
We also respect that.
But that places us in a predicament.
Court:
You can just proceed to sentence and you can make
all the applications you like afterwards.
Mr
Scheltema:
Your Worship,
…[intervention]
Court:
You just … [indistinct] delaying tactic … [indistinct]
Mr
Scheltema
:  Your Worship,
approaching the High Court is aimed at the very order that Your
Worship made.
Court
:
Are you going to instruct – are you going to  …
[indistinct – simultaneously]
Mr
Scheltema
:   May I be allowed
two minutes to take instructions?
Court
:
Right, two minutes.  Take instructions.
Mr
Scheltema:  Thank you.
Court
:
Mr van der Merwe is the advocate.  Can you address the
Court in mitigation?
Mr
Van der Merwe
:  No, Your Worship.
My instructions are already I can place on record that we will
approach the Judge in the High Court
for an order preventing this
Court … [intervention]
Court:
On sentencing?
Mr
Van der Merwe:
On
sentencing, yes.
Court
:
[indistinct]
Mr
Van der Merwe
:  Yes.  It is
our good right, Your Worship.  If I may address you.  I am
not properly robed and I am not properly
before you but may I address
you as I am clothed at the moment?
Court:
Can I take it that the defendant is going to
refuse to address the Court in mitigation?
Mr
Van Der Merwe:
Those are
instructions because my instructions are from the accused that his
right is that he wants to go on review of Your Worship’s

ruling, which is his good right.  It has been done in this
building before, so it is not a novel situation.  The rules
are
very clear that it is a legal right that he has.
It
is also very clear in the Constitution that he has that right and if
we are prevented from going on review my instructions are
that I will
have to withdraw because I will have to leave this Court and go and
approach a High Court judge in chambers which is
available up until 4
o’clock and we will be back at this court with an order from
the judge.  It has been done in this
building before, I have
placed on record.  It’s not a not a novel approach, it is
a proper legal approach to the whole
situation.
The
accused feels he is very aggrieved and he has a right of review and
appeal.  That’s a constitutional right and he
feels that
that right is being taken away from him at this stage.  So, I
won’t be in a position to proceed because I
am instructing
counsel and my instructions …[intervention].
What
I want to know basically are you withdrawing as his attorney of
record?
Mr
Van der Merwe
:  I will take
instructions now.
Court
: … or are you going to address the Court
in mitigation/
Mr
Van der Merwe
:   Your
Worship, I will take instructions now to confirm what I have placed
before Court.  If it is correct what
I have placed before Court
then we will be withdrawing and proceeding directly to the High Court
and I will tell the Court and
give the Court the Court notice that we
are proceeding to the High Court immediately from here.  Your
Worship, might I turn
my back on you … ?”
(Record
pages 275-279)
[85]
These applications were refused by the Magistrate and the applicant’s
rights to legal representation, as a result thereof
Mr Scheltema and
Mr Van der Merwe withdrew as legal representatives of the applicant,
their mandate having been terminated by the
applicant.  The
aspect of the refusal of legal representation is dealt with fully
‘below’.
[86]
Having regard to the above, I fully agree with Counsel for the
applicant’s submissions that:
[86.1]
First respondent’s refusal to have the criminal proceedings
postponed on the 25
th
of November 2011 was grossly unfair;
[86.2] The first
respondent’s refusal on 25
th
November 2011 to allow
the applicant take her decision on review to the High Court in terms
of Rule 53 was grossly unfair and irregular.
[87]
First respondent’s refusal on the 25
th
of November 2011 to allow the applicant to approach the High Court
for an urgent relief was grossly unfair and irregular.
[88]
The first respondent’s conduct in proceeding with the sentence
procedure well knowing that the High Court was being approached
on an
urgent basis, on the 25
th
of November 2011 was grossly unfair and irregular.
Denial
of Legal Representation
[89]
A further ground of review is that a reasonable perception exists
that the first respondent was in fact unaware that the applicant
had
the right to legal representation during the sentencing procedure.
The applicant submits that the first respondent’s
remark that
the applicant was not required to defend himself during the sentence
procedure was wrong in law and this approach overlooked
the fact that
his right to a fair trial also extended to the sentence procedure.
[90]
In this regard, it would also be convenient to quote verbatim from
the record, on what transpired between the applicant and
the first
respondent in this regard.
“
Court:
Are you going to conduct your own defence during the sentencing
process?
Accused:
No, ma’am, I am not qualified
enough to do that.
Court
:
I will help you through that.  You may be excused.  As per
your instructions you have now terminated the mandate
of your
attorney and advocate and the Court is now duty bound to sentence
you.  You have got certain rights that the court
will now
explain to you.  You can address the Court from there
…[intervention]
Mr
Van der Merwe:
May I
be excused?
Court:
You may. You can address the Court from where you
are standing and the court will assist you because you are no longer
represented
or you can come to the witness box and you can testify in
mitigation or sentence and/or you can also call any witnesses that
you
wish to testify in mitigation.  Do you understand that?
Accused:
I understand but I am not qualified enough and I
will request to get legal representation.
Court:
I will help you through it because I am qualified
so I can help you through it.  See, that’s going to put
this …
[indistinct]
Accused:
No, ma’am, I would like to get legal
representation.
Court:
The Court is not going to grant that now.
You just fired your legal representation.  And do you want to
address me in
mitigation of sentence or do you want me to sentence
you without any address in mitigation?
Accused:
Ma’am, I am waiting for my  -
it’s my constitutional right to have legal representation and I
need legal
representation.  I am not qualified enough to handle
it”.
(Record pages 280-281)
[93]
It is clear from the extract referred to above, from the record that
when the Magistrate asked the applicant as to whether
he was going to
conduct his own defence during the sentencing stage, he answered in
the negative, and clearly stated that he is
not qualified enough to
do that.
[94]
The Magistrate proceeded to say that as per the applicant’s
instructions he has now terminated the mandate of his attorney
and
advocate and the court is now duty bound to sentence him.  He
goes on to explain his rights.
[95]
Despite the applicant’s insistence that he required legal
representation and that he was not qualified to deal with the

sentencing process, that it was his Constitutional right to have
legal representation, the Magistrate proceeded with the sentencing

process until the case was finalised.
[96]
In my view, this constituted a serious irregularity.
[97]
It is trite that in terms of subsections (1), (2) and (3) of Section
35 of the Constitution, a right to legal representation
is not
limited to a trial stage.  The right to legal representation
exists during the whole of the legal process until the
last court has
spoken the last word.
See:
S v Mofokeng 2004(1) SACR 349 (W) at para 17.
[98]
It is trite that the accused’s right to legal representation is
of course worthless if he or she is not given a reasonable

opportunity to use it.  When a reasonable request for time to
obtain legal advice is refused, any conviction which follows
will
almost be invalid and set aside on appeal or review.
[99]
Everyone is entitled to a fair trial and that includes the right to a
hearing before an impartial adjudicator.  This common
law right
is now constitutionally entrenched.
[100]
It has been held that a supreme approach towards litigation by
Judicial officers is not justifiable either in terms of the
fair
trial requirement or in the context of resources.  One of the
oldest tricks in the book is the practice of some legal

practitioners, whenever the shoe pinches, to withdraw from the case,
or of clients to terminate the mandate, to force the court
to grant
the postponement because the party is then unrepresented.
Judicial officers have a duty to the court system, their
colleagues,
the public and the parties to ensure that this abuse is at bay, in
suitable cases, by refusing the postponement.
Mere withdrawal
by a practitioner or, mere termination of the mandate does not,
contrary to popular belief, entitle a party to
a postponement as of
right.
See:
Take and Save Trading CC vs Standard Bank of S.A. Ltd 2004(1)
4 SA 1
SCA at pages 4G – page 5B.
[101]
It is trite that upon the withdrawal of the accused legal
representative from the case, the court should ask the accused
whether he wishes to have an opportunity of instructing another legal
representative; and if he does not seek an opportunity, he
should be
asked whether he is ready to undertake his own defence.
See:
S v Kwali 1990(1) SACR 276 and
S
v Manali 200(2) SACR 666 (NC) at 671 g-h.
[102]
An all important consideration in assessing an application for
postponement because of the withdrawal of a legal representative
is
whether the situation will be any better on the date postponed to.
Prejudice is an important consideration.
[103]
The Regional Court Magistrate in this regard, did not consider the
principles applicable in applications for postponement,
more
especially the prejudice to be suffered by the applicant when she
proceeded to sentence applicant without legal representation.
[104]
In my view, the denial to legal representation at this crucial stage
of the proceedings is the violation of a right to a fair
trial which,
in my view, constituted gross irregularity by denying the applicant
legal representation.
[105]
The applicant’s request to a legal representation did not
amount to an abuse of the legal process as the Regional Magistrate

found.
[106]
The whole sentencing process on the 25
th
of November 2011 in the absence of the applicant’s legal
representative resulted into a travesty of justice.
[107]
When the first respondent rushed the sentencing procedure to finalise
the case, even during the lunch break, she was aware
that the process
for an urgent relief in the High Court, was on the pipeline.
Arrangements had been made and Senior Counsel
had been appointed to
deal with High Court application on the 25
th
of November 2011 at 2pm.  As the applicant has correctly pointed
out, the sentence was, however, handed down during lunch
break and
before the High Court could entertain the urgent application brought
on behalf of the applicant.
[108]
The applicant was further denied an opportunity to address the court
after the evidence of the witnesses E P Moodley, the
Correctional
Officer, and A B Nkabinde, the Correctional Supervision Officer.
In this regard, the Court was referred to
S
V Phillips
[7]
,
wherein the accused’s counsel was not given an opportunity of
addressing the court on a Probation Officer and Correctional

Officer’s reports.  The Court, in that
Phillips
case held that such constituted a gross irregularity that led to the
setting aside of the sentence.
[109]
It is clear from the record that the Magistrate failed to give the
applicant an opportunity to address the court on the contents
of the
Probation and Correctional Officer’s reports before imposing
sentence.  This constituted an irregularity.
[110]
The right to address court at the conclusion of evidence is of such a
fundamental nature as not to be departed from unless
expressly waived
by the parties
(See:
S v Muller and others
[8]
.)
[111]
In
De
Beer NO vs North – Central Local Council and South Central
Local Council and Others (Umhlatuzana Civil Association
intervening)
[9]
,
the
Constitutional Court said the following about a fair hearing:
Component of a section 34 of the Constitution:
“
A
fair hearing before a Court is a prerequisite to an order being made
against any one is fundamental to a just and credible legal
order.
Courts in our country are obliged to ensure that the proceedings
before them are always fair.  Since procedures
that would render
the hearing unfair are inconsistent with the Constitution.
Courts must interpret legislation and rules
of court, where it is
reasonably possible to do so, in the way that would render the
proceedings fair.  This was cited with
approval in S v Phillips,
supra.”
[112]
I have already indicated that, no answering affidavits were filed on
behalf of the first and the second respondents in this
matter.
At the end of the day, the allegations made by the applicant and the
grounds upon which the review is founded as
set out in the founding
affidavit save where they are inconsistent with the content of the
record, have not been refuted by any
other evidence.
[113]
The irregularities alleged in the founding affidavit have been
levelled against the first respondent who actually made decisions

sought to be reviewed and set aside.  There are no allegations
of impropriety against the second respondent.  Counsel
for the
second respondent clearly indicated that she was not acting on behalf
of the first respondent but represented the second
respondent in the
proceedings.  She had no authority whatsoever, to represent the
first respondent.
[114]
In the absence of any impropriety or irregularities against the
second respondent, the less is said about the second respondent’s

submissions, the better.
[115]
Returning to the application of the reasonable suspicion test to the
facts and circumstances of the instant case, there can
be no doubt
that the first respondent’s conduct from the beginning to the
end of these proceedings would have provided the
reasonable person in
the applicants position with reasonable grounds to think that the
Court might be biased.
[116]
In my judgment, and considering all the circumstances of the instant
case, the applicant has succeeded in discharging the
necessary onus
of proving bias by the first respondent.
[117]
It follows that in the instant case that there are circumstances
which compel the conclusion that these irregularities taint
the
entire trial and that the convictions and sentences cannot be allowed
to stand.
[118]
Remitting this matter to the Magistrate’s court for retrial
would cause undue delay contrary to the interest of justice.
[119]
An accused person is entitled to have his trial completed within a
reasonable time.  The applicant was convicted on 1
December 2010
and sentenced on 25 November 2011.
[120]
I am satisfied that the irregularities referred to above are of such
a nature that the applicant’s constitutional rights
to a fair
trial were violated.
[121]
The court was not addressed on the issue of costs in this
application.
[123]
In the result, the following order is proposed:
(a)
The review application succeeds.
(b)
The convictions and sentences imposed by the court
a
quo
are set aside.
_________________
SISHI
J
I
agree
_______________
RADEBE
J
APPEARANCES
Date
of hearing : 15 April 2014
Date
of judgment: 19 February 2015
Counsel
for the Applicant: G P Scheltema SC
Instructed
by:
Carl Van Der Merwe & Associates
Inc
3
rd
Floor, 6 Durban Club Place
DURBAN
C/O
MASON INCORPORATED
3
RD
Floor, Fedsure House
251
Church Street
PIETERMARITZBURG
Ref:
Petrus Coetzee
Tel:
033 345 4230
Counsel
for 1
st
Respondent: No appearance
Counsel
for 2
nd
Respondent:
D Naiker
Instructed
by: Office of the Director of Public
Prosecutions
PIETERMARITZBURG
Counsel
for Interested Party:
K Pillay
N
Lewis
Instructed
by the LRC: Legal Resources Centre
Anneline
Turpis
N240
Diakonia Centre
20
Diakonia Avenue
DURBAN
Tel:
031 301 7572
[1]
S v Mashinini 2012(1) SACR 604 (SCA) para 10.
[2]
2004(6)
SA 505 (CC) at para 25.
[3]
2009(2)
SACR 130 CC.
[4]
Franklin
& Others v Minister of Town and Country Planning
[1947] UKHL 3
;
(1947) 2 All ER
289
at 296 B-C
S
v Rall 1982(1) SA 828 at 831 A – 832 A.
[5]
1992(3)
SA 673(A)
[6]
1999(4)
SA 915 (SCA) at paras 32-34
[7]
2010(1)
SACR 466
[8]
2005(2)
SACR 451 at 458 a-c
[9]
2002(1)
SA 429 (CC) 2001(11) BCLR 1109 at 439 g-h