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[2014] ZANCHC 15
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S v Du Toit and Others (KS 8/2014) [2014] ZANCHC 15 (29 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[NORTHERN CAPE
DIVISION: DE AAR CIRCUIT]
JUDGMENT
CASE
NUMBER: KS 8/2014
DATE:
29 OCTOBER 2014
THE STATE
AND
JOHANNES WILLEM
DU TOIT
................................
ACCUSED
NO 1
GIDEON JOHANNES
THIART
..................................
ACCUSED
NO 2
MERCIA VAN
DEVENTER
.......................................
ACCUSED
NO 3
Dates of hearing
: 28 October 2014
Date of judgment
: 29 October 2014
Phatshoane J
1. Mr Johannes
Willem du Toit together with Mr Gideon Johannes Thiart and Ms Mercia
van Deventer, accused No 2 and accused No 3,
were arraigned on a
count of murder. In respect of accused No 2 and No 3, they also face
alternative counts pertaining to conspiracy
and incitement to commit
murder. The State and Mr Du Toit, who was represented by Mr Van
Tonder of the Legal Aid Board, entered
into an agreement in terms of
s 105A of the Criminal Procedure Act, 51 of 1977, (the CPA). On the
basis of this agreement, Du Toit
was convicted of murder and
sentenced to 22 years imprisonment in terms of s 105A (8) of the
CPA.
2. It goes without
saying that where, as in this case, a number of accused are arraigned
and the Court has convicted one or more
of the accused on the
strength of their plea and sentenced them, separation of the trials
ought to take place in respect of the
accused who wish to plead not
guilty. This is an established and a prudent rule of practice. See R
v Zonele and Others
1959 (3) SA 319
(A) at 325D-G. The question of
separation of the trials is not in dispute. What is in issue is
whether having being privy to the
factual background as set out in
the Plea and Sentence Agreement of the State and Du Toit I should
continue and preside in the
trial of accused No 2 and No 3.
3. Adv Cloete, for
the State, contended that the trial of accused No 2 and No 3 ought to
proceed before me because I have not made
any credibility findings
against any of the accused. In any event, he argued, even if the
trial was to commence de novo before
a different presiding officer
reference would still be made to the fact that Du Toit, who is to
turn a State witness in the case
of accused No 2 and No 3, was
convicted of the offence with which accused No 2 and 3 are charged.
With reference to the commentary
under s 157 of the CPA in the
Commentary on the
Criminal Procedure Act, by
Du Toit et al, at 22-48
(Service 52 of 2014) counsel contended that there can be no objection
to a judicial officer who convicted
an accused who pleaded guilty
hearing the case against an accused who pleads not guilty.
4. Mr Cloete
contended that should I not preside over the case of accused No 2 and
No 3 both the State and the accused would suffer
prejudice in that it
would depend on the availability of another presiding judge to hear
the matter which might not be in a near
future. That the accused have
been in custody since October 2013, a year ago. That the State has
already secured the attendance
of its witnesses for the trial. These
witnesses would have to be subpoenaed again to attend the trial in
the future while I am
readily available to hear the matter which has
been set down for two weeks.
5. Adv Moeti, for
accused No 2 and No 3, in his countervailing argument pressed that
accused No 2 and No 3 stand to suffer grave
prejudice if their trial
is to resume before me because Du Toit, in his agreement with the
State, revealed certain ‘dangerous’
evidence which
implicates them. He argued that a judicial officer ought not to be
apprised of the facts of the case at the commencement
of the trial
and that accused No 2 and No 3 has apprehension that I will be biased
against their cause and therefore I should recuse
myself from hearing
their case.
6. The proper
approach to recusal applications was formulated as follows in
President of the Republic of South Africa and Others
v South African
Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) (Sarfu) at
177B-E para 48:
“[48]…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; and their ability to carry
out that oath by reason
of their training and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions.
They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves.
At the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite for a fair trial and
a judicial
officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part of the litigant for
apprehending
that the judicial officer, for whatever reasons, was not
or will not be impartial.”
7. In his discussion
of the test formulated in Sarfu (supra) Cameron J in South African
Commercial Catering and Allied Workers Union
and Others v Irvin &
Johnson Ltd (Seafood Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC)
at 714F-G para 14 stated the following:
“[14] The
Court in Sarfu further alluded to the apparently double requirement
of reasonableness that the application of the
test imports. Not only
must the person apprehending bias be a reasonable person, but the
apprehension itself must in the circumstances
be reasonable. This
two-fold aspect finds reflection also in S v Roberts
[1999 (4) SA 915
(SCA) ], decided shortly after Sarfu, where the Supreme Court of
Appeal required both that the apprehension be that of the reasonable
person in the position of the litigant and that it be based on
reasonable grounds.”
See also the General
Council of the Bar of South Africa v Geach and Others
2013 (2) SA 52
(SCA) at 79D-E para 91 where the Court held that mere
apprehensiveness on the part of a litigant, even a strongly and
honestly
held anxiety, would not be enough. The question to be
answered is: 'what would an informed person, viewing the matter
realistically
and practically, and having thought the matter through,
conclude.
8. Mr Cloete
referred me to R v T
1953 (2) SA 479
(A) and S v Somciza
1990 (1) SA
361
(A) as authority for the proposition that there can be no
objection to a judicial officer who convicted an accused on the
strength
of his plea hearing the case against an accused who has
pleaded not guilty. It is apposite to quote in extenso what the
ConCourt
had to say about these two decisions in South African
Commercial Catering and Allied Workers Union and Others v Irvin &
Johnson
Ltd (Seafood Division Fish Processing) (supra) at 721E-722C
paras 36-38 and 731C-732B paras 69- 71:
“[36] Counsel
for the employer relied on the decision of the Appellate Division in
R v T, in which it was held that 'there
is no rule in South Africa
which lays down that a Judge in cases other than appeals from his
judgments is disqualified from sitting
in a case merely because in
the course of his judicial duties he has previously expressed an
opinion in that case'. In their argument
they submitted that R v T
had been approved in S v Somciza
[1990 (1) SA 361
(A)] and had been
cited in the Sarfu judgment. In R v T a magistrate who, on
uncontested evidence regarding a charge involving
a sexual offence
had in previous criminal proceedings found one party to the act
guilty, thereafter on contested evidence in a
second trial, where the
prosecution called the previous accused to testify, convicted the
other party to the act. It was contended
that the magistrate ought to
have recused himself from the second trial and that his failure to do
so constituted an irregularity
vitiating the conviction. The
Appellate
Division dismissed
this contention.
[37] The Court in
Sarfu cited R v T as authority for the proposition that Canadian
cases dealing with the presumption that a judicial
officer will act
impartially in any matter that he or she is called upon to decide
were consistent with our law. It was not necessary
in Sarfu to
consider the application of that principle to the facts in R v T, and
Sarfu is not authority for the proposition that
the failure of the
magistrate to recuse himself in such circumstances would be
consistent with the substantive elements of the
constitutional right
to a fair trial. In any event, for R v T still to constitute good law
today it would have to survive the test
set out above, namely whether
the magistrate had already in the earlier trial decided an issue that
was 'live and significant'
in the second trial. I doubt whether it
does.
[38] R v T was
distinguished in S v Somciza, where the Appellate Division held that
a magistrate whose decision convicting an accused
had been set aside
on appeal should not preside at a resumed hearing. Although the
accused had not testified in the first proceedings,
the magistrate in
convicting him had made 'strong credibility findings' in respect of
all the State witnesses in which he had accepted
the prosecution
evidence. Hence:
'However
dispassionately the magistrate might feel he would be able, because
of his judicial training, to weigh up the evidence
afresh once he has
heard the appellant's evidence, the appellant is, understandably,
unlikely to feel complacent about his prospects
of receiving a fair
trial before that magistrate.'
At 731C-732B paras
69-71 the Court proceeds:
[69] We have given
careful attention to the comprehensive manner in which Cameron AJ has
set out the facts, but on balance, we remain
of the view that it
would not only be wise for fresh judicial minds to be brought to bear
on the case, but that it is also constitutionally
necessary.
[70] We agree with
Cameron AJ's statement that R v T would be unlikely today to
constitute good law. The facts of that case (which
serve as a
reminder of the extent to which the courts in the pre-constitutional
era were used to enforce unjust and shameful laws)
were, in the
language used, as follows: a non-European woman was charged before a
magistrate with permitting a European male to
have carnal intercourse
with her. The magistrate convicted the female, and thereafter, when
the man was charged before him in a
separate trial arising from the
same facts in which the woman was a witness, the magistrate refused
to recuse himself. The Appellate
Division held that it could not
reasonably be inferred that there was a real likelihood that the
presiding magistrate was in fact
biased and sustained the decision by
the magistrate. Even if one accepts the high threshold laid down by
the Appellate Division
regarding the cogency of evidence needed to
justify recusal, we find the result surprising. In our view, the
Appellate Division's
decision in S v Somciza is more in accord with
our present day law. In that matter the Appellate Division, although
in a different
context, held that however dispassionate a magistrate
might feel on re-hearing a case where his decision had been
overturned on
appeal, the accused was, 'understandably, unlikely to
feel complacent about his prospects of receiving a fair trial'.
[71] Ordinary people
would say that a Judge should not sit in a matter where she or he has
already pronounced on the live and central
facts in issue. The saying
that not only must justice be done, it must be seen to be done, is a
well-worn one, and for good reason.
Much of our work involves
continuing defence of such simple verities...”
9. To my mind, the
proper administration of justice would also entail that the accused
should not hold any reasonable apprehension
that the presiding judge
would be biased against him or her. In S v Zuma and Others
[1995] ZACC 1
;
1995 (1)
SACR 568
(CC) at 579d-e para 16 it was held that the right to a fair
trial conferred by
s 25(3)
of the interim Constitution (the
Constitution of the Republic of South Africa Act, 200 of 1993) was
much wider than the list of
specific rights set out in paras (a) to
(j) of the subsection and embraced a concept of substantive fairness.
It can safely be
said that this would also be case with regard to the
rights set out in s 35 of the present day Constitution. The accused’s
right to a fair trial may not be sacrificed simply because, for
practical reasons, it makes sense that a judicial officer who already
disposed of the case of one of the accused in terms of s 105A of the
CPA is readily available to hear and conclude the case for
the
remainder of the accused. That situation would be untenable.
10. It is so that
the conviction and sentence of Du Toit followed on a plea bargain
agreement where I did not make any credibility
findings against any
of the accused. What matters the most is whether in considering the
plea bargain agreement the Court made
a pronouncement on the live and
central facts in issue. The answer to this question is certainly in
the affirmative. It is important
to bear in mind that in terms of s
105A(7) the Court ought to be satisfied that the accused admits the
allegations in the charge
and that he is guilty of the offence in
respect of which the agreement was entered into. It will in the
circumstances place me
in an invidious position in that I believed in
the truth of the averments made by Du Toit whom I have convicted. If
discredited
under cross- examination that might put me in a
conflictual position.
11. For reasons
aforesaid I am of the view that it would be proper for another
presiding judge other than myself to hear the case
in respect of
accused No 2 and No 3.
12. In the result:
ORDER
1. The trial of Mr
Johannes Willem du Toit is hereby separated from the trial of Mr
Gideon Johannes Thiart and Ms Mercia van Deventer,
accused No 2 and
3.
2. The trial of
accused No 2 and 3 is to commence de novo before a different Judge of
this Division.
MV Phatshoane J
Northern Cape
Division
For the State:
Adv H Cloete (Instructed by the office of the Director of Public
Prosecutions)
For Mr Johannes
Willem du Toit: Adv A Van Tonder (Instructed by Legal Aid South
Africa)
For accused No 2
and No 3: Adv JP Moeti (Instructed by Legal Aid South Africa)