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[2013] ZAGPPHC 108
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Ndleve v Director of Public Prosecutions North Gauteng, Pretoria and Another (A877/11) [2013] ZAGPPHC 108 (22 April 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: A877/11
DATE:22/04/2013
In the matter between:
RALPH PATRICK
NDLEVE
…
...........................................................
APPLICANT
And
DIRECTOR OF
PUBLIC PROSECUTIONS
…
...............................
1ST
RESPONDENT
NORTH GAUTENG, PRETORIA
THE REGIONAL
MAGISTRATE JH WESSELS
............................
2ND
RESPONDENT
JUDGMENT
RATSHIBVUMO (AJ):
1. This is a special review wherein
Mr. Ralph Patrick Ndleve, herein after referred to as the appellant,
seeks the intervention
of this court in the proceedings pending
before Waterval Regional Court, by reviewing a decision by a regional
magistrate in refusing
to recuse herself. The order sought is not
clear from the heads of argument filed before us. This could be owing
to the fact that
the appellant being legally qualified and an
advocate of this court, opted not only to conduct his own defence for
trial purposes
before the Regional Court, but also to prosecute this
application in person. Upon reading the proceedings before the
Regional Court,
it is clear that the appellant seeks an order setting
aside the decision to refuse the application for the presiding
officer to
recuse herself and an order for the trial to start de novo
before another presiding officer.
2. Following is the background of the
case. The appellant is standing trial on a charge of fraud involving
R91 759.98. After numerous
postponements for trial which did not
materialise owing to various reasons; case was remanded for trial to
22 August 2011 with
the magistrate asking everyone including court
personnel to be present at 08h30. The appellant was however warned to
be in court
at 08h00. Neither the appellant nor his attorney, Mr.
Mabe was present in court at 8h45. A warrant for the appellant’s
arrest
was authorised and issued immediately. At 9h30, a warrant of
arrest had been executed by a court orderly and appellant was before
the court coming from the court cells.
3. He informed the court that his
attorney would not be coming since he had terminated his mandate and
that he would proceed to
conduct his own defence for trial purposes.
The appellant explanation regarding his failure to be in court at the
time warned for
was accepted and he was “acquitted.” This
however did not result in his release on warning as was the case
before.
The court informed him that his release would be subject of a
separate inquiry. The appellant asked that the same be dealt with
immediately. It was in the process of this very inquiry that counsel
for the State informed the court that the appellant would
have to
apply for bail since he has a “previous conviction of similar
nature,” making the offence to be one of those
listed in
Schedule 5. The tongue lashing given to the counsel for the State by
the presiding officer for divulging this did little
to reverse the
damage caused.
4. Once this information was divulged,
the appellant asked to bring the application for his release before a
different presiding
officer. The magistrate then addressed counsel
for the State saying, “[y]ou will now basically have to get am
quite sure
Mr. Ndleve will not object to me doing the trial because
of the information that you said.” The appellant conceded to
this
and asked that the inquiry destined for his release from custody
be dealt with before the commencement of trial saying this would
have
a bearing on his emotional state.
5. When the counsel for the State
suggested that they start with the trial because the other magistrate
would only be available
later, the appellant said “[y]es I will
succumb to the trial your honour with due respect as if I do not do
so we may have
problems with the issue of bail also entertained. So
we may proceed with trial.” Trial indeed commenced with the
appellant
pleading Not Guilty to the charge and all the alternatives.
Three witnesses gave evidence and were fully cross examined by the
appellant. He later appeared before another judicial officer and bail
was fixed for him at R5000 which he paid and was released
the same
day.
6. On the next arranged date, trial
could not proceed because the appellant had served the papers with
indications that he would
be applying for the recusal of the
presiding officer. Once the record was transcribed, the application
for the recusal of the presiding
officer was launched. The reasons
for the application were:
Failure by the presiding officer to
protect the (unrepresented) accused.
Not affording the accused equal
footing with the public prosecutor, resulting in rulings always in
favour of the State.
The presiding officer was informed of
the accused’s previous convictions.
The application for recusal was
refused by the regional magistrate.
7. As a general rule, a High Court
will not, by way of entertaining an application for review, interfere
with uncompleted proceedings
in a Lower Lourt.
1
The right of a High Court to interfere in proceedings pending before
a lower court was acknowledged in Ismail and Others v Additional
Magistrate, Wynberg and Another
2
when Steyn CJ said “although there is no sharply defined
distinction between illegalities which will be restrained by review
before conviction on the ground of gross irregularity, on the one
hand, and irregularities or errors which are to be dealt with
on
appeal after conviction, on the other hand, the distinction is a real
one and should be maintained. A Superior Court should
be slow to
intervene in unterminated proceedings in a court below and should
generally speaking confine the exercise of its powers
to ‘rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained’.
8. Issues for determination are
whether there were irregularities in the court a quo and if there
were, whether the same could result
in grave injustice. The court has
to determine if justice might not be attained by other means. Upon
perusal of the court proceedings
one realises how the court
conspicuously guarded the rights of the appellant, constantly
reminding him of all the legal provisions
even though he portrayed a
picture of a person knowledgeable in law. Though he appeared as an
accused, not as an advocate, he was
referred to by the title
“advocate” to accord him some respect. The appellant
branded the counsel for the State a liar,
3
something that went unnoticed many times, but when counsel for the
State suggested that the appellant was being economic with the
truth,
the presiding officer cautioned that “they should not get
personal.”
9. The portion alluded by the
appellant as depicting the presiding officer leaning in favour of the
State simply does not appear
from the record. The record however
shows appellant’s failure to appreciate the role of the public
prosecutor as dominis
litis and the limitations the judicial officer
has in dictating what charges he could prefer against the appellant.
It would appear
that the appellant expected the court to order the
State to proceed with the charges that the appellant had been
informed in the
past and not deviate from them even if it means
preferring less charges than initially thought. In circumstances
where other judicial
officers would have just refused to entertain
the concerns by the appellant in this regard, the presiding officer
went over board
to give a lengthy lecture and discussion with the
appellant to make sure he understood the rights of the public
prosecutor.
4
It can therefore be accepted that the appellant’s
allegations to the effect that the presiding officer demonstrated
bias in
favour of the State are baseless and with no merit.
10. One thorny
aspect is the utterances by the counsel for the State just before the
trial began to the effect that the appellant
had a previous
conviction of similar nature. Sections 89, 197, 211 and 271 of the
Criminal Procedure Act
5
are all against the disclosure of previous
convictions at any stage before the conviction of an accused person.
Section 211 in particular
provides,
“
Except where
otherwise expressly provided by this Act or the
Child Justice Act,
2008
, or
except
where the fact of a previous conviction is an element of any offence
with which an
accused
is charged, evidence shall not be admissible at criminal proceedings
in respect of
any
offence to prove that an accused at such proceedings had previously
been convicted of
any
offence, whether in the Republic or elsewhere, and no accused, if
called as a witness,
shall
be asked whether he or she has been so convicted.
”
There can be no doubt as such that for
the counsel of the State to inform the presiding officer of the
previous conviction that
the appellant had was an irregularity. The
gravity of such irregularity and whether it vitiates the right to a
fair trial that
the appellant is entitled to, is for this court to
weigh.
11. The guidelines for the recusal of
a judicial officer can be found in President of the Republic of South
Africa and Others v
South African Rugby Football Union and Others.
6
The Constitutional court said,
“
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 a litigant for apprehending that the judicial
officer, for
whatever
reasons, was not or will not be impartial.
”
(own
emphasis).
12. The Supreme Court of Appeal held
in S v Roberts
7
that the vital ingredient of a fair trial is that on hallowed
authority, justice be done and be seen to be done. In what is seen
to
be done, appearances play a varied role in the fulfilment of the need
for fairness. The appearance of bias may be enough to
vitiate a trial
in a whole or in part. In S v Bruinders
8
,
the fact that the accused knew that the magistrate who presided over
the trial knew his previous convictions since he had presided
over
his application to be released on bail, and decided not to ask for
his recusal was not good enough to cure what otherwise
is prima facie
irregular. According to this decision, presiding over a case while a
judicial officer is biased is against the constitutional
provisions
whereby a judicial officer is called upon to apply the law without
fear, favour and prejudice. Perception of bias has
the same impact as
the actual bias since it vitiates the trial proceedings.
9
13. It is a long standing practice in
our courts that for the presiding officer to be informed of the
previous convictions before
the accused is convicted constitutes an
irregularity nullifying the proceedings as a whole. In S v Mavuso
10
,
the Appellate Division set aside the conviction and the sentence
because it held that the proceedings were irregular for the same
reason.
11
In S v Mdletye
12
,
the High Court did not attach any weight to the fact that the accused
had pleaded guilty to the charge, thereby minimizing the
prejudice.
Once the previous conviction were known to the magistrate during the
questioning in terms of section 112 (1) (b) of
the Criminal Procedure
Act, it constituted irregularity and thereby nullified everything
that followed. In S v Mofokeng and Others
13
,
although evidence to the effect that the accused were guilty of
housebreaking with the intention to steal and theft was overwhelming,
the knowledge of previous convictions to the magistrate constituted
an irregularity that nullified the proceedings as a whole.
14. Although the accused is obliged to
disclose his previous convictions in a bail application, and bail
proceedings being part
of a trial record; there is an express
provision to the effect that previous convictions shall not form part
of the trial proceedings.
14
It was because of this exclusion that the Constitutional Court could
not find anything unconstitutional in the bail provisions
in section
60 of the Criminal Procedure Act.
15
15. I now turn to the facts in this
case. Given the above; there is no question about it that for a
judicial officer to continue
to preside over a criminal trial while
he or she has been apprised of the accused’s previous
convictions constitutes an irregularity.
The only question is whether
the concession by an accused person that the judicial officer may
continue with the trial cures the
irregularity. As indicated above,
the appellant conceded that the magistrate may continue to preside
over the trial before applying
for her recusal. It is important to
unpack the events that led to the concession by the appellant.
16. Once the appellant’s
previous convictions were made known to the presiding officer, she
said to the appellant, ‘…am
quite sure Mr. Ndleve will
not object to me doing the trial because of the information that you
said.’ The statement by the
presiding officer suggests that the
accused can heal the irregularity by making concessions. For the
reasons that will appear hereunder,
I do not deem it appropriate to
give an opinion regarding this statement. Presuming that the accused
can heal an irregularity by
volunteering to ignore them, the
following concerns arise in this case.
17. While conscious of the fact that
the appellant was not legally represented, was he informed by the
presiding officer that that
what the prosecutor said constituted an
irregularity, that such would disqualify her from presiding over the
trial and that such
would not happen if he makes an undertaking that
he was happy with her irrespective of the disqualification? The
answer is no.
Her statement suggests an answer for the appellant when
she says “I am quite sure…” While mindful of the
fact
that the appellant is legally qualified, we have no knowledge of
his background practice especially in criminal courts; if there
is
any. The charges he faces did not even take place in the forum of
criminal trials but some civil litigation. I am not sure as
to why
the presiding officer encouraged the appellant not to object. I guess
I would be in a position to understand the possible
harm if it was in
the middle of a trial since the recusal could mean witnesses would
have to come give evidence again. At that
stage the appellant was yet
to plead to the charge.
18. The presiding officer informed the
appellant on the day he brought the application for her recusal that
she had volunteered
not to proceed with the case offering to do the
bail application instead. Such an offer is not reflected on record.
It is however
clear that she may have thought of it but did not put
the full statement on record. This shows that she was very conscious
of what
she should do in the circumstances, but somehow thought she
did inform the appellant which unfortunately was not the case. The
statement, “[y]ou will now basically have to get am quite sure
Mr. Ndleve will not object…” may have been meant
to
inform the appellant of this, but it is obviously incomplete. It is
difficult to guess if she meant to inform the public prosecutor
that
he would now have to get a new presiding officer for trial or
something else. Of importance is that when she informed the
appellant
of the offer she thought she made, it shows she knew she had to make
that offer – to recuse herself for trial and
rather attend to
the inquiry or bail application only.
19. Now that that the appellant agreed
with the presiding officer by “succumbing” to trial with
her presiding, does
such a concession bar him from raising his
request for her recusal later? To examine this aspect, it is
necessary to look at the
circumstances of his concession. He was in
custody after his arrest following his late arrival in court. There
was an inquiry into
his late arrival and the court accepted his
explanation and “acquitted” him. Somehow, that acquittal
did not earn him
his freedom. The presiding officer told the
appellant that “as he knew…” the process for his
release would be
a separate inquiry. I do not know what she was
referring to since it is common practice for the accused to be
released on warning
again or to have bail reinstated if the
explanation for failure to be in court is accepted. When told that
the trial was about
to start, the appellant pleaded with the court to
deal with the other inquiry meant to earn his freedom because that
would have
an emotional impact on him as he conducts his defence on
trial. Given the fact that he had at that stage been acquitted, I
think
this was a fair request; but it did not happen. The trial had
to start immediately. It is because of this that the appellant
conceded
to the trial saying if he does not; his request to be
released on warning or bail may not be attended to.
20. The appellant concession shows
that had he been released before the trial started, he would have
objected to her presiding over
the trial. The court needs to guard
against an abuse by the accused who does not seek a recusal at an
appropriate time, but seeks
such recusal only when he realises the
outcome of the case has gone against him. Can it be said that the
appellant could be abusing
the system in the circumstances? The
evidence lead so far was quick and formal and was led in one day
between 10 am and lunch time.
They have not implicated the appellant
much since they are formal witnesses. If the appellant would be
implicated, it will be by
the witnesses who are yet to testify. It
could be for this reason that the State now argues that the appellant
may still be acquitted.
21. The appellant did not wait for the
trial to proceed much further. On the very next day set down for
trial, the appellant informed
the court of his intentions. I am not
convinced that that appellant could be abusing the system because he
could have waited until
the very end before bringing the application
for recusal of the presiding officer.
22. I have noted with great concern
that the incident referred to in the charge faced by the appellant
took place more than 11 years
back. Any delay in the matter
prejudices the State since witnesses may with time become
unavailable. Equally, for the witnesses
(all of them attached to
Hlanganani Magistrate Office) to come and testify again is
prejudicial to them since they have done so
already. The greater harm
the State could face however is for the trial to run its course only
to have the outcome thereof set
aside because of the irregularity
which could have been remedied at the early stages of the trial. I am
of the view that seeing
that the majority of the witnesses lined up
by the public prosecutors are yet to testify, for the trial to start
de novo would
be less prejudicial to everyone involved.
23. In conclusion, I have noted that
this regional magistrate finds herself entangled in in a web she did
not design. Like she said,
the counsel for the State should have
known better. There was just no reason for him to place on record the
appellant’s previous
convictions; especially seeing that the
court had already acquitted him of that which led to his arrest. The
appellant was not
arrested because of his previous convictions but
because he was late, and the court was happy with the reasons he
furnished. The
State was at liberty to apply for an arrest warrant of
the appellant if it believed that by virtue of his previous
convictions,
he was disqualified to be on warning. Whether the same
would be granted is another question.
24. It is also worth noting that he
informed the court during bail application that the appellant had a
previous conviction for
an offence committed in 2003. The charge
sheet reflects that he faces the charge of fraud committed on the 7th
January 2002. This
would mean that the appellant was convicted only
after he had committed the offence alleged, unlike he was
‘previously’
convicted as stipulated in Schedule 5.
25. Although the presiding officer was
not given the details of the previous conviction, in all likelihood
she knows them by now
since they form part of the bundle she had to
sign off when preparing her reasons for this application. For this
reason, and what
I stated above, I am of the view that both the State
and the appellant would suffer a substantial prejudice unless this
court intervenes
and I do not see any practical way out of it beside
the intervention.
26. I would thus make the following
order:
The proceedings pending before the
Regional Magistrate Ms. Wessels are hereby set aside.
The matter is remitted back for trial
to start de novo before another Regional Magistrate.
_____________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
I agree,
_______________________
H. FABRICIUS
JUDGE OF THE HIGH COURT
22 April 2013
APPEARANCES:
Date Heard: 22 April 2013
Judgment Delivered: 22 April 2013
For the Appellant: In Person
For the Respondent: Advocate M.J.
Makgwatha
1
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA 113
(A) at 119G and Motata v Nair No
and Another
2009 (2) SA 575
(T)
2
1963
(1) SA (A).
3
See
p. 12 line 10, p. 23 line 11, p. 24 line 25 and p. 28 line 16 of the
transcribed record.
4
See
p. 116-117 of the transcribed record.
5
Act
51 of 1977.
6
[1999] ZACC 9
;
1999
(4) SA 147
(CC).
7
1999
(2) SACR 243
(SCA) at p. 249
8
2012
(1) SACR 25
(WCC) at 29.
9
S
v Bruinders supra
, at p. 29.
10
1087
(3) SA 499
(A).
11
In
this case the public prosecutor had asked the questions to show that
the accused knows the dagga by reminding him of his previous
conviction. This was after the accused had claimed he did not know
dagga.
12
[
2005]
JOL 13933
Tk.
13
See
unreported judgment, case no. A421/11 by the Gauteng South,
Johannesburg delivered on the 12
th
October 2011.
14
See
section 60 (11B) (c) Act 51 of 1977.
15
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
at
[1999] ZACC 8
;
1999 (7) BCLR 771
(CC).