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[2013] ZAFSHC 187
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Farmsecure Grains (Pty) Ltd v Du Toit (A9/2013) [2013] ZAFSHC 187 (13 August 2013)
IN THE HIGH
COURT, REPUBLIC OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. : A9/2013
In the matter between:-
FARMSECURE GRAINS (PTY)
LTD
.......................................................
Appellant
and
JOHANNES PETRUS CORNELIUS DU
TOIT
...................
................
Respondent
HEARD
ON:
.......................................................
13
AUGUST 2013
JUDGMENT
BY:
................................................
RAMPAI,
J
DELIVERED ON:
[1] The appellants are three of the
five accused who were tried together in the court a quo. Their two
co-accused are not before
us in these appeal proceedings. The one
has since died. The other acquitted at the end of the very long
trial. During the trial
the accused unsuccessfully applied that
trial judge recuses herself. On appeal only the fir appellant
persisted with such an application.
The second and the third
appellants no longer pursued such relief. The respondent opposes the
application.
[2] This dimension of the judgment is
exclusively devoted to the recusal component of the appeal. The
argument pertaining to the
application for the separation of trials
on the one hand and the substantive merits of the appeal on the other
hand will be considered
elsewhere.
[3] The record revealed that the
application for the recusal of the trial judge was launched on the
17th November 2008. By then
the prosecution case was closed although
the first and the second appellants had already testified the defence
case was not as
yet closed.
[4] I deem it necessary to profile the
role players: Mr Andries Joe Masoanganye, was the first appellant.
He was accused number
1 in the court a quo. At the time of his
arrest he was die Master of the High Court at Mafikeng. At the time
he was convicted
he was in the employ of the South African Nursing
Council where he worked as a legal advisor. He was initially
represented by
Adv. Mojuto who was later replaced by Adv. S Booysens
SC. He has been in custody since his conviction. Before us Adv. N
Skibi
appeared on his behalf.
[5] Mr Abdul Kader Ahmed was accused
number two. In the appeal he is second appellant. He an attorney by
profession. He privately
practised law at Mafikeng at the time of
his arrest. Initially he was legally represented by Adv. S Vermeulen
SC. He is still
out on bail. Before us Adv. T. Nkhahle appeared on
his behalf.
[6] Ms Tlaleng Alina Mhlekwa was
accused number 3. Before us she is the third appellant. She was the
deputy Master of the High
Court at Mafikeng at the time of her
arrest. She is currently still employed in the same capacity, but in
Bloemfontein. She is
still out on bail pending the outcome of this
appeal. Adv. Venter appeared on her behalf.
[7] Ms Keatlaretsi Grace Mooketsi was
accused number 4. She is not before us in this appeal. She was
found not guilty in respect
of all the charges. She was employed as
an administrative clerk in the office of the Master of the High Court
at Mafikeng. Initially
she was legally represented by Adv. Roothman.
[8] Mr Gaolaolwe Theophilus Mogape was
accused number 5. He was a para-legal employed by attorney A. K.
Ahmed at Mafikeng. Initially
he was also legally represented by Adv.
Roothman. He was not before us in this appeal because he was since
died.
[9] Initially Mr Mdabula and with him
Adv Basson appeared for the state in the court a quo. Lateron they
were replaced by Adv Ndimande.
Before us Adv. Carpenter appeared on
behalf of the respondent.
[10] The first appellant was convicted
in respect of five counts of theft; 1 count of conspiracy to commit
the offence of theft;
and 1 count of defeating the ends of justice.
The court a quo refused to extend his bail pending the outcome of his
appeal. Against
such refusal he applied to the SCA without success.
[11] In his pre-conviction sworn
statement which he made at Mmabatho on the 17th November 008 in
support of his application that
the trial judge recused herself from
the proceeding he express concern that the judge was biased in favour
of the prosecution and
that the judge had already pre-judged his
guilt. He complained therefore that the trial judge had thereby
infringed his fundamental
right to a fair trial.
[12] The recusal application was
initiated by accused number two and supported by accused number one
and number three. The application
was turned down.
[13] There were various grounds on
which the appellant(s) relied in support of the application that the
judge recuses herself.
I shall revert to them in due course.
[14] Mr Skibi, counsel for the first
appellant, argued on appeal that the first appellant was, on account
of the irregular conduct
complained of reasonably apprehensive at the
court a quo was biased and that any reasonable member of the public
who had witness
the trial proceedings were conducted would have
reasonably feared that the accused were unlikely to receive a fair
trial. Counsel
argued that a proper case was made out in the court a
quo for the early recusal of the trial judge. Accordingly counsel
submitted
that the refusal application was incorrectly refused. He
also submitted that by continuing with the trial afterwards the court
a quo committed an appealable irregularity.
[15] But Mr Carpenter, counsel for the
respondent, sharply differed. According to counsel, the recusal
application was correctly
refused. He argued that the appellant(s)
apprehension of bias was not reasonable and that the appellant’s
did not pass the
double test of reasonableness. The grounds upon
which the recusal applications were based were not founded on any
cause whatsoever
let alone a reasonable one. So argued counsel for
the respondent. Accordingly counsel submitted that no proper case
had been
made out to justify any appellate interference with the
refusal of the court a quo to recuse itself.
[16] It
_________________
M. H. RAMPAI, AJP
On behalf of applicant: Adv. P. J.
Heymans
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
On behalf of
respondent:
...................
Adv.
C. Snyman
Instructed by:
Graham Attorneys
BLOEMFONTEIN
/eb