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[2011] ZANCHC 15
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Witbooi and Others v Regional Court Magistrate: NC an Another (2125/09) [2011] ZANCHC 15 (26 August 2011)
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IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
CASE NO: 2125/09
In the matter
between:
FREDDY VELELO
WITBOOI
…......................................................................
1
ST
APPLICANT
ROSS KIRBY HENDERSON
…........................................................................
2
ND
APPLICANT
ITUMELENG JACK
MOROKO
…....................................................................
3
RD
APPLICANT
AND
REGIONAL COURT
MAGISTRATE: NC
…................................................
1
ST
RESPONDENT
THE DIRECTOR OF
PUBLIC PROSECUTION
….....................................
2
ND
RESPONDENT
Coram:
Tlaletsi J et Hughes-Madondo AJ
__________________________________________________________________________
Date of hearing : 12
August 2011
Date of judgment :
26 August 2011
JUDGMENT
TLALETSI J
[1]
This
is an opposed application for review in terms of Rule 53
1
.
The applicants are seeking orders on the following terms:
1.1 The first
respondent, Regional Magistrate S O Du Plessis’ decision on 06
November 2009 not to recuse himself from the
criminal proceedings in
the Regional Court Kimberley under case no: RCO 190/1998 be reviewed
and set aside;
1.2 The first
respondent, Regional Magistrate S O Du Plessis is ordered to recuse
himself from the case;
1.3 The conviction
of the applicants under case no; RCO 190/1998 is hereby set aside and
the case is referred to the second respondent
to consider whether to
prosecute them
de novo
;
1.4 Further and/or
alternative relief;
1.5 Any of the
respondents that opposes the application to pay costs jointly and
severally, the one paying the others to be absolved.
[2]
The application is
opposed by the first respondent. Once again for unexplained reasons,
the second respondent who had served and
filed a Notice to oppose the
review application through the office of the State Attorney filed a
notice to abide by the decision
of this Court on the hearing of the
application. One would ordinarily expect the second respondent, whose
mandate is to represent
and prosecute on behalf of the people of this
country, to play an active role and assist this Court to arrive at a
just decision.
As reflected in the previous review judgment that I
will refer to in the course of this judgment, the second respondent,
to the
surprise of that Court, withdrew from the proceedings at the
commencement of the hearing.
[3]
A brief historical
background is apposite for the better understanding of the
proceedings and the issues. In light of our decision,
it shall not be
necessary to set out a detailed chronology of events that led to this
application.
3.1 The applicants
appeared before the regional court on 12 April 1994 on fraud and
theft charges. The applicants pleaded on 28
October 1999. After at
least two postponements
3.2 The second
respondent presented evidence from 15 November 1999 and closed its
case during the period 06-07 February 2001. On
this occasion an
application for discharge in terms of
section 174
of the
Criminal
Procedure Act 51 of 1977
(“the CPA”) was made and was
subsequently declined.
3.3 From 09 February
2001 the trial experienced several postponements for various reasons.
However, on some of the appearances the
applicants presented their
evidence. The applicants’ cases were closed and reopened on
different dates and occasions. The
legal representatives of the
applicants were also changed on no less than two occasions. During
this period the applicants also
brought applications for the recusal
of the first respondent which were not successful.
3.4 On 10 February
2006 the first respondent delivered his judgment of the trial. He
acquitted the applicants on some of the charges
and convicted them on
others. The trial was then supposed to proceed to sentencing
proceedings.
3.5 On 01 February
2007 the applicants brought an application in terms of
section 304A
of the CPA in which they sought their trial be sent by the first
respondent to this Court for special review. The application was
declined by the first respondent.
3.6 After several
appearances in the regional court the applicants launched a
Rule 53
review application (“the first review application”) which
was heard on 26 June 2008. They sought to review and set
aside the
first respondents refusal to recuse himself on five separate
occasions during the course of the trial. They also made
allegations
of bias on the part of the first respondent as well as other alleged
gross irregularities during the trial. The applicants
sought orders
similar to the ones sought in this application.
3.7 The Review Court
(per
Majiedt et Olivier JJ
) delivered a detailed judgment on
01 October 2008 in which they dismissed the review application with
costs.
3.8 The applicants
sought and were refused leave to appeal by this Court on 10 October
2008.
3.9 The applicants,
aggrieved by the decision of this Court, petitioned the President of
the Supreme Court of Appeal for leave to
appeal. Their Petition was
dismissed on 15 January 2009 with costs.
[4]
On 31
July 2009 the applicant appeared before the first respondent
represented by
Adv Claasen
. On this day another application
for the recusal of the first respondent was launched.
Adv Claasen
handed up the following documents to support the application for
recusal. An affidavit by second applicant in the first review
application; an affidavit by
Mr Horold Robertson
, an attorney
who had been representing the second applicant during the trial and
the first review application but withdrew as his
attorney on 06 March
2009 when the matter was postponed to 31 July 2009; an affidavit by
Adv. Ferdinand Van Heerden
the advocate who represented first
applicant and appeared for all three applicants in the first review
application in this Court
and the affidavit of the first respondent
filed in opposition to the first review application. After the
presentation of arguments
by
Mr Claasen
as well as the public
prosecutor in opposition of the application, the proceedings were
postponed to 02 September 2009 and later
to 06 November 2009.
[5]
On 06
November 2009
Adv Cronje
appeared on behalf of the applicant.
He proceeded with the application for recusal started by
Adv.
Claasen
. The basis of the recusal application was in the main
about an allegation by second applicant that he on one occasion
during the
trial, saw the first respondent in the office of the
control prosecutor in the company of the public prosecutor and the
investigating
officer. This issue was one of the grounds on which the
previous application for recusal was based and was refused by the
first
respondent. Furthermore, the same issue was one of the issues
that was the subject of the first review application.
[6]
The
applicants contended that because the first respondent, the public
prosecutor and the investigating officer had, (in their
affidavits
filed in the first review application) denied the allegations made by
the applicants about the said meeting, the applicants
had to obtain
the affidavits of
Mr Robertson
and
Adv Van Heerden
to
support their allegations. The second applicant alleged that after
noticing the presence of the three in the control prosecutor’s
office a report to
Mr Robertson
was made in the presence of
Adv Van Heerden
.
Mr Robertson
thereafter in the company
of
Adv Van Heerden
approached the first respondent in his
chambers about the allegations. The first respondent is said to not
have denied the allegation
about the meeting, but merely indicated
that he had only gone there to inform the public prosecutor that he
was going to have tea.
Mr Robertson
and
Adv Van Heerden’s
affidavits confirmed what the second respondent reported to them and
that the matter was taken up with the first respondent.
[7]
The
applicants requested that the first respondent should refer the issue
to oral evidence as there were conflicting versions between
the
applicants and the first respondent and the prosecutor on the other
hand. The second ground for recusal was that since the
first
respondent had deposed to an affidavit in opposition to the first
review application, he had made himself a witness in the
proceedings
in which he is presiding and is not in a position to make any
credibility findings in the criminal trial.
[8]
This
application for recusal and referral to oral evidence was refused by
the first respondent on the basis that,
inter alia
, the same
issue that the applicants have raised has been decided by this Court
in the first review application. It is this decision
of the first
respondent that the applicants are seeking to have reviewed and set
aside and be accorded further relief set out above.
[9]
In this
Court
Mr Cronje
who appeared on behalf of the applicants
contended that the first respondent erred by not considering the
merits of the application
for his recusal. That the first
respondent’s version of the events of 8 December 2004 where he
was alleged to have been in
the same office with the investigating
officer and the public prosecutor were in contrast with the version
of second applicant
as well as that of
Adv Van Heerden
and
Mr
Robertson
.
Mr Cronje
submitted that the question remains,
why would first respondent deny the incident in light of the
affidavits of
Mr Robertson
and
Adv Van Heerden
in which
they state that first respondent said that he merely went to that
office to inform the public prosecutor that he was going
to have tea.
[10] Adv Van der
Walt
who
appeared on behalf of first respondent made the following
submissions. Firstly, that the issue that the applicants are raising
is
res
judicata
alternatively,
that they are barred
from raising it by the principle of
estoppel
because the issue
was the subject of review before the full bench of this Court and has
been determined. The first respondent and
this Court cannot revisit
that decision. Secondly, that an objective, informed and reasonable
person would given the history and
circumstances of this case, not
have reasonable apprehension that the first respondent would in the
finalisation of the proceedings
in the regional court be partial.
[11]
In
Wahlhaus
v Additional Magistrate Johannesburg
2
the court held that
the High Court by virtue of its inherent power to restrain
illegalities in inferior courts, may in a proper
case grant relief by
way of review, interdict, or mandamus against the decision of a
magistrate’s court given before conviction.
However, the High
Court would be very reluctant to interfere with uncompleted
proceedings except in exceptional instances where
serious injustice
would otherwise occur or where justice cannot be attained by others
means.
3
The rationale of
this general rule is,
among
others, to avoid piecemeal finalisation of reviews or appeals from
lower courts. It is important to state that the power to
interfere is
a discretionary power which will be considered in light of the facts
and circumstances of each case.
[12]
We
pointed out to
Mr Cronje
that the affidavit of
Mr Robertson
was already in existence at the time when the first review
application was argued. The said affidavit together with the
replication
by second applicant was presented to the Court. At the
commencement of the hearing
Mr Van der Walt
moved an
application for a postponement at the costs of the applicants for
first respondent to be able to deal with what he referred
to as new
matters in the two documents. It is common cause that
Adv Van
Heerden
asked for an adjournment to obtain instructions and on
the resumption of the hearing withdrew the affidavit of
Mr
Robertson
and the replication by second applicant. The matter was
decided without these affidavits. In confirmation of these events,
Majiedt J
had the following to say:
“
5.3
In summary therefore, as regards the affidavits before us;
(a) A
supplementary affidavit of the [second applicant] was filed, not in
the usual procedural manner and form as contemplated in
Rule 53(4)
(i.e. to supplement the original affidavit as a consequence of the
record of proceedings having become available), but purely in
response to allegations contained in [Public Prosecutor’s]
(late) answering affidavit.
(b) The replying
affidavits are to be regarded as pro non scripto for purposes of the
hearing and this judgment since the applicants
have expressly
disavowed reliance on it.”
[13]
One can safely say,
without deciding the contents of the affidavit of
Mr
Robertson
,
the applicants had an opportunity to have the issues raised therein
determined by the full bench of this Court. It is common cause
that
Adv
Van Heerden’s
affidavit
is merely confirming the averments made by
Mr
Robertson
in
his affidavit.
[14]
Mr Cronje
conceded that the
full bench could have determined the issue but that the applicants
are not precluded from raising the issue before
the first respondent.
In response to the submission that the affidavit relate to the same
issue which was the basis of the previous
review application and that
the affidavit merely provided further evidence of the issue that has
been determined.
Mr
Cronje
submitted
that the applicants are relying, for the basis of the recusal
application, on the confrontation
Mr
Robertson
made
in the first respondent’s office in the presence of
Adv
Van Heerden.
[15]
I am of the view
that it would not be proper to decide the issues raised in this
review application at this stage. This is a case
in my view, where
there is evidence of piecemeal adjudication of the proceedings which
process should not be countenanced further.
The proceedings in the
regional court are already at an advanced stage and it is only the
question of sentence which has to be
concluded.
[16]
It would be in the
interest of the applicants as well as the public to have the pending
proceedings completed. Failure to do so
in the circumstances of this
case has the potential of compromising public confidence in the
criminal justice system.
Krigler
J
in
a unanimous decision of the Constitutional Court had the following to
say in
Ex
Parte
Minister
of Safety and Security
:
In re
S
v Walters
[2002] ZACC 6
;
2002
(4) SA 613.
4
“
[63]
The result is most unfortunate. It is an established principle that
the public interest is served by bringing litigation to
a close with
all due expedition. The law and the judicial process, in performing
their vital conflict-resolution role, must provide
a structure and
mechanism whereby conflicts can be resolved and their consequent
tensions can be relieved openly, fairly and efficiently.
Delays and
interruptions in the smooth course of litigation inevitably frustrate
the proper performance of this role: justice delayed
is justice
denied. It is all the more true in criminal cases, particularly those
involving serious charges where the stakes are
high and tensions
commensurately heightened. And, of course, while complainants,
next-of-kin, other interested parties and the
public at large have a
material interest in having timeous closure, accused persons are
constitutionally entitled to be tried with
reasonable expedition.”
[17]
Once the
proceedings before first respondent are completed, the applicants
have recourse to this Court by way of appeal or review
where the
entire proceedings would be considered holistically. Further and new
grounds for either review or appeal may be raised
at that stage which
may included what would have happened during the sentencing
proceedings.
[18]
As
pointed out the issue the applicants are raising has either been
raised and determined or they had an opportunity for it to
be
determined by the full bench and they elected to withhold it. Having
made an election the applicants should not be allowed to
dictate that
their issues be determined piecemeal. Finally, the criminal
proceedings come a long way, having commenced during April
1994.
There has to be finality at some stage.
[19]
For the
above reasons I am of the view that the applicants have not shown
that there are exceptional reasons that warrant the exercise
of the
discretion to interfere in the uncompleted proceedings before the
first respondent in their favour. I have deliberately
avoided
deciding the issues raised and left them for determination in future,
if need be. However, since the applicants have not
succeeded in the
relief they sought, there is no reason why costs should not follow
the result.
[20]
In
the result I make the following order:
“
The
application for review is dismissed with costs jointly and severally
the one paying the others to be absolved.”
___________________
L P TLALETSI
JUDGE
I concur.
___________________
W HUGHES-MADONDO
ACTING JUDGE
Appearances:
On behalf of the Appellant : Adv
P R Cronje
Instructed
by : Engelsman Magabane Inc.
On
behalf of the Respondent
:
Adv Van Der Walt
Instructed by :
Duncan & Rothman Attorneys
1
Rules
Regulating the Conduct of the Proceedings of the Several Provincial
and Local Divisions of the Supreme Court of South Africa.
2
1959
(3) SA 113(A)
at 119H-120A
3
See
also:
Building improvements Finance Co. (Pty) Ltd v Additional
Magistrate
,
Johannesburg
1978 (4) SA 790(T)
at 793 F-H;
Herbstein & Van Winsen
: The Civil Practice of the High
Courts of South Africa 5
th
Edition, Vol:2 (Juta) at 1270.
4
2002(4)
SA 613 (CC) at 647 e-g [para 63]; see also
Campus Law Clinic,
University of Kwazulu-Natal v Standard Bank of South Africa
(Ltd) and Another
[2006] ZACC 5
;
2006 (6) SA 103
(CC) at 113 e-g [para 23].