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[2008] ZAFSHC 137
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Mogaecho v Regional Court Magistrate: Meintjies and Others (A413/2007) [2008] ZAFSHC 137 (11 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application
No. : A413/2007
In the
matter
between:-
ARTHUR
ITUMELENG MOGAECHO
Applicant
versus
REGIONAL COURT
MAGISTRATE:
MRS
MEINTJIES
First
Respondent
THE
DIRECTOR OF PUBLIC
Second Respondent
PROSECUTIONS
EDWARD
MONGEZI NDONGA
Third
Respondent
JOHANNES
TSIETSI RAMETSE
Fourth
Respondent
MA
URICE
NTOZIMBI RENS
Fifth
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
PLOOS
VAN AMSTEL, AJ
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE, J
_____________________________________________________
HEARD
ON:
24
NOVEMBER 2008
_____________________________________________________
DELIVERED
ON:
11
DECEMBER 2008
_____________________________________________________
[1] This
is an application for the review and setting aside of the refusal of
the first respondent to recuse herself from the criminal
trial in the
regional
court in which the applicant is being tried as accused number one.
The third, fourth and fifth respondents are the other
accused persons
in the case, but they play no role in this application. The first
respondent abides the decision of this Court
but the application is
opposed by the second respondent, that is the prosecuting authority.
[2] The
applicant served as a public prosecutor since 4 October 1999. During
2002 he was stationed at Botshabelo. One Mr. Ishmael
Motaung was at
that stage the control prosecutor at Botshabelo. Two of the
magistrates serving at the magistrate’s court
in Botshabelo at
the time were Mr. L.M. Bothma and Ms W.C. le Roux. The applicant and
his co-accused were charged with 27 counts
of fraud and alternative
charges of theft. The essential nature of the allegations against
them is that the accused persons conspired
to and appropriated
traffic fines paid in cash by members of the public, by fraudulently
misrepresenting that the fines had been
reduced as a result of
representations made.
[3] The
matter was at all times heard at Botshabelo and has become quite
protracted. After the close of the state case, the attorney
for the
applicant as well as the attorneys acting for the third, fourth and
fifth respondents, applied for the discharge of their
respective
clients in terms of
section 174
of the
Criminal Procedure Act, No. 51
of 1977
. These applications were opposed by the prosecutor and
refused, with the exception of count 17. On this count all the
accused
were discharged because of lack of any evidence presented in
respect thereof.
[4] Thereafter
the applicant was called to testify. The applicant testified and was
cross-examined over a number of days. On 9
March 2006, at a stage
when according to the prosecutor he was just about to conclude his
cross-examination, the attorney for the
applicant withdrew from the
case with the concurrence of the applicant. The attorney at the time
indicated that he withdrew in
the interest of justice and to protect
his own integrity. The applicant then indicated that he will conduct
his own defence and
that he intends to bring an application for the
recusal of the first respondent. Nevertheless, arrangements were
made for the
applicant to apply for legal aid and, after it was
refused, to appeal against the refusal. On 24 March 2006 the
applicant indicated
that he was not proceeding with the appeal
against the refusal of legal aid and insisted on carrying on in
person. The applicant
then presented an extensive application for
the recusal of the first respondent on the basis of a written
document that he had
prepared. The application was opposed by the
prosecutor and on 18 May 2006 the first respondent delivered judgment
refusing the
application for recusal. The trial has subsequently
been postponed on many occasions pending the finalisation of the
present application.
[5
] The
record of the proceedings in the regional court that was placed
before us, commences with the closure of the state case and
extends
far beyond the 18
th
of May 2006, when the matter was postponed in order to afford the
applicant the opportunity to launch the present review proceedings.
It appears that some portion of the cross-examination of the
applicant does not form part of this record, as the matter was on
22
September 2005 postponed to 24 November 2005, but the record resumes
only on 2 March 2006. No party, however, made anything
of this at
any stage. In the circumstances I believe that we have to accept
that what was placed before us are the portions of
the record of
proceedings necessary for the purposes of the review as envisaged in
rule 53(3).
It should be added that we have before us approximately
200 transcribed pages of the evidence of the applicant over a period
of
more than three days. The first respondent furnished additional
reasons in terms of
rule 53(1)(b).
[6] Answering
affidavits to the applicant’s founding affidavit in this
application were deposed to by advocate J.P. Du P.
Botha, the
prosecutor at the trial, Mr. Ishmael Motaung, Mr. L.M. Bothma and Ms
W.C. le Roux. In a brief replying affidavit the
applicant said that
he denies all allegations contained in the answering affidavits that
are inconsistent with his founding affidavit.
[7] It
is a fundamental feature of the proper administration of justice that
judicial officers judge impartially. Therefore, even
if there is
only a reasonable apprehension that the judicial officer will not
judge impartially, the judicial officer should recuse
himself or
herself from the proceedings. If not, the proceedings are vitiated
entirely as the judicial officer then
“
commits an irregularity in the
proceedings every minute he remains on the bench during the trial of
the accused.”
The
test, however, is objective, namely that of a reasonable person in
the position of the particular litigant. There must therefore
be
shown an apprehension of bias that objectively rests on reasonable
grounds and the onus to show that, rests on the particular litigant,
here the applicant. See
BTR
INDUSTRIES SOUTH AFRICA (PTY) LTD AND OTHERS v METAL AND ALLIED
WORKERS' UNION AND ANOTHER
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at 690A – 695E;
MOCH
v NEDTRAVEL (PTY) LTD t/a AMERICAN EXPRESS TRAVEL SERVICE
1996 (3) SA 1
(A) at 8H – 9G;
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) at 175B – G.
[8] In
support of the allegation that the applicant harboured a reasonable
suspicion that the first respondent would not adjudicate
impartially,
four main aspects were relied upon, namely
(i) contact between the
first respondent and the state witness, Mr. Ishmael Motaung;
(ii) contact between the
first respondent and magistrates Bothma and Le Roux;
alleged
extra-curial contact between the first respondent and the
prosecutor;
failure
by the first respondent
to
curtail alleged unfair cross-examination by the prosecutor.
I deal with these aspects
in turn.
[9] Mr.
Motaung had since the events that led to the charges against the
applicant been transferred to Pretoria. He therefore had
to return
to Botshabelo in order to testify at the trial. In his founding
affidavit in this application the applicant said that
when Mr.
Motaung came to testify he would during tea and luncheon breaks visit
the tearoom at the magistrate’s court where
the local
magistrates as well as the first respondent had tea and lunch. In
his address in support of the application for recusal,
the applicant
stated that he wished to indicate that although he could not say that
the first respondent had any contact with Mr.
Motaung, he had the
suspicion that the first respondent had such contact. He never said
what the source of these allegations were,
so that it cannot be
judged whether it was reasonable to rely thereon.
[10] It
is obviously undesirable for judicial officers to be seen outside of
court in the presence of a witness in a case serving
before the
judicial officer. What should result therefrom however depends on
the particular facts of each case. In this application
several
witnesses have confirmed under oath what was stated in this regard by
the prosecutor in his address in opposition of the
application for
recusal as well as by the first respondent in her judgment on that
application. These facts are that Mr. Motaung
went to the relevant
tearoom to greet old friends and colleagues, as it was put by Mr.
Motaung. The first respondent, who was
unknown to Mr. Motuang, was
present in the tearoom. Mr. Motaung was introduced to the first
respondent and it was then established
that she was in fact the
presiding officer in the matter in which Mr. Motaung had been called
to testify as a witness. Mr. Motaung
immediately exited the tearoom
and did not return thereto at any time. He had not been in the
tearoom for more than one or two
minutes. Counsel for the applicant
before us expressly, and correctly in my view, conceded that the
matter must be adjudicated
upon on these facts. I believe that it is
clear that a person in the position of the applicant could not
reasonably apprehend
bias on the part of the first respondent on
these facts.
[11] It
is common cause that during the trial the first respondent at teatime
and during luncheon shared the tearoom with
inter
alia
the local magistrates Bothma and Le Roux. The complaint of the
applicant is directed at the fact that both Mr. Bothma and Ms Le
Roux
made affidavits in respect of the case to a member of the South
African Police Services, although neither testified at the
trial.
According to the applicant the first respondent therefore had contact
with potential state witnesses. The applicant also
said that he had
serious and bitter arguments with Mr. Bothma and that as a result he
entertained a fear that Mr. Bothma could
negatively influence the
first respondent in respect of the matter.
[12] It
is undisputed that each of the said affidavits were very brief and
only dealt in general terms with the working of the office
administration of magistrate’s courts. It is furthermore
undisputed that the applicant was in no way implicated in any of
these affidavits and that the applicant had access to these
affidavits in terms of his right to access to the case docket and
witness statements.
[13] I
accept for purposes hereof that the applicant reasonably believed
that Mr. Bothma disliked him and did not wish him any good.
There is
no allegation from the applicant that Mr. Bothma knew anything about
the case against the applicant.
[14] The
real question here, however, is whether the applicant could
reasonably believe that the first respondent would allow the
case to
be discussed in the tearoom in any manner that could influence the
decision of the case. The objective facts are that
the first
respondent is a regional magistrate who was specifically brought to
Botshabelo to hear the case because she had little
or no knowledge of
the personnel and circumstances at the Botshabelo magistrate’s
court. This would have been appreciated
by a reasonable person in
the position of the applicant. In these circumstances I do not
believe that objectively there was any
ground for a belief that the
first respondent could be influenced in respect of the decision of
the case by discussions in the
tearoom with Mr. Bothma and Ms Le
Roux. For the record it should be stated that it was denied by all
concerned that the case was
ever discussed as alleged and that Mr.
Bothma denied the allegations of bad blood between himself and the
applicant.
[15] When
the state case was closed, the attorney for the applicant indicated
that an application for the discharge of the applicant
will be made
in terms of
section 174
of the
Criminal Procedure Act. In
the event
several months went by before the application was actually made.
During that time the applicant met the prosecutor at
the offices of
the Director of Public Prosecutions in Bloemfontein. On this
occasion the prosecutor told the applicant that he
could not wait to
cross-examine the applicant, to which the applicant replied that
before that could happen there will be an application
for his
discharge. The prosecutor then said that it would be a waste of time
because the first respondent will not grant the application.
When
the application was eventually argued, the first respondent was not
paying any attention, according to the applicant and
the application
was dismissed immediately after conclusion of argument. This, the
applicant says, created a fear in him that the
application for
discharge was discussed beforehand between the prosecutor and the
first respondent. The applicant also says that
during the trial the
prosecutor used to park his vehicle in front of the building but that
during the time of his cross-examination,
the prosecutor used the
parking area of the magistrate’s court.
[16] A
discussion of a case with an accused person by a public prosecutor in
this fashion is probably best avoided. However, in
this matter the
applicant and the prosecutor were in fact colleagues and the
conversation reminds one of not uncommon banter between
opposing
colleagues. In my judgment there was objectively no reason to
believe that what was said about the fate of the application
for the
discharge, was anything other than the opinion of the prosecutor.
[17] As
mentioned above, the first respondent was informed of the intention
to launch the application for discharge some months
before it was
actually brought. In the event the application was fully argued by
the attorneys for all the accused persons as
well as the prosecutor.
The statement by the first respondent that she kept herself abreast
of the evidence, cannot be rejected
and must be accepted. In the
result it was quite reasonable to expect that the first respondent
could give a ruling on the application
for discharge immediately
after conclusion thereof. This is not at all uncommon nor is it
uncommon, and sometimes even advisable,
not to give reasons for
dismissal of an application for discharge at the time but to provide
such reasons in the main judgment
at the end of the case. The
statement by the first respondent and the evidence by the prosecutor
that the first respondent in
fact did pay attention to the arguments,
is not only probable but cannot be rejected and must be accepted for
purposes of determination
of this application. The applicant was in
fact discharged on the charge in respect of which there was no
evidence placed before
the court.
[18] The
prosecutor said that he moved from the parking bays in front of the
magistrate’s court to those in the back as he
was intimidated
by unknown individuals and this is not denied. In respect of the
parking therefore, the case of the applicant
amounts to no more than
that at some stage the first respondent and the prosecutor made use
of the same parking area at the magistrate’s
court. This
happens as a matter of practicality every day at many magistrates’
courts all over the country and in my judgment
objectively amounts to
nothing.
[19] I
conclude therefore that the applicant had no reasonable ground for
believing that the first respondent had discussed the
application for
discharge extra-curially with the prosecutor or that she was biased
in respect thereof for that reason or any other
reason.
[20]
It should again for the record be stated that both the first
respondent and the prosecutor emphatically denied that they had
any
discussion about the case other than during the court proceedings.
[21] It
is alleged by the applicant that the first respondent failed to curb
unfair cross-examination of the applicant by the prosecutor.
In this
regard he particularly relied upon cross-examination regarding the
evidence of the state witnesses, Mr. Ramoepane and
Mr. Sepoko
respectively, which will be examined in more detail below. The
applicant also said that the prosecutor made use of
“bullying
tactics” and that on occasion during cross-examination the
prosecutor shouted at him. He added that several
objections during
his cross-examination by his attorney were overruled by the first
respondent without justification. All of these
allegations are of
course to no avail as basis for an apprehension of bias, if they are
factually incorrect. The acceptability
of these allegations of the
applicant must therefore firstly be considered.
[22] The
applicant during cross-examination admitted that his signature
appeared on the summons in respect of the traffic fine issued
to Mr.
Ramoepane as well as on the control document thereof kept at the
magistrate’s court offices. He admitted that he
reduced the
fine of Mr. Ramoepane to an amount of R50,00. The prosecutor then
put to the applicant that according to the evidence
of Mr. Ramoepane
he actually paid an amount of R150,00 by leaving it on a table as
instructed. The implication hereof was that
only the amount of
R50,00 was paid at the clerk of the court and that the balance was
appropriated. In answer hereto the applicant
pointed out that Mr.
Ramoepane had testified that he left the money on the table in the
building in which the magistrate’s
court was previously housed,
in other words not at the building where the applicant worked as a
prosecutor at the time. In response
hereto the prosecutor put to the
applicant that Mr. Ramoepane possibly erred when he made reference to
the previous building, as
it was common cause that the signature of
the applicant appeared on the summons that was issued to Mr.
Ramoepane. On another occasion
the prosecutor put it to the
applicant that he thinks that Mr. Ramoepane erred in respect of the
building. To both questions the
applicant in effect answered that he
had no knowledge of an arrangement with Mr. Ramoepane to put money on
any table. No objection
was made hereto by the applicant’s
attorney and clearly none was justified.
[23] The
complaint in respect of the cross-examination in respect of the
evidence of Mr. Sepoko is similarly without merit. Again
the
applicant admitted that the fine of Mr. Sepoko was reduced on the
summons, exhibit “N”, by the applicant, to a
sum of
R50,00. During cross-examination on this point the applicant pointed
out that Mr. Sepoko had testified that the applicant
had reduced the
fine in his presence to the amount of R200,00. The prosecutor
responded by putting to the applicant that it is
clear from the
objective evidence, namely exhibit “N”, that Mr. Sepoko
made a mistake in respect of the amount to which
the fine was
reduced. To this the attorney of the applicant objected but the
objection was overruled by the first respondent.
In my judgment the
ruling of the first respondent was correct. This did not amount to
unfair cross-examination at all, on the
contrary, the prosecutor had
given the applicant an opportunity to respond to what he would argue
in respect of the evidence of
Mr. Sepoko. The applicant answered
that Mr. Sepoko did not make a mistake.
[24] I
found no evidence on the record of any bullying tactics employed by
the prosecutor. The statement of the first respondent
that the
prosecutor had never shouted at the applicant, must be accepted for
purposes hereof. I also found no objections made
by the applicant’s
attorney that were overruled without objective justification.
[2
5] Finally,
the applicant said in his founding affidavit that he made a formal
application in court for legal representation to
be provided to him
by the Legal Aid Board, which application was turned down. The
applicant says that he then enquired from the
first respondent
whether he had the right to appeal against the decision and the first
respondent responded by saying that she
was not there to provide the
applicant with legal advice. In fact, according to the record, the
applicant requested the first
respondent to perhaps try to find out
whether there was a possibility of appealing against the refusal. To
this the first respondent
responded by saying she is not going to
find that out and that she was not there to provide the applicant
with legal advice. It
is unnecessary to go into this any further,
nor into the comprehensive factual background against which this took
place, as this
took place on 15 September 2006, long after the
application for recusal was refused on 18 May 2006.
[26] For
these reasons the application cannot succeed and is dismissed with
costs.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
________________________
C. PLOOS VAN AMSTEL,
AJ
On behalf of the
applicant: Adv. N.R. Rathidili
Instructed by:
Moroka Attorneys
BLOEMFONTEIN
On behalf of the second
respondent: Adv. P.U. Fischer
Instructed by:
The State Attorney
BLOEMFONTEIN
/sp