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[2008] ZANCHC 36
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Henderson and Others v Regional Magistrate: Northern Cape and Another (1332/2007) [2008] ZANCHC 36 (1 August 2008)
Reportable: Yes / No
Circulate to Judges:
Yes / No
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Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 1332/2007
Date
heard: 2008-06-26
Date
delivered: 2008-08-01
In
the matter of
:
ROSS
KIRBY
HENDERSON FIRST
APPLICANT
FREDDY VELÉLO WITBOOI SECOND
APPLICANT
ITUMELENG
JACK MOROKA THIRD APPLICANT
versus
REGIONAL
MAGISTRATE : NORTHERN CAPE FIRST RESPONDENT
THE
DIRECTOR: PUBLIC PROSECUTIONS
NORTHERN
CAPE SECOND RESPONDENT
Coram:
MAJIEDT
J
et
OLIVIER
J
JUDG
MENT
MAJIEDT J:
A.
INTRODUCTION
1. This
is an opposed Rule 53 review application, concerning
,
inter
alia
,
the First Respondent’s refusal to recuse himself (recusal
applications were brought and dismissed on five separate occasions
during the course of the trial) and allegations of bias on the part
of First Respondent, as well as alleged gross irregularities
during
the trial. While both Respondents had opposed the application, quite
surprisingly the Second Respondent withdrew from the
proceedings at
the commencement of the hearing.
2.1 The criminal trial
forming the subject matter of this review has not been finalised –
it has been interrupted during the
sentencing stage by this review
application.
2.2 The
three Applicants had been arraigned and convicted on various counts
of fraud and theft. The trial was presided over by
the First
Respondent. The trial started in 1999 and has dragged on at snail’s
pace until the beginning of this year. It
has been characterised by
numerous postponements (mostly at the request of the Defence).
During the course of the last five years
of the trial, the Applicants
have changed legal representatives several times.
2.3 The
record of the proceedings is, understandably, quite voluminous. A
further quite striking feature of the trial, evident
from the
transcript, is the continuous and rising drone of skirmishes between
the defence on the one hand and the First Respondent
and, to a lesser
extent, the prosecutor on the other hand.
2.4 The
trial appears to have taken a turn for the worse once Adv. Isak Nel,
who had originally appeared for all three Applicants,
had withdrawn
due to a potential conflict of interest, during March 2003.
Thereafter a noticeable rise in tension can be depicted,
particularly
between the First Applicant’s legal representatives and the
First Respondent. Somewhat expectedly, a measure
of irritation and
impatience began to manifest itself with the First Respondent and
this steadily increased over the ensuing years
of the proceedings.
2.5 The quite unusual
occurrence of no fewer than five recusal applications (all of which
were dismissed) resulted – all of
these were brought subsequent
to Adv. Nel’s aforementioned withdrawal.
B.
BACKGROUND
AND ISSUES
3. In their Notice of
Motion the Applicants seek the following relief:
3.1 That
their convictions by the First Respondent in case number RCO 190/98
be set aside and that the matter be remitted to the
Second Respondent
for consideration whether to prosecute them
de
novo
.
3.2 Costs against the
Respondents jointly and severally in the event that they oppose the
application.
4. In
support of the application, the First Applicant deposed to the main
founding affidavit and the other two Applicants deposed
to short
supporting affidavits, merely confirming the averments in the First
Applicant’s founding affidavit which related
to them.
In addition, a short
supplementary affidavit of the First Applicant was filed. It alluded
to certain correspondence and events
concerning the First
Respondent’s appointment as Magistrate (or lack thereof, to be
more precise) for certain dates in 2007.
More will be said about
this later when I deal with this particular aspect.
5.1 A detailed and
comprehensive answering affidavit was deposed to by the First
Respondent. A much shorter answering affidavit
was deposed to by the
prosecutor at the trial, Mr. Benjamin September, on behalf of the
Second Respondent. This affidavit was
filed considerably out of time
and was accompanied by a condonation application.
5.2 A
replying affidavit was deposed to and filed by the First Applicant as
well as an affidavit by his then attorney, Mr. Robertson.
These
affidavits dealt only with matters raised by Mr. September in his
answering affidavit (and, surprisingly, not at all with
the
substantial averments contained in the First Respondent’s much
more comprehensive answering affidavit). These replying
affidavits
contained not only new matter, but highly contentious allegations as
well.
Quite understandably,
Counsel for the First Respondent, Mr. Van der Walt, moved an
application for postponement at the Applicants’
costs at the
commencement of the hearing, in order to respond to the highly
contentious new matter in the replying affidavits.
Faced with the
stark reality of an unavoidable postponement and concomitant adverse
costs order, Counsel for the Applicants, Mr.
Van Heerden, sought a
short adjournment and thereafter expressly abandoned any reliance on
these replying affidavits.
5.3 In
summary therefore, as regards the affidavits before us:
a) A supplementary
affidavit of the First 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 Mr. September’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.
5.4 I
have spent some time on the formal pleadings (affidavits) herein,
since this will, to my mind, have a critical bearing on
the outcome
of this review application as I shall show in due course. Two
important initial observations bear emphasis at this
early stage:
a) As
this is a Rule 53 review application (a procedure chosen by the
Applicants as
dominii
litii
,)
the Court is restricted to the record of proceedings (and so too are
the litigants); and
b) Where
there are serious, genuine and
bona
fide
disputes
of fact on the papers (as is the case here), in the absence of an
application for referral to oral evidence, the well-established
approach enunciated authoritatively in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
at 634 H-I will have to be adopted.
6. The issues can be
summarized as follows:
6.1
First
recusal application
6.1.1 This
application was initially mooted during December 2004, moved during
March 2005, further heard (for the State’s
answering
affidavits) during April 2005 and a decision taken that the
Applicants’ application for the disputes of fact to
be referred
for oral evidence
be dismissed, on 13 April 2005.
6.1.2 A
conundrum which has arisen is the fact that the First Respondent
failed to rule on the recusal application itself –
he merely
dismissed the application for referral to oral evidence.
The
parties before us have, however, agreed that the matter is to be
approached on the basis that the First Respondent had dismissed
the
first recusal application. This is a sensible approach, since:
a) all
the indications are that the First Respondent would have dismissed
the application (and he proceeds from this premise in
his answering
affidavit as well); and
b) the
alternative would have been for this Court to remit the matter to the
First Respondent to take a decision – this would
surely have
amounted to a
fait
accompli
.
6.1.3 The grounds for
this first recusal application were briefly as follows:
a) That
the First Respondent had been told by another (Acting) Regional
Magistrate, one Mr. White, that the First Respondent had
told another
(District) Magistrate, one Mr Birch, in the Magistrates’
tearoom that he (First Respondent) intended to convict
the Applicants
– this at a time while the trial was still proceeding.
b) That the same
Magistrate White had informed the First Applicant of the existence of
a psychiatric report which reportedly established
that First
Respondent suffered from certain psychiatric illnesses and that the
First Respondent “enjoyed sending Black persons
to prison”.
c) That the First
Respondent, the prosecutor (Mr. September) and the investigating
officer (one Captain Dare) had been seen in conversation
together in
an office during an adjournment and at a time when Captain Dare was
still under cross-examination.
d) Apart
from the abovementioned three grounds, advanced by all three
Applicants, the Second Applicant advanced a further ground,
namely
that during his own testimony the Magistrate created a clear
impression that he disbelieved the Second Applicant,
inter
alia
,
by his manner of questioning.
e) A
further ground advanced by the Third Applicant is the fact that the
First Respondent consistently always ruled in favour of
the State and
against the defence,
inter
alia
on
the special plea of lack of jurisdiction
(s106(1)(f)
of the
Criminal
Procedure Act, 51 of 1977
) and on the special plea of
autrefois
acquit
(s106(1)(d)
of the said Act), which gave rise to a reasonable perception of bias.
6.1.4 A
more comprehensive exposition of these grounds will be given when I
discuss same
seriatim
in a subsequent chapter.
6.2
Second
recusal application
This
application was brought on 14 November 2005.
The
First Applicant averred that he had obtained proof that the First
Respondent had presided some years ago in a bail application
at which
the First Applicant’s previous convictions had been disclosed.
A
further related ground was that the First Applicant’s record of
previous criminal convictions (the so-called “SAP
69”)
had been attached to the J15 charge sheet throughout the trial, that
the First Respondent has had sight thereof during
the trial, thus
leading to a fatal irregularity and/or a reasonable suspicion of
basis.
6.3
Third
recusal application
On 30 January 2006 the
third recusal application was brought by the First Applicant. The
ground for this application was that a
complaint had been laid by the
First Applicant against the First Respondent at the Magistrates’
Commission and that the First
Respondent should consequently recuse
himself from the trial.
In the
complaint itself (an exhibit before the trial Court) the grounds for
the complaint relate
inter
alia
(but
not exclusively) to the grounds advanced in the earlier recusal
applications (see
supra
)
and that during the apartheid era the First Applicant and First
Respondent had a verbal altercation and that the First Respondent
is
biased against the First Applicant.
6.4
Fourth
recusal application
This
application was brought after the First Respondent had refused (on 1
February 2007) to send the matter for special review in
terms of
s304A
of the
Criminal Procedure Act.
The
application for referral on special review was based on the fact
that, according to the Applicants, certain important information
contained in a criminal docket of Mmabatho SAPS which had a critical
bearing in their criminal trial, had been deliberately withheld
from
them by the State (more particularly by the investigating officer,
Captain Dare).
6.5
Fifth
recusal application
This
application was brought on 25
January 2008 after the First Respondent had again refused an
application to refer the matter on special review to the High Court.
The
application for referral on special review, in turn, was prompted
inter
alia
by
the First Respondent allegedly having reviewed his own proceedings by
reason of the fact that he presided during 18/5/2007, 17/8/2007
and
15/10/2007 without having been duly appointed as a Magistrate ( a
fact which was common cause), but had nonetheless then decided
that
this did not prejudice the Applicants.
6.6
Generally:
whether the First Respondent has been shown to be biased against the
Applicants and/or whether they have had an unfair
trial
The
Applicants aver that the alleged bias is to be extrapolated from the
numerous instances of refusal to recuse and that the numerous
irregularities during the trial constituted an unfair trial, thereby
vitiating the proceedings.
C.
APPLICABLE
LEGAL PRINCIPLES
7. As
a general rule, the review by a High Court of unterminated criminal
proceedings in a lower court, is an inherent power which
is to
be sparingly exercised in exceptional circumstances only.
See
in this regard:
Wahlhaus
and Others v Additional Magistrate Johannesburg and Another 1959(3)
SA 113 (A)
at
119 H – 120 A.
The
rationale behind this general rule is to avoid the piecemeal
finalization of reviews or appeals from lower courts.
See:
Wahlhaus
and Others v Additional Magistrate Johannesburg and Another
supra
at
120 E;
McIntyre
and Others v Pietersen and Another 1998(1) BCLR 18 (T)
at
20 F-G;
Moodley
and Others v National Director of Public Prosecutions and Others
2008(1) SACR 560 (N).
8. The
test to be applied whether interference by way of
the
review of unterminated proceedings is warranted, is whether the
applicant for review has made out a case that it would be unjust
and
lead to irreparable prejudice to such applicant if the trial is
allowed to proceed to a conclusion.
See:
S
v Klaasen 1998(1) SACR 317 (C)
at
322;
Levack
and Others v Regional Magistrate, Wynberg and Others 1999(4) SA 747
(C)
at
754;
Moodley
and Others v National Director of Public Prosecutions and Others,
supra
,
at
569 a-f.
9. Section
24 of the Supreme Court Act, No. 59 of 1959, sets out the grounds of
review of the proceedings of inferior courts. These
grounds are:
a) Absence of
jurisdiction on the part of the Court;
b) Interest
in the cause, bias, malice or the commission of the offence of
corruption on the part of the presiding judicial officer;
c) Gross irregularity in
the proceedings;
d) The
admission of inadmissible or incompetent
evidence or the rejection of admissible or competent evidence.
10. The
impartiality of a judicial officer is an essential requirement of a
constitutional democracy and this is closely linked
to the
independence of the courts, entrenched in s165(2) of the Constitution
(Act 108 of 1996).
See:
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa intervening) 2002(5) SA 246 (CC)
at
272 B–E (par 32).
S
v Basson 2007(3) SA 582 (CC)
at
604 F (par 24).
11. The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented by
the State. This
is to instill confidence in the criminal justice system with the
public, including those close to the accused.
See:
S
v Jaipal 2005(4) SA 582 (CC)
at
591 D-E (par 29).
12. The
test for recusal is objective and the onus of establishing the
grounds for recusal rests upon the applicant. The question
to be
decided for recusal 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 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
our that oath by
reason of their training and experience.” (emphasis supplied
)
See
:
President
of the RSA v South African Rugby Football Union 1999(4) SA 147 (CC)
at
177 B-D (par 48).
See
also:
S
v Shackell 2001(4) SA 1 (SCA)
at
9 F-I (pars 18 & 19).
The
requirement of an objective test for recusal has been described as
one of “
double
reasonableness”.
This means that:
“
Not
only must the person apprehending the bias be a reasonable person in
the position of the applicant for recusal but the apprehension
must
also be reasonable. Moreover, apprehension that the judge
may
be biased is not enough. What is required is an apprehension, based
on reasonable grounds, that the judge
will
not
be impartial.”
per
Brand AJA (as he then was) in
S
v Shackell,
supra
at
10 A-B (par 20).
13. There
is a general presumption that judicial officers are impartial. The
onus rests on a person who avers bias on the part
of
the judicial officer to rebut this general presumption.
See:
President
of the RSA v South African Rugby Football Union and Others,
supra
at
172 D – 173 B;
S
v Shackell,
supra
at
10 C;
Sager
v Smith 2001(3) SA 1004 (SCA)
at
1010 A-B (par 16).
14.1 It
is important to bear in mind that a judicial officer is not merely a
silent umpire. Fairness of court proceedings requires
that a trier
of fact be actively involved in the management of the trial in order
to control the proceedings and a supine approach
towards litigation
by judicial officers is not justifiable. What is required is that a
judicial officer should exercise a careful
balancing act, given the
thin dividing line between managing a trial and getting involved in
the fray between the parties.
See
:
Take
and Save Trading CC and Others v Standard Bank of South African
Limited 2004(4) SA 1 (SCA)
at
4 E-H (par 3).
14.2 Neutrality
of a judicial officer is not required.
See:
S
v Basson,
supra
at
606 F.
14.3
It
is important, furthermore, that when the issue of perceived bias in a
trial before a single judicial officer is considered,
sensitivity
must be shown to the different nuances of such a “
live
situation in a court of first instance
”.
The context of the proceedings will therefore be relevant to the
determination of the apprehension of a reasonable person
with regard
to perceived bias.
See:
S
v Basson,
supra
at 607 E-F (par 32).
14.4 As
a general point of departure, it is far more difficult to establish a
reasonable apprehension of bias based on the conduct
of a judicial
officer hearing a case than where it is based on the relationship
between the Judge and one of the parties or witnesses.
See:
S
v Basson,
supra
at
607 G (par 33).
14.5 In
long criminal trials it may be expected that a presiding officer may
from time to time pass remarks that are inappropriate
or which may
display irritation towards Counsel. To establish bias in such
instances, a case would have to be made out that the
inappropriate
remarks or display of irritation were of such a number or quality as
to go beyond any suggestion of mere irritation
by the presiding
officer caused by a long trial and that a pattern of conduct has been
established which is of sufficient gravity
to rebut the presumption
of impartiality and to replace it with a reasonable apprehension of
bias.
See
:
S
v Basson,
supra
at
610 C-E (par 42).
15. With
regard to alleged irregularities in proceedings it is important to
glean from the trial record the conduct of a litigant
or his legal
representative during the proceedings with knowledge of the alleged
irregularity. If circumstances existed which
would have justified an
application for recusal, but no application had been made, an
unavoidable inference is justified that there
was in fact no
reasonable apprehension of bias on the part of the litigant.
See:
S
v Jaipal,
supra
at
600 G-I (par 48).
16. Lastly,
with regard to the general legal principles applicable in this
matter, it is important to draw a distinction between
an appeal and a
review. Whereas an appeal is directed against the outcome of
proceedings, a review is concerned with the procedural
nature and
method of the proceedings.
See
in this regard
:
Bester
v Easigas (Pty) Ltd and Another 1993(1) SA 30 (C)
at
42 J – 43 B.
Refusal
to recuse can, of course, constitute a ground of appeal
by
itself at the conclusion of the trial.
See:
President
RSA & Others v SA Rugby Football Union & Others
supra at 169 D
;
SA
Commercial
Catering
& Allied Workers Union & Others v Irvin & Johnson Ltd
2000(3) SA 705 (CC) at 711 E-712A.
D.
EVALUATION
AND FINDINGS
17. The
method which I i
ntend
employing in this chapter, is to deal with the various grounds
advanced by the Applicants
seriatim
and
to make findings on each and every one of them. Before doing so, I
deem it necessary to make a few general observations which
would be
of some importance in the subseqent evaluations and findings to be
made herein.
18.1 Mr.
Van der Walt for the First Respondent has correctly drawn our
attention to the fact that all three Applicants were represented
by
very seasoned and experienced legal practitioners throughout the
trial.
Mr.
Nel, who initially appeared for all the Applicants until he was
compelled to withdraw due to a potential conflict of interest,
was a
Regional Court Magistrate for many years and now practises as Counsel
at the so-called Independent Bar and he has been doing
so for a
number of years.
The
attorney, Mr. Robertson, who took over from Mr. Nel on behalf of the
First Applicant, was previously a member of the staff of
the then
Attorney General (i.e. a State Advocate) and thereafter practised for
many years as an attorney until fairly recently.
He too has many
years of experience in practice.
Mr.
Van Heerden, who at various stages acted for certain of the
Applicants at the trial and appeared before us on behalf of all
three
Applicants, was also previously attached to the staff of the then
Attorney General as a State Advocate and now also practises,
like
Mr. Nel, as Counsel and member of the so-called Independent Bar and
he has been doing so for a number of years.
Mr.
Fourie, who for a brief period appeared for the Third Applicant, is
attached to the local Justice Centre where he only does
criminal
trials. He had been a member of the Bar previously and has vast
criminal law experience.
Mr.
Morto
n,
an attorney who at some stage acted for the Second Applicant, was
also a practising attorney of a local firm.
18.
2 From
the aforegoing it is clear that all the legal representatives who
appeared for the Applicants at various stages during this
long trial,
were very well versed in criminal law and criminal procedure.
Moreover, and importantly, the First Applicant himself
is a man with
formal legal training – during his evidence he testified that
he holds B.Comm and LLB degrees. Although he
has never practised as
a lawyer, he too would be well versed in criminal law and criminal
procedure based on his academic qualifications.
19. A
further important contention correctly advanced by Mr. Van der Walt
for the First Respondent, is that the record amply demonstrates
that
the First Respondent had exhibited a great deal of patience with the
Applicants and that he had extended to them a great
deal of latitude,
particularly when it came to applications for postponement at their
behest. There are numerous occasions on
the record where the
Applicants’ then legal representatives had moved an application
for postponement for some or other reason,
which was opposed by the
prosecutor (sometimes fiercely so), and yet the First Respondent had
granted such applications. On a
number of such occasions, the First
Respondent made it abundantly clear that he was granting the
postponement, notwithstanding
the prosecutor’s fierce
opposition, in the interests of justice, so that the Applicants could
be afforded all reasonable
opportunity to present their case to the
Court.
20. Another
general observation is, as I have stated at the introduction of this
judgment and which is supported by case law cited
in the preceding
chapter of the judgment, that it is to be expected that a presiding
officer, as an ordinary human being, would
display a measure of
irritation and impatience in the course of a very long and difficult
trial such as the present one. It is
also an important general
observation to consider that the First Respondent in the present
matter could not be expected to silently
observe proceedings as a
“neutral umpire”, but was entitled and obliged to get
involved in the management of this
very long and somewhat complex
criminal trial.
21. Last,
but not least, it bears consideration that the Applicants were
acquitted on some of the charges brought against them.
22
.
The
first recusal application
22
.1 This
application concerned the following grounds for recusal:
a) That,
based on information received
from Acting Regional Magistrate White, the First Applicant had a
reasonable apprehension of bias on the part of the First Respondent
based on the fact that, according to Mr. White, the First Respondent
had said in the tearoom that he intended convicting the Applicants,
at a time while the trial was still proceeding.
b) Further
information received was that, according to Mr. White, there existed
a psychiatric file on the First Respondent which
showed that he had
certain psychiatric problems and that he enjoyed sending Black
persons to jail.
c) The
allegation that the First Respondent had been seen in conversation in
an office with the prosecutor and the investigating
officer during an
adjournment during the trial.
d) Two
further grounds were that the Second Applicant contended that the
First Respondent created a clear impression during the
Second
Applicant’s testimony that he disbelieved the Second Applicant
through his manner of questioning.
e
) The
Third Applicant in addition contended that the fact of the First
Respondent always ruling against the defence and in favour
of the
State, had created a reasonable apprehension of bias.
22
.2 In
support of these grounds, affidavits were filed of the First
Applicant, of one Mr. Glen Chase and also of the Second and Third
Applicants. The affidavits of the First Applicant and Mr. Chase
dealt with the information received from Mr. White. The allegation
was that Mr. White had approached the First Applicant and had
furnished the aforementioned information as a possible
quid
pro quo
for
the First Applicant’s assistance in resolving a prickly problem
which apparently involved the implication of Mr White
in fraudulent
activity.
The allegation further
was that Mr. Chase, who was in an adjoining room at the time, had
overheard this conversation.
At
the trial, an affidavit was handed in by the Prosecutor in which Mr.
White denied that he had said anything of the kind averred
by the
First Applicant to him. No psychiatric report was ever produced,
even until today. There was therefore a genuine dispute
of fact on
the papers before the First Respondent, but he nevertheless refused
to refer the matter for oral evidence and, as I
have state
hereinbefore, is regarded to have dismissed the recusal application.
22
.3 I
deal firstly with the information gathered from Mr. White.
Firstly
of course
,
this is nothing other than hearsay and no grounds were advanced
either before the First Respondent during the trial or before
us, why
this hearsay should have been admitted as evidence. Moreover, the
allegations are pertinently denied by Mr. White, who
is alleged to
have been the source thereof. Mr. Van Heerden for the Respondents
argued before us that it was to be expected that
Mr. White would not
confirm these averments on oath, so as to protect his own position.
I do not understand this submission.
If, as the First Applicant and
Mr. Chase alleged, the information was made available by Mr. White as
a
quid
pro quo
for
the First Applicant to assist Mr. White with his fraud matter, Mr.
White would surely have been quite keen to confirm same on
oath as an
encouragement for the First Applicant to keep his side of the
bargain. The question also arises:
How
reliable could this information from Mr. White have been at the time
when this application for review was brought in this Court?
On the First Applicant’s case, Mr. White was a self-confessed
fraudster and, three years hence, no psychiatric report had
ever seen
the light of day. There are to my mind in any event the following
inherent improbabilities in the version of the First
Applicant and
Mr. Chase:
a) The
First Applicant, being legally trained as I have stated, became aware
(on his own version) of the alleged conversation in
the Magistrates’
tearoom and the alleged psychiatric report already during September
2003 and yet he waited until December
2004 to instruct his legal
representative to apply for the First Respondent’s recusal on
these grounds.
b) Apart
from the fact that this constitutes an inherent improbability in the
First Applicant’s version, the ineluctable conclusion
is that
if the First Applicant had already been aware since September 2003 of
this information from Mr. White, he clearly had no
apprehension that
the First Respondent is biased, given the lengthy delay (of more than
a year) in applying for recusal. This may
well be because the First
Applicant (on his own version) already had serious reservations about
Mr. White’s credibility as
a source in view thereof that,
according to him, Mr. White was a self-confessed fraudster. The lack
of a psychiatric report by
December 2004 or March 2005 (when the
first recusal application was heard), must surely have discredited
Mr. White’s information
completely (assuming that such a
conversation had in fact occurred). It must be borne in mind that
the evidence before us presently
is exactly the same evidence that
was before the First Respondent when this ground was advanced for his
recusal, namely the information
received from Mr. White. The only
evidence which has been added (and which further controverts the
First Applicant’s case)
is the affidavit from the First
Respondent himself, vehemently denying the allegations. In the
circumstances therefore, bearing
in mind that the test for recusal is
objective, that an applicant bears the onus and that the matter is to
be decided on
the
correct facts,
I
am of the view that there was absolutely no substance whatsoever in
this ground before the First Respondent. If proved, I have
little
doubt that this would have constituted a ground for recusal,
particularly the averment that the First Respondent had prejudged
the matter as evidenced by his conversation in the tearoom. These
facts have, however, not been proved at all. In fact, I take
a
serious view of the matter, inasmuchas to this very day no
psychiatric report has ever been produced. These are extremely
serious
allegations to make against a senior judicial officer and
directly impugns his integrity.
22.4 With
regard to the alleged conversation between the First Respondent, the
prosecutor and the investigating officer, it was
alleged in the
founding affidavit of the First Applicant that he had seen the First
Respondent in conversation with these two
gentlemen during an
adjournment and while Captain Dare was under cross-examination.
It
was also averred by him that one Mr. Brian Boltman had, upon enquiry
from the First Applicant, confirmed that he had also seen
this.
Quite significantly, Mr. Boltman, who deposed to an affidavit which
was handed in as exhibit “PP” to the
First Respondent
during this recusal application, makes mention of the fact that the
First Applicant is his uncle. Of some further
significance is the
fact that, although the First Applicant himself had deposed to an
affidavit which was handed in as exhibit
“MM” in the
first recusal application, that affidavit merely dealt with the
alleged information from Mr. White and
said nothing at all about the
alleged conversation in the office between the First Respondent, the
prosecutor and the investigating
officer. This is a peculiar and
very important omission. No explanation for it has been advanced
before us. The First Applicant’s
attorney, Mr. Robertson,
during his oral submission before the First Respondent in the first
recusal application, made mention
of the fact that Mr. Boltman was
the one who had first approached the First Applicant with regard to
this incident, whereafter
the First Applicant then confirmed that he
had also seen this. Boltman himself in his affidavit, handed in as
an exhibit, propounded
a conflicting version, namely that it was the
First Applicant who had approached him (Boltman) to ascertain whether
he had also
observed this incident. The First Applicant’s
version in his founding affidavit before us now agrees as regards the
sequence
of events with the one advanced by Boltman. Captain Dare,
the investigating officer, had also deposed to an affidavit handed in
by the State in the first recusal application wherein he had stated
that he has no recollection of such an event. In addition
to this
aforementioned affidavit, we now also have before us the First
Respondent’s denial that this had ever occurred, as
well as a
denial on oath from the prosecutor. Captain Dare has also deposed to
a further affidavit pertinently denying that such
an incident had
ever occurred.
In
t
his
regard therefore there is a material dispute of fact on the papers
and we have not been asked to refer the matter for oral evidence.
Since the Applicants move for final relief, the matter is to be
decided on the basis of the First Respondent’s version,
as
supported by affidavits.
See:
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd and Another
supra
,
at
634 H-I.
In
adopting that approach, this ground has to fail. The probabilities
are, in any event, overwhelmingly against the Applicants.
22.5 I
turn now to Second Applicant’s allegations with regard to the
First Respondent’s conduct during the Second Applicant’s
testimony at the trial. At the outset it is noted that this alleged
conduct occurred already on 8 February 2001. If this conduct
had
created a reasonable apprehension of bias with the Second Applicant,
the question inevitably arises why he waited until 7 December
2004 to
depose to an affidavit in that regard and to take steps about it.
The inescapable conclusion is that in fact no such apprehension
had
been created. A perusal of the passages in the record where the
First Respondent questions the Second Applicant certainly
does not
strike me as exhibiting any bias on his side or of being irregular.
A presiding officer is perfectly entitled to question
an accused
person for purposes of clarification. I am of the view that the
questions were entirely within the realm of amplification
and
clarification and that there was nothing irregular whatsoever about
it.
This
ground
too
has no merit whatsoever.
22.6 The
Third Applicant averred that the First Respondent’s repeated
rulings in favour of the State and against the defence,
caused him
to reasonably apprehend bias on the part of the First Respondent.
The
fact that the First Respondent had ruled as he did in dismissing
firstly the special plea of lack of jurisdiction and secondly
the
special plea of
autrefois
acquit,
can
obviously never
per
se
be
regarded as exhibiting bias. If the contention is that the First
Respondent was wrong in his findings, that would constitute
a ground
of appeal, but it most certainly cannot, objectively considered, give
rise to a reasonable apprehension of bias on the
part of the First
Respondent. This ground advanced by the Third Applicant is also
devoid of any merit and the First Respondent
would have been fully
justified in rejecting it.
22.7
To
summarize: I am of the view that the grounds for the first recusal
application advanced before the First Respondent were devoid
of any
merit . There is therefore no basis for finding that the First
Respondent should have recused himself on this first occasion.
23
.
The
second recusal application
23.1
It
will be recalled that this application concerned the fact of First
Respondent having presided in a bail application where the
First
Applicant’s previous convictions had been disclosed and also
the fact that the First Applicant’s record of previous
convictions had been attached to the J15 charge sheet throughout the
present trial, it being averred that the First Respondent
has had
sight of it.
23.2 At
the outset it strikes one that on his own version the First Applicant
had knowledge of the fact that the First Respondent
had conducted his
bail application previously, already at the commencement of the
trial. On this version, the First Applicant
was from the very
beginning of the trial aware that the First Respondent had knowledge
of his previous convictions. The fact,
therefore, that it was
discovered afterwards that the record of previous criminal
convictions (SAP 69) had been attached
to the charge sheet,
could not have disclosed any new facts to the First Respondent which
he had not already known on the version
of the First Applicant.
Exhibit “SS” before the trial court is a copy of an
extract from the relevant court book
showing that the First Applicant
had appeared before the First Respondent on 19 August 1997 when bail
in the amount of R5000.00
was fixed.
23.3 If,
as the First Applicant avers, he possessed this knowledge at the
commencement of the trial, it was a very simple matter
for his
counsel (Mr. Nel at the time) to place this fact on record at that
very early stage. The allegation by the First Applicant
that he was
advised by Counsel and his attorney that he first had to obtain proof
of this particular fact, does not pass scrutiny.
Quite clearly, if
this had been of such major concern to him, the method to employ
would have been to place the matter on record
and to then gather
evidence of that fact. Quite peculiarly though, the First Applicant
does not complain of the First Respondent’s
alleged knowledge
of his previous convictions until 14 November 2005! On that date
the second recusal application was brought
on the basis that the
First Respondent was aware of the First Applicant’s previous
convictions through the 1997 bail application
and through the SAP
69-record attached to the charge sheet. This enormous lapse of time
from the commencement of the proceedings
in 1999 until 14 November
2005 again leads to the ineluctable conclusion that the First
Applicant and his very experienced legal
representatives continued
with the trial with full knowledge and acceptance of the fact that
the First Respondent was aware of
the First Applicant’s
previous convictions. The lack of objection in such circumstances
warrants the irresistible inference
that the First Applicant had no
apprehension of bias whatsoever on the part of the First Respondent.
See
in this regard
:
S
v Jaipal,
supra
at
600 G.
23.4 The
First Respondent indicated in his answering affidavit that he had no
recollection of the bail application in 1997. This
averment was
attacked by Counsel for the Applicants, Mr. Van Heerden. Such attack
is unwarranted in my view. In any event, even
if the First
Respondent had been aware of the bail application and of the previous
convictions, that
per
se
did
not warrant a recusal on his part. It has been held in a number of
decisions of our Courts that, while it is advisable for
a presiding
officer who has knowledge of an accused’s previous convictions
not to continue to preside in a trial, it does
not constitute a fatal
irregularity
per
se
.
There is nothing in the evidence before us to indicate that this has
clouded the mind of First Respondent to the extent that
he was biased
against the First Applicant.
23.5 With
regard to the SAP 69-record attached to the charge sheet, the
First Respondent indicated that the charge sheet and
exhibits were
bound separately during the trial (as is the case in the record
before us now). Mr. Van Heerden submitted, on the
strength of the
First Applicant’s averments in his founding affidavit, that the
First Respondent unavoidably must have had
sight of the SAP 69-record
during the course of the long trial. Again, even if that is the
case, for the reasons advanced
before, I am not persuaded that this
had negatively affected the First Respondent in his eventual judgment
in the matter. No ground
for review has been made out in this
regard, particularly given the fact that for a period of more than
six years, neither the
First Applicant nor his experienced legal
representatives had objected to the First Respondent presiding in the
matter due to his
prior knowledge and they therefore must be taken to
have acquiesced in the state of affairs. There is therefore no merit
in the
second recusal application.
24
.
The
third recusal application
This
application was brought on the ground that a complaint had been laid
by the First Applicant against the First Respondent at
the
Magistrates’ Commission. In the complaint the grounds advanced
in the previous recusal applications were repeated and
mention was
also made of a verbal altercation during the apartheid era between
the First Applicant and the First Respondent.
The First Applicant did
not refer to this aspect at all in his founding affidavit. This
aspect was also not canvassed at all in
Mr. Van Heerden’s
heads of argument, nor did he refer to it during oral argument.
I
accept therefore that the Applicants are not proceeding with this
ground, understandably so, since to my mind there is absolutely
no
merit whatsoever in this ground. The First Respondent cannot be
faulted for dismissing this application.
25
.
The
fourth recusal application
25.1
After
the First Respondent had refused to refer the matter for special
review to this Court in terms of
s304A
of the
Criminal Procedure Act,
a
fourth recusal application was brought. The application for
referral of special review was based on the fact that, as the
Applicants
averred, certain important information had been withheld
from them which would have had a critical bearing on the outcome of
the
criminal trial. This information was said to be contained in a
police docket at Mmabatho and it was also alleged that Captain
Dare,
the investigating officer, was responsible for withholding this
crucial information.
25.2 An
important aspect to bear in mind is that at the stage when this
aspect was raised, the Applicants had already been convicted.
Captain Dare had deposed to an affidavit, dated 22 June 2006, in
proceedings instituted by the State (after conviction) to have
certain assets of the Applicants forfeited to the State. The
information regarding the contents of the Mmabatho docket was
contained
in that affidavit. During an early stage of the trial Mr.
Nel applied for this particular docket to be made available to him
and it was in fact placed in his possession. This occurred even
before the Applicants had formally pleaded to the charges against
them. It is therefore important to bear in mind that the docket
itself was never withheld from the Defence. What seems to have
happened is that subsequently information had been added to the
docket, which was never disclosed to the Applicants. It does
not
appear on the record, however, when this additional information had
been placed in the Mmabatho docket. Furthermore, no request
had
ever formally been directed to the State or to Captain Dare in this
regard. I am of the view that this matter is a red herring
and that
no prejudice ensued to the Applicants due to the non-disclosure of
the information in the docket. In any event, as I
have stated, no
formal request had ever been directed to the State to have the
contents of this docket made available. The information
therein only
became apparent after conviction, in the forfeiture proceedings which
followed.
25.3
It
was also averred that the First Respondent had exhibited clear bias
by virtue of the fact that he had dismissed the application
for
referral on special review without having proper regard to the
various documents handed in as exhibits at that stage.
Firstly,
this submission is not borne out by the record. It appears that the
First Respondent did in fact have regard to the documents
before him,
although he did not take an adjournment to peruse the documents and
to consider judgment. No mention is made in
the founding affidavit
of the First Applicant that the First Respondent did not in fact have
proper regard to the documents. Understandably
therefore, the First
Respondent also did not deal with this aspect at all in his answering
affidavit, because it was not raised
as an issue by the First
Applicant.
I am
not persuaded, given the dearth of evidence in this regard, that
there is any merit in this ground. The First Respondent did
in fact
in his ruling discuss in some detail the “new” evidence
which was potentially contained in the Mmabatho document.
He gave
consideration to the impact which it may have on the case. This
particular aspect in any event seems to me to be much
better suited
to an appeal and an accompaying application for leave to adduce
further evidence, rather than review.
26
.
The
fifth recusal application
26.1 I
t
is common cause that the First Respondent, who had retired on 28
February 2007, had not been properly appointed when he presided
in
the matter on 18 May 2007, 17 August 2007 and 15 October 2007. This
appears to have been as a consequence of an administrative
oversight.
It was not suggested, nor could it be, that the First Respondent
was
mala
fide
when
he indicated to the legal representatives of the Applicants, upon
enquiry, that he was duly appointed by the Minister to preside
as a
Regional Magistrate on those dates.
Of
considerable importance is that, during the aforementioned dates, the
proceedings dealt with an inquiry initiated by the First
Respondent
concerning a delay in previous proceedings. This was therefore a
collateral issue and by then the Applicants had already
been
convicted. It did not impact at all on the subsequent proceedings.
The First Respondent’s lack of appointment simply
meant that
the proceedings before him are a nullity and any referral on special
review to this Court would have resulted in that
conclusion.
See
in this regard:
S
v Hanekom 2004(1) SACR 490 (C)
.
No
prejudice have been proved by the Applicants in this regard. There
is therefore no ground on which this particular decision
can be
reviewed.
27.
Generally:
bias of the First Respondent against the Applicants and an unfair
trial
27.1
This
general ground is to be considered in view of the submissions
advanced with regard to the First Respondent’s refusal
to
recuse himself on the five occasions mentioned in this judgment. I
have already dealt fully with those aspects and no repetition
is
necessary. While it has been alleged that there have been a number
of gross irregularities, I have already decided that this
has not
been the case. Overall, and generally speaking, I am of the view
that, while the trial had over time deteriorated into
acrimony and
while the FirstRespondent on occasion appeared impatient and
irritated, it cannot be said that the Applicants have
not had a fair
trial.
27.2 When
one reads the lengthy record of the proceedings, it is apparent that
the First Respondent became quite annoyed by the
many postponements
foisted upon him by the defence. In many instances the First
Respondent’s annoyance was justifiable.
It is to be expected
that in a long criminal trial of some complexity, a presiding officer
would become impatient and irritated.
This is however not sufficient
ground for recusal or for a review of the proceedings.
27.3
It
has been submitted that the many instances forming the grounds of
review, assessed cumulatively and in totality, establish a
pattern of
bias on the part of the First Respondent and constitute an unfair
trial. I have given very careful consideration to
this aspect,
because it is not without merit. I have considered carefully whether
a reasonable litigant would have been caused
a reasonable
apprehension of bias by the numerous incidents already mentioned in
this judgment. While it is true that all the
preliminary points, the
five recusal applications (and concomitant referral applications in
some instances) as well as the merits
(conviction), had gone against
the Applicants, it is counter balanced by the considerable patience
and latitude extended to the
Applicants whenever they had sought a
postponement (which was quite frequent). And it should be remembered
that the First Respondent
had acquitted the Applicants on some of the
charges.
27.4 It
is also noteworthy that the trial had proceeded along fairly smoothly
while Mr Nel was acting for the Applicants. I ascribe
no malice or
mala
fides
to the subsequent legal representatives, but one cannot resist
observing this particular fact.
27.5
It quite frequently happens, particularly in a long trial (civil or
criminal), that virtually all the rulings go against one
party. This
is not
per
se
indicative of bias on the part of the presiding officer. An
excellent case in point is the
S
v Basson
matter cited earlier. The judgment of the Constitutional Court in
that matter is particularly apposite to the present case.
27.6 I
have, after serious reflection and consideration, come to the
conclusion that the Applicants have failed to prove bias or
gross
irregularities vitiating the proceedings or that they have had an
unfair trial.
E.
CONCLUSION
28.
. For
the reasons aforementioned I am of the view that the Applicants have
not made out a case to have the proceedings before the
First
Respondent reviewed and set aside.
I
have come to this conclusion based on the legal principles to be
applied, in particular the following:
a) Neutrality on the part
of the First Respondent was not a requirement. Furthermore, the fact
that the First Respondent became
impatient and irritated and annoyed
at some stages does not warrant a finding that grounds for recusal
had been established.
b) A
presumption of objectivity and impartiality on the part of the First
Respondent has not been rebutted by the Applicants in
the affidavits
before us or on the trial record.
c) Incorrect
decisions and rulings which may have been given by the First
Respondent (and I consciously and purposely express no
opinion
thereon) do not warrant interference on review and may well
constitute grounds of appeal.
d) In a considerable
number of instances, there are genuine dispute of facts on the papers
and, in the absence of an application
for referral for oral evidence,
the matter has been decided on the First Respondent’s version,
as amplified by supporting
affidavits and by the record before us.
29.
In
the result I am of the view that the Applicants have failed to
establish a case for review and the application must consequently
be
dismissed and costs should follow the outcome.
30.
I
issue the following order:
30.1
THE
APPLICATION IS DISMISSED.
30.2
THE
APPLICANTS ARE ORDERED TO PAY THE COSTS OF THE APPLICATION JOINTLY
AND SEVERALLY, THE ONE PAYING THE OTHERS TO BE ABSOLVED
PRO
TANTO
.
____________
SA MAJIEDT
JUDGE
I CONCUR.
_____________
CJ OLIVIER
JUDGE
FOR
THE
APPLICANTS : ADV
F VAN HEERDEN
INSTRUCTED
BY
: VAN
DE WALL ATTORNEYS
FOR
THE RESPONDENTS : ADV DJ VAN DER WALT
INSTRUCTED
BY
: DUNCAN
AND ROTHMAN ATTORNEYS