S v Libeso and Another (693/2005) [2005] ZAFSHC 59 (23 June 2005)

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[2005] ZAFSHC 59
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S v Libeso and Another (693/2005) [2005] ZAFSHC 59 (23 June 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 693/2005
In
the review between:
THE
STATE
versus
CECIL
MOEKETSI LISEBO AND ANOTHER
_____________________________________________________
CORAM:
HANCKE
J
et
C. J. MUSI J
_____________________________________________________
JUDGMENT:
HANCKE
J
_____________________________________________________
DELIVERED
ON:
23
JUNE 2005
_____________________________________________________
This is a partly heard
matter in the magistrate’s court of Ficksburg. The two accused are
charged with assault with intent to cause
grievous bodily harm.
After the accused pleaded not guilty, but before any witnesses were
called to testify, the magistrate sent
the matter on review with the
following remarks:
“
Before proceedings were initiated
accused no 2 legal representative objected averring that I am biased
against his clients and thus
not in the interest of Justice that I
preside over the matter.
In
response to this objection, I insisted that I have no interest in the
matter. The parties involved are not known to me including
the two
accused persons.
Furthermore
I had only nine days in the district of Ficksburg at that time.
Since
I cannot rule on my credibility as the presiding officer in this
matter, I found it being in the interest of Justice that the
matter
be referred to the Honourable Judges for a special review.
Both accused have already pleaded and
the state has not yet led evidence to prove its case………”
After receiving the
review, I sought the views of the Director of Public Prosecutions. I
have now been furnished with a comprehensive
and well researched
opinion of Adv Claassens of his staff. I agree with the contents of
the opinion and wish to thank her for her
valuable assistance.
The objections raised by
the defence attorney were mechanically recorded which record has not
been submitted as part of the review
record. It is therefore not
clear on what grounds the application for recusal was made. Without
this information it is not possible
to determine whether the
magistrate should recuse herself or not. It is in any event not for
a review court to make this decision.
The presiding officer must
hear the objections in an application for recusal and the following
guidelines have been laid down to
assist a presiding officer in
making a decision:
“
1. There must be a suspicion that
the judicial officer might, not would, be biased.
2. The
suspicion must be that of a reasonable person in the position of the
accused or litigant.
The suspicion must be based on
reasonable grounds.
The suspicion is one which the
reasonable person referred to would, not might, have. (
S
v ROBERTS
1999 (4) SA
915
(SCA) at 924E – 925D.)”
The test for recusal was
discussed
in
extenso
in
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v SOUTH AFRICAN FOOTBALL
UNION AND OTHERS
[1999] ZACC 9
;
1999 (4) SA 147
(CC), where the following was stated on 177 [48]:
“
[48] It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the onus of establishing it rests upon the applicant. The question is
whether a reasonable, objective and informed person would
on the
correct facts reasonably apprehend that the Judge has not or will not
bring an impartial mind to bear on the adjudication
of the case, that
is a mind open to persuasion by the evidence and the submissions of
counsel. The reasonableness of the apprehension
must be assessed in
the light of the oath of office taken by the Judges to administer
justice without fear or favour; and their ability
to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any irrelevant
personal beliefs
or predispositions. They must take into account the fact that they
have a duty to sit in any case in which they
are not obliged to
recuse themselves. At the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite
for a fair trial and
a judicial officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part
of a litigant for
apprehending that the judicial officer, for whatever reasons, was not
or will not be impartial.”
(My
underlining)
It is clear from the
aforegoing that the presiding officer was premature in her referral
of this matter for special review. It was
her duty, after hearing
and considering the objections in the application for her recusal, to
decide, with reference to the relevant
authorities, to grant or
refuse the application. If the application has been ruled upon and
the circumstances justify the referral
thereof for review, then the
full record should be submitted by the magistrate after the
conclusion of the trial.
In
the circumstances the matter is remitted to the magistrate to deal
with the case according to the guidelines discussed in this
judgment.
________________
S.P.B. HANCKE, J
I
agree.
___________
C.J. MUSI, J
/sp