S v Ismail and Others (SS88/2002) [2003] ZAWCHC 9 (13 March 2003)

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[2003] ZAWCHC 9
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S v Ismail and Others (SS88/2002) [2003] ZAWCHC 9; 2003 (2) SACR 479 (C) (13 March 2003)

18
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: SS88/2002
In
the matter between:
THE
STATE
and
SHAHEEM
ISMAIL
FARIED
DAVIDS
ALIVIA
DAVIDS
ROY
VLOTMAN
IKRAM
NORTON
ASHRAF
LEE
ABDULLAH
BRENNER
JUDGMENT
DATED 13 MARCH 2003
_____________________________________________________________
H.J.
ERASMUS, J:
This
is an application for my recusal.
After
several postponements, the trial in this matter was due to resume on
Thursday 6 March 2003. Prior to the resumption of the trial
on
Thursday morning, Ms Lötter informed me, first in chambers and
thereafter in open court, that she had been instructed by the
first
accused to apply for my recusal. She asked for the matter to stand
down to Monday, 10 March 2003 at 10h00. On that day, the
preparation
of the typing of the record of the proceedings on which the applicant
wishes to rely had not been completed and the matter
was further
postponed to 12 March 2003.
In
the Notice of Application for Recusal filed on 7 March 2003, the
applicant relies on a variety of grounds in support of the submission
that his constitutional right to a fair trial has been infringed or
denied, and that he has a reasonable apprehension that I will
not
bring an impartial mind to bear on the adjudication of the case.
The
other accused have not associated themselves with the application.
Their attitude, as conveyed to me by their counsel, is as follows:
the second, fifth, sixth and seventh accused have adopted a neutral
attitude. Mr Johnson, who appears on behalf of the third accused,
informed me that his client opposes the application. Mr Philander,
who appears on behalf of the fourth accused, stated that his client
does not support the application.
The
application is opposed by the State.
Recusal
In
approaching this application, I bear in mind what was stated by the
Appellate Division in
Moch v Nedtravel (Pty)
Ltd t/a American Express
1996 (3) SA 1
(A) at
13H, namely that "a judicial officer should not be unduly
sensitive and ought not to regard an application for his recusal
as a
personal affront."
The
proper approach to an application for recusal has recently been
authoritatively laid down by the Constitutional Court in two cases,
namely,
President of the RSA and Others v
South African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
("the
SARFU
case") and
South Afrcan Commercial
Catering and Allied Workers Union and Others v Irvin & Johnson
Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000
(3) SA 705
(CC),
2000 (8) BCLR 886
("the
SACCAWU
case"). It has also been considered by the Supreme Court of
Appeal in
S v Roberts
1999 (4) SA 915
(SCA),
1999 (2) SACR 243
(SCA);
Sager
v Smith
2001 (3) SA 1004
(SCA) and
S
v Shackell
2001 (4) SA 1
(SCA).
At
para [48] of the
SARFU
judgment the full court said the following:
"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 Judge 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."
The
test is, therefore, an objective one. The test is whether the
reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge would not be impartial. The
requirement is described in the
SARFU
and
SACCAWU
cases as
one of "double reasonableness". 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.
At para [20] in
S v Shackell, supra,
it is further said:
"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."
Ms
Lötter has stressed that the test requires an assessment of the
applicant’s perception of impartiality. This perception must,
however, be objectively reasonable. In this regard reference was made
to what was said in
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 694I—695A
(and cited with approval in the minority judgment in the
SACCAWU
case at par [55]):
“
Provided a suspicion of partiality is one which might
reasonably be entertained by a lay litigant a reviewing Court cannot,
so I consider,
be called upon to measure in a nice balance the
precise extent of the apparent risk. If suspicion is reasonably
apprehended, then
that is an end to the matter.”
At
para [15] of the
SACCAWU
judgment, Cameron AJ pointed out that the twofold emphasis on the
aspect of reasonableness serves to underscore the weight of the
burden resting upon the applicant for recusal who bears the
onus
of rebutting the weighty presumption of judicial impartiality.
Cameron
AJ further points out (at para [17]) that a court considering a
recusal application asserting a reasonable apprehension of
bias must
give consideration to two contending factors:
"On
the one hand, it is vital to the integrity of our courts and the
independence of judges and magistrates that ill-founded
and
misdirected challenges to the composition of a bench be discouraged.
On the other, the courts' very vulnerability serves to underscore
the
pre-eminent value to be placed on public confidence in impartial
adjudication. In striking the correct balance, it is 'as wrong
to
yield to a tenuous or frivolous objection' as it is 'to ignore an
objection of substance'".
(The
phrases cited are from the judgment of the Court of Appeal in
Locobail (UK) Ltd v Bayfield Properties Ltd and Another
[2000] 1 All ER 65
(CA) at para [21]).
The
background
The
applicant is standing trial together with six other accused on a
charge of contravention of section 18(2)(a) of the Riotous Assemblies
Act 17 of 1956 in that they conspired to murder regional magistrate
Wilma Van der Merwe. In the alternative, he is charged with
attempted
murder and, in the further alternative, with contravention of section
18(2)(b) of the Riotous Assemblies Act 17 of 1956.
There are also two
charges under the Arms and Ammunition Act 75 of 1969. There were
initially twenty-one accused. The case was set
down for trial on 5
August 2002 but it was, on that date, further postponed to 3 February
2003.
The
venue of the trial was originally to be in the magistrate's court at
Atlantis where the case was to be tried by a Judge of this
Division
of the High Court. On 3 February 2003, by which time charges against
fourteen of the twenty-one accused had been withdrawn,
the trial was
transferred to the High Court in Cape Town.
The
trial duly started before me in the High Court in Cape Town on 4
February 2003. On that day, the accused all pleaded not guilty
to the
charges being brought against them. The State then led the evidence
of a number of members of the South African Police Service
and all
the witnesses were duly cross-examined by the legal representatives
of the various accused.
The
next day, prior to the resumption of the proceedings, Mr Kawalsky,
who appeared for the first accused, informed me, first in chambers
and thereafter in open court, that the first accused had terminated
his mandate.
Mr
Kawalsky was appointed by the Legal Aid Board on 22 November 2001 to
act on behalf of the first accused. He thereafter acted for
the first
accused in matters related to and preliminary to the trial in this
matter. Thus he appeared on his behalf in an application
by the State
that the first accused furnish voice samples for analysis and in an
appeal against the magistrate's ruling in this regard.
He was also
involved in applications brought by the first accused for funding to
enable him to employ a voice expert and a handwriting
expert. Mr
Kawalsky appeared for the first accused at the postponement of the
trial on 5 August 2002 and on the first day of trial
on 4 February
2003.
The
first accused informed me that he had lost confidence in Mr
Kawalsky's ability to represent him adequately and to put his case
properly before the Court. The reasons he advanced at that time had
nothing to do with the proceedings on the previous day, the first
day
of the trial. The reasons all went back to the time in 2002 when Mr
Kawalsky had acted for him over a period of many months.
In a letter
dated 11 February 2003 to the Bar Council, which was received as
Exhibit “J” in these proceedings, he raised yet
further
complaints about Mr Kawalsky which also go back to last year. In his
evidence in court on 12 March 2003 in support of his
application, the
applicant alluded for the first time to a complaint he had about Mr
Kawalsky’s conduct on the first day of the
trial.
The first accused gave no reason or
explanation for his delay in terminating Mr Kawalsky's mandate. By
terminating the mandate on
the second day of the trial, the first
accused brought inconvenience for everybody involved in the
proceedings: for Mr Cilliers,
who appears for the State, who has to
orchestrate the calling of witnesses, including expert witnesses,
who have to be specially
brought to Cape Town; for his fellow accused
who have to wait so much longer for the completion of their trial;
for the legal representatives
of the other accused who have
undertaken other commitments in the reasonable expectation that this
trial would run its course during
the first Court term.
The
trial was postponed to 10 February and thereafter to 13 February 2003
in order to enable the first accused to bring a renewed
application
to the Legal Aid Board for the appointment of counsel to represent
him. On 13 February 2003 I was informed that the Legal
Aid Board had
agreed to the appointment of another legal representative for the
first accused. I was further informed that Ms Lötter
had accepted
the brief, and the accused informed me that he was satisfied with her
appointment. The trial was then postponed to 3
March 2003 to enable
Ms Lötter to prepare for the trial and to consult with the first
accused.
The
trial could not proceed on 3 March 2003 by reason of the illness of a
state witness and of the fourth accused. The trial was
postponed to
Thursday 6 March 2003.
In
the meantime, on 14 February 2003, I received a letter through the
post which purports to emanate from one Alastair Kerridge. The
person
concerned is mentioned in the summary of substantial facts in terms
of
section 144(3)(a)
of the
Criminal Procedure Act 51 of 1977
as,
initially at least, a co-conspirator in the alleged conspiracy to
murder regional magistrate Van der Merwe. His name also appears
on
the list of witnesses the State intends to call, furnished to all the
accused under the provisions of
section 144
(3) of the
Criminal
Procedure Act 51 of 1977
.
By
reason of the identity of the purported author of the letter and the
contents thereof, I considered it necessary to make copies
available
to the State advocate and to the legal representatives of all the
accused. I accordingly invited them to my chambers on
Monday 17
February and handed each one of them a copy of the letter. Mr
Petersen, who appears for the sixth accused, was not available
on
that day but collected his copy in due course.
When
the Court re-assembled on 3 March 2003, the day on which the trial
could not proceed by reason of the indisposition of a witness
and the
fourth accused, I placed on record the fact that I had received the
letter and that I had made copies available to all the
legal
representatives. I emphasised that the letter was not part of the
evidential material in the case.
The
applicant's case for recusal
On
Thursday 6 March 2003, as I have already pointed out, Ms Lötter
informed me that she had been instructed by the first accused
to
apply for my recusal. The application for recusal is based upon what
transpired in Court during the withdrawal of Mr Kawalsky
and the
appointment of counsel to take his place, and upon the letter. The
events in Court of which the first accused complains,
took place on 5
and 10 February 2003.
The
letter
The letter is undated, and typed with a number of
corrections in pen. The letter has been received as Exhibit “K”.
The letter
is headed:
“
For
the urgent attention of: Professor Hennie Erasmus.”
The
letter contains a series of allegations about corruption on the part
of police officers and members of the staff of the Director
of Public
Prosecutions, and the falsification of tapes by a “voice expert”.
These allegations are not relevant to the application
for my recusal.
The issue in the application now before the Court is whether the
reasonable, objective and informed person will on
the correct facts
reasonably apprehend that I will not be impartial in the adjudication
of the matter. The letter is relevant to
the present proceedings in
so far as it deals with or reflects upon the applicant’s
apprehension that I will not be impartial.
The
applicant objects to the fact that I informed counsel that I had
received the letter and made copies available to them. The objection
seems to be that I had unnecessarily introduced something which is
extraneous to the case. The name of the purported author of the
letter appears on the list of State witnesses that was furnished to
the accused under the provisions of
section 144(3)
of the
Criminal
Procedure Act 51 of 1977
. If the State were to call him to give
evidence, the letter would, on the face of it, be of vital importance
to the defence in the
cross-examination of Mr Kerridge. In my view,
it was the correct and proper thing to do to bring the letter to the
notice of counsel.
In
his oral evidence, the applicant relied on two points made in the
letter as evidence to support his perception that I was biased
against him. In the letter, the author says that he had been told by
Ms Van der Merwe and Mr Cilliers that I was Van der Merwe’s
lecturer at Stellenbosch and that I knew her personally. The
applicant says that he was “shocked” when the letter was shown to
him and he saw that I was a former professor and that regional
magistrate Van der Merwe is a former student of mine.
The
allegations in the letter regarding myself are hearsay and not on
oath. Nevertheless, and especially since one is in an application
for
recusal dealing with perceptions, this kind of allegation places a
Judge in an invidious position. In the SARFU case, the Judges
of the
Constitutional Court responded to allegations on oath in support of
an application for their recusal, by issuing a “statement
of facts”
which was accepted “unhesitatingly” by the applicants for recusal
(para [23] and [24]). All I can do, is to say is
that Ms Van der
Merwe might have been a student of mine, but she is certainly not
known to me personally and we are not friends.
Perhaps
I should place Ms van der Merwe’s position as (possibly) a former
student of mine in proper perspective. I have no recollection
that
she had been a student of mine. But she may well have been. I was
attached to Stellenbosch University for a period of about
twenty
years. During those years I was responsible, each year, for an
undergraduate course with a class exceeding two-hundred students,
a
pre-final year LL.B course with a class of one-hundred to one-hundred
and thirty students, and one or two smaller, final-year LL.B
groups
doing an optional course. In addition, I lectured from time to time
at the University of Cape Town and the University of the
Western
Cape. It will be apparent that during those years literally thousands
of students passed through my lectures. Some of them
I remember;
others I do not. Sometimes I recognise a face without being able to
put a name to it. Should regional magistrate Van
der Merwe be called
to give evidence, I may, or I may not, recognise her. I fail to
understand why I will be biased against the first
accused simply
because regional magistrate Van der Merwe happened years ago to have
been a student of mine – if she had been a
student of mine, it must
have been years ago because, as far as I know, only people with
judicial experience are elevated to the
rank of regional magistrate.
In
the
SARFU
case, the
recusal of Chaskalson P (now CJ) was sought on the ground of a
“longstanding relationship of advocate and client” between
him
and President Mandela. The Court said (at para [79]):
“
We have never heard of a recusal application founded upon
such a relationship prior to a judge’s appointment to the bench in
South
Africa.”
While, as the Court pointed out, the
relationship of advocate and client is not as close as that of
attorney and client, a working
relationship inevitably develops
between advocate and client during the course of the case handled by
the advocate. In this regard,
the Court adds (at para [79]):
“
There have been countless cases in our history where judges
have adjudicated disputes in which a party had been a client prior to
their appointment.”
The relationship of a university lecturer and a student may
take various forms. A student engaged upon the preparation of a
thesis
for a master’s or doctor’s degree may, over a period of
several years, develop a close working relationship with his or her
supervisor.
At the other end of the spectrum, a student may be an
anonymous face in a large class and may have direct personal contact
with an
individual lecturer but once or twice during his or her years
as a student. In such a case, the relationship between a student and
the lecturer is far more tenuous than that of advocate and client. In
the
SARFU
case it was pointed out that the relationship of
advocate and client between the President and Chaskalson P ended some
35 years ago.
In the result, it was concluded –
“
That such a relationship provides any ground for the recusal
of Chaskalson P is fanciful and devoid of merit.”
I can only echo these words and say
that the assertion that in this case, the relationship of lecturer
and student provides any ground
for my recusal “is fanciful and
devoid of merit”.
The conduct of the proceedings
The applicant in his evidence referred to several
incidents which occurred on the 4
th
, 5
th
, 10
th
and 13
th
of February.
The applicant complains that during the
afternoon of the first day of the trial on 4 February 2003, I
“reluctantly” acceded
to Mr Kawalsky’s request for a brief
adjournment to consult with his client before cross-examining
Superintendent Deetlefs –
the applicant also says that Mr Kawalsky
required the adjournment because he had not properly consulted with
him in preparation
of the cross-examination. The relevant part of
the record reads as follows:
GEEN
VERDERE VRAE DEUR MNR CILLIERS:
COURT:
Mr
Kavalsky?
MR KAVALSKY:
M’Lord this witness has come down from Pretoria. I may have some
questions for him, but I do not wish to hold him overnight.
I wish
to take instructions briefly to establish if there is anything that
the accused number 1 instructs me to put to this witness.
May we
have five minutes.
COURT:
Yes Mr
Kavalsky, I am quite prepared to give you five minutes.
I fail to discern the alleged reluctance on my
part. According to the record, the moment Mr Kawalsky put his request
to me, my immediate
reaction was –
“
Yes
Mr Kawalsky, I am quite prepared to give you five minutes.
”
The applicant says that I infringed his
constitutional rights by telling him that should the Legal Aid Board
refuse his (new) application
for legal assistance, he would have to
act for himself. Mr Johnson, who appears on behalf of the third
accused, rightly pointed
out that the remark I made should be seen
in context. The remark was made while the applicant’s renewed
application to the Legal
Aid Board was being considered. The
following was said:
COURT
: If I
understand you correctly, you would prefer to have senior counsel.
ACCUSED 1:
Yes
COURT:
Now, that’s up to the Legal Aid Board to
decide whether they will grant it.
I then dealt with the question of
the delay occasioned by the application and proceeded –
But the implications are a
long further delay or if one reaches a point, of course I am not
saying that we have reached that point
today, I’ll first listen to
other people, one might say well,
if you’re not satisfied with
the legal representation
(my emphasis), you run your own case.
That I would prefer not to do if it can possibly be avoided. But
let’s leave that for later
consideration.
The
remark I made occurred within the context of the applicant’s desire
that senior counsel be appointed to assist him, and was
intended to
bring to his attention that a recipient of legal aid cannot demand
that the State assign to him counsel of his choice
– though I did
not spell it out, I had in mind the remarks of Harms JA in
S
v Halgryn
2002 (2) SACR 211
(SCA) at 216e).
The
applicant’s perception that I was denying him legal representation
should his application to the Legal Aid Board fail, is not
borne out
by the record of the proceedings. The record makes it clear that I
merely spelled out an envisaged possibility under certain
circumstances, and made it clear that should that eventuality arise,
the matter will then be dealt with.
According
to the record, the objective facts are that the trial was stood down
for several days to enable Dr Ismail to put his application
before
the Legal Aid Board; after the appointment of (new) counsel had been
confirmed, the trial was postponed for two weeks to enable
her to
familiarise herself with the case and to consult with the applicant;
I requested Mr Cilliers to arrange that Ms Lötter get
the
opportunity to view the video that had been shown in court on the
first day of trial; I requested Mr Cilliers to assist Ms Lötter
with
the arrangement of sufficient opportunity to consult with her client,
and I ordered a transcript of the evidence of the first
day of trial
to be typed.
The
perception that I displayed a lack of impartiality on this score has
no reasonable foundation.
(c) On
Monday 10 February 2003 the applicant placed the following on record:
ACCUSED 1:
When
I was transported to prison on I think it was Wednesday, the
intervention unit, the way they drove, I was shackled and I’m
full
of bruise marks and my neck, I’ve got a neck problem, spinal
problem. I fell around in the van the way they drove and I would
like to see a district surgeon, if possible. And on Wednesday, Your
Honour, I’m seeing my psychiatrist at the prison, because
I’m
suffering from port-traumatic stress as well, Your Honour. And the
way I’ve been treated for this last past days coming to
court, I’ve
never been treated like this in my life, Your Honour. I’m in prison
six years, I’ve never been brought to court
in this manner, like a
caged animal,. Your Honour. I’m shackled, I’ve got no ventilation
and the person driving this, is a maniac
driver. A caged animal on
its way to a slaughter house is not even treated like that, Your
Honour. I mean, it’s disgusting, Your
Honour, we’re living in the
new South Africa and I’ve got to go through all these things, and I
come from a respectable family,
Your Honour.
COURT:
Are you
being transported in a police van at the back?
ACCUSED 1:
Yes,
and another van in front. But today it was a bit comfortable,
because we came with this Nella [
sic –
the reference is
probably to vehicle known as the Njala] – I mean, it’s not as bad
as the - the other van, Your Honour. And
I just need some
treatment, Your Honour.
COURT:
Dr
Ismail, I think that’s again something I can put onto the shoulders
of Mr Cilliers. Will you please attend to this, Mr Cilliers?
And if
necessary, see to it that, if the allegations are correct that the
accused is transported at least in a reasonable fashion.
On
reading the record, it has become clear to me that in my concern for
the manner in which the applicant was being transported to
Court, I
overlooked his request to see the district surgeon. I fail to see how
that oversight can give rise to a reasonable apprehension
that I will
not be impartial in the adjudication of the case. After all, I
overlooked his request because of my focus on another
of his
complaints.
The
applicant said in evidence that a further example of the disdain
with which I treat the accused, is the manner in which I dealt
with
Mr Roy Vlotman, the fourth accused, when the court proceedings were
delayed on 6 March 2003 because of his late arrival at
court. In
view of the attitude adopted by Mr Philander, who appears on behalf
of the fourth accused, I need not deal with the
details of this
complaint. In his cross-examination of the applicant, Mr Philander
made it clear that the applicant had no brief
to speak on behalf of
the fourth accused, that the fourth accused was in constant contact
with his legal representative, and that
the fourth accused does not
support the applicant’s application for my recusal.
The
applicant’s final complaint is that the Police have labelled him
as a member of PAGAD and were treating him as if he were
a dangerous
criminal. The applicant says that the presence of armed Police in
Court is calculated to poison my mind against him
and that, as a
result, I shall not be able to bring an impartial mind to bear on
the case against him. Of this complaint I can
only say that it is
devoid of merit
The
application is dismissed
HJ ERASMUS, J