Silwana and Others v Magistrate for the District of Piketberg and Another (9163/2002) [2003] ZAWCHC 19 (30 May 2003)

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[2003] ZAWCHC 19
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Silwana and Others v Magistrate for the District of Piketberg and Another (9163/2002) [2003] ZAWCHC 19; 2003 (5) SA 597 (C); 2003 (2) SACR 310 (C); [2003] 3 All SA 350 (C) (30 May 2003)

IN THE HIGH COURT OF SOUTH
AFRICA
CAPE OF
GOOD HOPE PROVINCIAL DIVISION
CASE NO
: 9163/2002
HENDRIK
SILWANA
First Applicant
CAROLINE MTHI
Second Applicant
and
THE MAGISTRATE FOR
THE DISTRICT OF
PIKETBERG
First Respondent
THE DIRECTOR OF
PUBLIC PROSECUTIONS
FOR THE CAPE OF GOOD HOPE
PROVINCIAL
DIVISION
Second Respondent
__________________________________________________________________________
JUDGMENT
DELIVERED THIS 30
TH
DAY OF MAY, 2003
__________________________________________________________________________
FOXCROFT, J :
This is a review application
brought on Notice of Motion in terms of Rule 53. The two Applicants
seek an order reviewing and setting
aside the decision of First
Respondent, the Magistrate for the District of Piketberg, given in
the court of Piketberg in a matter
between the State and First and
Second Applicants in case no 138/2002. The Magistrate refused to
recuse himself and the Notice of Motion is
directed against that refusal.
Mr Reuben Miles Liddell, an attorney of this
court and Attorney of Record for both Applicants, appeared on behalf
of the Applicants
in the criminal case currently pending before the
District Court at Piketberg. Those criminal proceedings commenced on
12 July 2002,
when Mr Liddell applied for the recusal of the
Magistrate.
On 16 September 2002, the Magistrate delivered his
judgment, refusing the application for his recusal.
First Respondent, the Magistrate concerned, gave
notice that he would abide by the decision of this Court. Second
Respondent initially
gave notice of opposition. On 8 January 2003,
Second Respondent withdrew his Notice of Opposition and also abides
the decision
of this Court.
In the affidavit supporting the review, Mr Liddell
states that the Applicants were arrested and subsequently arraigned
on a charge
of contravention of the Drugs and Drugs Trafficking Act,
No 140 of 1992. They had not yet been asked to plead and are on
bail.
When Mr Liddell was preparing for trial, he
requested a copy of what he refers to as the
‘A’
part of
the case docket in the criminal trial. He was furnished with those
papers. On perusing the docket, it became evident to
him that two
search warrants had been issued by First Respondent, Mr P L
Grundlingh. First Respondent, according to Mr Liddell
, was also to
be the presiding officer at the criminal trial.
In consultation with Applicants, he showed them
the two search warrants, copies of which are annexed to his
affidavit as Annexures
‘A.1’ and ‘A.2’. The Applicants
asked him to explain how the search warrants had been issued, and he
explained the procedure.
He also informed the Applicants that First
Respondent had signed these warrants and that First Respondent would
be the presiding
magistrate at the trial.
In para 11of his affidavit, he goes on as follows
:
“
I then explained to the
Applicants that an informer had deposed to an affidavit and that the
First Respondent acting on what was contained
in that affidavit
signed the search warrant. The Applicants then inquired from me if
it was fair for the First Respondent to also,
in the current
circumstances, preside at the criminal trial.”
Mr
Liddell
then showed the Applicants a
copy of the informant’s affidavit, which had also been made
available to him and which appears as
Annexure ‘B’ to his
affidavit. The Applicants inquired why certain portions of the
affidavit had been deleted, and he explained
to them that he had
been informed by Second Respondent, the prosecutor concerned, that
she had deleted only those parts where it
would be possible to
identify the informant. The Applicants were, according to Mr Liddell
, alarmed at the fact that First Respondent
was permitted to see a
complete affidavit whilst they were only permitted to see certain
parts thereof. They also wanted to know
whether it was not irregular
for the person who issued the warrant to also preside at the trial.
Mr Liddell had told them that
he would request First Respondent to
recuse himself, which he duly did by letter, Annexure ‘C’.
Various grounds for the recusal
are referred to in para 13 of Mr
Liddell
’s affidavit. In short, these are the following :
that the First Respondent
had authorised the search warrants and would also preside;
that the merits of the
matter had been placed before First Respondent by way of affidavit
and that First Respondent had exercised
a discretion in issuing the
search warrant thereby “deciding that there was merit in the
application for a search warrant”;
that only certain portions
of the search warrants were disclosed to Applicants but that the
entire contents thereof were placed
before First Respondent; and
that the search warrants
fell foul of the decision in
SMIT & MARITZ ATTORNEYS AND
ANOTHER v LOURENS NO AND OTHERS, 2002[1] SACR 152.
To my mind, there is no substance in the last
ground. The section in the Act which is referred to in the case
cited above, is section
21(2) of the Criminal Procedure Act, which
provides :
“
A search warrant issued
under subsection (1) shall require a police official to seize the
article in question and shall to that end
authorise such police
official to search any person identified in the warrant or to enter
and search any person found on or at
such premises.”
One of the problems in the case involving SMIT &
MARITZ was that the warrants there were addressed
“aan alle
polisie beamptes”.
VAN OOSTEN, J followed the decision of
ROUX, J in
NAIDOO AND ANOTHER v MINISTER OF LAW AND OTHER AND
ANOTHER, 1990[2] SA 158 [W]
, where ROUX, J had held that the
legislature intended that an identified police officer should be
named and he or she should act
throughout. VAN OOSTEN, J held that
“
Decency and order can only
be achieved if a known and named police official or officials are
empowered to execute it.”
The search warrants presently under consideration
commenced with the words
“Aan die stasiebevelvoerder”.
They are not directed to police officials generally, and although
the
‘Stasiebevelvoerder’
is not specifically named, nor
the police station, Mr Liddell placed on record [p 22, lines 13-15)
that the
‘warrant has been issued and it has been addressed to
the Station Commander of the local police station”.
It would
be a matter of no difficulty for anyone to ascertain who the Station
Commander was on the date when the warrant was signed
as indicated on
each warrant, namely 2 February 2002. Indeed, it makes more sense to
specify a station commander than a named person
who might not be
available at the very moment when the search needed to be carried
out. There had also never, in my view, been any
possibility of the
magistrate having to testify as to the validity of the warrant. Its
validity would have been determined by application
of the strict
rules of interpretation, and the magistrate’s evidence could not
possibly have assisted.
Leaving aside the first ground, namely that the
presiding officer should never authorise a search warrant, I move to
the more substantial
grounds in this matter, namely the exercise of
the discretion after being placed in position of information by an
informant and the
fact that only certain portions of the informant’s
affidavit were disclosed to Applicants, but that the entire affidavit
was placed
before First Respondent.
The Constitutional Court in
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA AND OTHERS v SOUTH AFRICAN RUGBY FOOTBALL
UNION AND OTHERS, 1999[4] SA 147 [CC]
decided that an application
for the recusal of a judicial officer does raise a constitutional
matter within the meaning of section
167 of the Constitution of the
Republic of South Africa Act, 108 of 1996. The approach of that
Court is therefore decisive where
in para 48 of its decision it is
stated :
“
The question is whether a
reasonable, objective and informed person would on correct facts
reasonably apprehend that the Judge has
not or will not bring an
impartial mind to bare 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 the 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.”
Mr
Liddell
submitted before us that
First Respondent was shown a complete affidavit, whereas portions of
that affidavit were deliberately withheld
from the Applicants. It
would not be surprising for persons in the position of the
Applicants, charged with these offences, to wonder
what else was
deleted than material allegedly identifying an informant. Mr
Liddell
also submitted that when First Respondent issued the
search warrants he must have been satisfied with the averments
contained therein
and therefore issued the search warrants.
In a comprehensive judgment, the Magistrate shows
familiarity with the leading legal principles involved, referring at
the outset
to the well-known passage from the case of
THE KING v
SUSSEX JUSTICES, 1924, 1K.B. 256
,
“
A long line of cases shows
that is not merely of some importance but is of fundamental
importance that justice should not only be
done, but should
manifestly and undoubtedly be seen to be done.”
The Magistrate makes the point that he had to give
serious consideration to the question before him because
“
Ek is verantwoordelik vir
die verhoor van alle strafsake, siviele sake, kinderhowe,
onderhoudsake, gesinsgeweld interdikte en ander
kwasie-judisiële
funksies soos byvoorbeeld die oorweging van aansoeke om en uitreiking
van visinteringslasbriewe. 'n Beslissing
in hierdie verband het
verreikende gevolge met betrekking tot die wyse hoe ek my funksie in
die toekoms sal moet verrig.”
Dealing with the merits of the application before
him, the Magistrate said that he felt that the allegation that he had
been placed
in possession of more facts than the Accused was
unfounded. He explained the procedure in which applications for
search warrants
are granted or refused. Affidavits provided for
purposes of that request are returned to the person requesting the
search warrant.
He adds that it is impossible for him to remember
every part of the evidence placed before him. Accordingly he is
not, in his
view, in a better position than any accused before him.
Even if he had had additional information on the merits in this case
and
even if he had not forgotten it, he remains of the view that this
would not be a reasonable ground for recusal. The Magistrate then
refers to a number of authorities, which I do not consider to be
directly in point.
Cases which are more directly in point begin with
R v CAH KOO,
1919 TPD 311.
That case concerned the refusal of
a magistrate to recuse himself. When the trial before the magistrate
commenced, he had been asked
to recuse himself on the ground
that in a previous case in which one Abel,
with whom CAH KOO had been connected in the
unlawful sale of liquor, was tried, the magistrate had at the
conclusion of that trial
stated that there was a strong
prima
facie
case against CAH KOO. On that remark by
the magistrate at the former trial, the public prosecutor had
requested and been granted
a warrant for the appellant, CAH KOO’s,
arrest. The magistrate had decided on the authority of
SCHONKEN v
A.R.M. PRETORIA,
1916 TPD 256
,
that since he had not expressed
an opinion
‘outside of his ordinary duties,
he was not
disqualified from sitting in the case. In the case of CAH KOO,
CURLEWIS J held that the expression of opinion which the
magistrate
uttered about the strong
prima
facie
case was made in the course of the trial
and whilst giving judgment, and was not an expression of opinion
outside of his functions,
or in reference to something he had heard
in his private capacity; it was in the course of his duty as a
magistrate.
The matter came up for consideration in this court
in the matter of
MILLER AND ANOTHER v MAGENNIS,
1924 CPD 295.
There an application was made for an order restraining a certain
magistrate from presiding at the trial of certain applicants who
were
charged with offences against the liquor laws on the grounds that in
a previous prosecution against a third party before the
same
magistrate, the applicants had given evidence and had been compelled
to answer questions which tended to incriminate them.
It was also
alleged that in the course of the same trial the magistrate had
expressed disbelief in regard to their evidence and
that subsequently
he had issued a search warrant to search premises where the
applicants carried on business. GARDINER, J, at p297
of the report
commented that the legislature had chosen to lay down that a search
warrant has to be issued by a Judge, Magistrate
or Justice of the
Peace, because
“it is thought right that such warrant should
not be issued unless a judicial officer sanctions it”.
There
can, with respect, be no quarrel with that statement. He went on as
follows :
“
I do not see that by
issuing a search warrant on some probably not very detailed
information, possibly only information as to grounds
of suspicion, a
magistrate should be in any way prejudiced. I cannot conceive if I
were asked as a Judge to issue a search warrant
that it would
influence me if afterwards I were to sit as the Judge to decide a
case in which the person concerned was before me.”
The passage, with respect, illustrates the danger
of being the judge of one’s own impartiality. The reasonable
apprehension by
the person facing the Judge is all important.
GARDINER, J took comfort in the decision of R v CAH KOO
(supra)
.
In decisions in recent years Judges have been
reminded that one should not be unduly sensitive about applications
for recusal.
As HOWIE, JA (as he then was) said in
S v
ROBERTS, 1999[4] SA 915 [SCA] at 923
,
“
It is settled law that not
only actual bias but also the appearance of bias disqualifies a
judicial officer from presiding (or continuing
to preside) over
judicial proceedings. The disqualification is so complete that
continuing to preside after recusal should have
occurred renders the
further ‘proceeding’ a nullity.”
MöNNIG’
s
case,
1992[3] SA
[AD] 482 [AD]
is referred to, and also the remarks in
S v
MALINDI, 1990[1] SA 692 [AD] at 969 G-I,
where CORBETT, CJ said
that
“
The common law basis of
the duty of a judicial officer in certain circumstances to recuse
himself was fully examined in the cases
of S v RADEBE, 1973[1] SA 796
[A] and SOUTH AFRICAN MOTOR ACCEPTANCE CORPORATION [EDMS] BEPERK v
OBERHOLZER, 1974[4] 808 [T].
Broadly speaking, the duty of
recusal arises where it appears that the judicial officer has an
interest in the case or where there
is some other reasonable ground
for believing that there is a likelihood of bias on the part of the
judicial officer: that is,
that he will not adjudicate
impartially. The matter must be regarded from the point of view of
the reasonable litigant and the
test is an objective one. The fact
that in reality the judicial officer was impartial or is likely to
be impartial is not the test.
It is the reasonable perception of the
parties as to his impartiality that is important.”
In
SAGAR v SMITH, 2001[3] SA 1004 [SCA] at
1009,
MTHIYANE, AJA (as he then was) said the following :
“
What is said in respect of
a Judge applies equally to a Magistrate. In SOUTH AFRICAN COMMERCIAL
CATERING AND ALLIED WORKERS UNION
AND OTHERS v IRVIN & JOHNSON
LTD SEAFOODS DIVISION FISH PROCESSING, 2000[3] SA 705 [CC] … The
Constitutional Court further
elaborated on that test. It follows
that the test of ‘a reasonable apprehension of bias’ replaces
that of ‘a reasonable suspicion
of bias’ previously favoured by
this court. … The difference would appear to be one of semantics
rather than substance.”
Given that the first meaning of ‘
apprehension’
in the latest addition of the Concise Oxford English Dictionary is
‘anxious or fearful anticipation’
as opposed to the second
meaning of
‘understanding’,
I would agree with respect
with the last comment on p 1009 of SAGAR v SMITH. One reasonably
fears, or is anxious about something,
in a situation like this,
because one has a reasonable suspicion that something is untoward.
See
also
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA v SARFU
[supra]
at p 171 at paras [37] and [38],
which show that
the words
‘real danger’
or
‘reasonable apprehension’
or
‘suspicion’
have all been used to convey the same
idea.
Turning to
SLADE v THE PRETORIA RENT BOARD,
1943 T.P.D. 246
at 252
, one finds the remark, strange to modern
ears, that
“
Judges who are recused,
and submit to be recused, do not necessarily admit that if they had
to go on with the trial, they would do
an injustice.”
This, to borrow some words of HOWIE, JA in S v
ROBERTS, is really a view from the bench rather than a view from the
dock.
See S v ROBERTS
[supra]
at 926D.
BARRY, J in SLADE’s case
[supra]
went on at p255 to say that whether the impression was reasonably
created in the mind of the applicant that he would not have a fair
trial was what had to be considered by the Court.
On the facts of the present matter, there are two
principle areas of concern. The Applicants do not know what the
Magistrate read.
They only know that the Prosecutor told the Court
that only material which might have identified the informant had been
removed.
The affidavit in its original form is not before this
Court. Quite simply, there is no objective way of testing whether
it was
correct that nothing further had been shown to the Magistrate
than what the Prosecutor says. This, in my view, illustrates a
situation
where the Applicants would be entitled to form a reasonable
apprehension that the Magistrate may have been provided with more
information
than appeared
from these papers. This would be sufficient to
establish a proper basis for recusal.
My second difficulty is that the informant may
have testified at the trial and may have contradicted something which
he had said in
his affidavit, and which the Magistrate might remember
as being contradictory. Courts do not normally see witnesses’
statements
and, in a sense, the Court was provided with a witness’s
statement in this case.
The situation is more perilous if the witness
should not testify. A reasonable apprehension could certainly exist
that the information
which was important for the search warrant to be
issued, would also be important for conviction. If, at the trial,
there were
to have been no information connecting the accused – the
present Applicants - with drug dealing, other than the information
in
the affidavit which led to the search warrant, it would be
unfair, in the absence of a witness, for that information to play any
part in a finding of guilt. An accused person in the position of
Applicants would
certainly have reason to fear that a magistrate
might well remember what was said in the affidavit, when the witness
who testified
in advance of the search warrant does not testify at
the trial.
Dealing with the practical difficulties raised by
the Magistrate, it is, in my view, necessary for a magistrate in a
different town
to sign search warrants in situations like the present
one. Alternatively, if a local magistrate has signed a search
warrant after
seeing an affidavit of this kind, he or she should not
sit in a case, and a magistrate should be brought from a
neighbouring jurisdiction.
In my view, there is merit in the review brought
to this court and there will be an order in terms of para 1 of the
Notice of Motion.
________________________
J G FOXCROFT
DLODLO, AJ :
I agree.
________________________
D V
DLODLO
---ooo0ooo---
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL
DIVISION]
CASE NO : 9163/2002
In the matter between :
HENDRIK
SILWANA
First Applicant
CAROLINE
MTHI
Second
Applicant
and
THE MAGISTRATE FOR THE
DISTRICT OF
PIKETBERG,
MR P L GRUNDLINGH
First Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS FOR
THE
CAPE OF GOOD HOPE PROVINCIAL DIVISION
Second
Respondent
_______________________________________________________________________________
COUNSEL
FOR APPELLANT : Attorney R M Liddell
ATTORNEYS
FOR APPELLANT : Liddell & Weeber Inc
WYNBERG
COUNSEL FOR FIRST
RESPONDENTS : NONE
ATTORNEYS
FOR RESPONDENTS : STATE ATTORNEY
DATE[S]
OF HEARING : 30.06.2003
DATE OF
JUDGMENT
: 30.06.2003