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2024
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[2024] ZALMPPHC 133
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Mokgomole v Sekwela (REV76/2024) [2024] ZALMPPHC 133 (18 July 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO LOCAL
DIVISION, POLOKWANE
CASE NO: REV/76/2024
(1)
REPORTABLE: YES/
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE: 18/7/2024
SIGNATURE: TC TSHIDADA J
In the matter between:
CHARMAINE
MOKGOMOLE
Plaintiff
and
LYDIA
SEKWELA
Defendant
REVIEW JUDGMENT
TSHIDADA J.
[1] The plaintiff
initiated and launched an action proceeding at Tzaneen Regional
Magistrates Court sitting as a circuit court in
Lenyenye for damages
arising from the injuries sustained by her minor child caused by
defendant's dog bite. This is an action commonly
referred to as
actio
de pauperie
or a lawsuit against a dog owner/handler and/or any
animal alleged to have caused damage, physical or otherwise to
another person.
[2] Regional Court
Magistrate, Ms CT Honwana presided over the above referred trial
matter. Both parties were legally represented
up to a stage when the
presiding. officer had to suspend the proceedings pending the outcome
of the current special review which
she commissioned per her referral
letter attached to the trial record hereof.
[3] It is indicated and
recorded that at a certain point during the course of the trial, the
defendant launched an application seeking
the court to conduct an
inspection
in loco
of the place where the incident in question
occurred. The application was accordingly granted. Court was then
adjourned, the presiding
officer, the parties and necessary court
officials were all escorted by the court orderlies (SAPS) to the
alleged scene to inspect
the setup of the area and possible
measurements of distances from one point to the other.
[4] Upon return and
resumption of the court proceedings, the defendant's counsel took the
lead and immediately launched an application
for recusal of the
presiding Magistrate from presiding over the trial.
[5] The basis and
grounds, for the application were apparently premised on the remarks
allegedly made by the presiding officer shortly
before the inspection
was conducted at the premises where the dog bit& allegedly
occurred, which remarks according to the defendant
caused her to
apprehend a perception that the presiding officer might not be
objective and impartial and likely to be biased if
she were to
continue presiding over the pending trial.
[6] The presiding officer
is alleged to have made the following remarks (sic):
[6.1]
whether the dogs
at the premises to be inspected will impose any danger without
provocation.
[6.2]
further publicly
remarked that she had once been bitten by her own dog before.
[7] Defendant's counsel
submitted that the pending trial related to a minor child who was
bitten by a dog and that their defense
rested on provocation of the
dogs before the. child was bitten and that comments made by the
presiding officer were sensitive and
had a close correlation to the
main issue to be determined by the trial court, a reason which
triggered the defendant to apprehend
a possibility of subjectivity
and partiality on the part of the presiding officer, largely on a
suspicion of her similar and previous
experience of her own dog bite.
[8] Defendant's
insinuation on the presiding officer was that, having regard to her
earlier remarks, defendant is likely and presumably
to be subjected
to an unfair trial and prejudice if the Magistrate was not to recuse
herself.
[9]
Section 34 of the Constitution
[1]
of the Republic of South Africa guarantees everyone of a right to
have any dispute that can be resolved by application of the law,
decided in a fair public hearing before a court or where appropriate,
another independent and impartial tribunal or forum.
[10] Courts are therefore
required to apply the law equally, impartially and without fear,
favour and/or prejudice. Presiding officers
are required to uphold
and protect the Constitution and the Rule of Law in the process of
administering and discharging justice
to all citizens/litigants
before them who seek justice through our courts of law, without
subjecting themselves to any possible
conflict of interest there
might be in any litigation proceedings they are ceased with.
[11] Confronted with the
reasons for her recusal, the presiding officer endeavored to
contextually clarify her contended remarks
and stated the following,
that indeed upon their arrival at the premises to be inspected, she
admitted to have had an open informal
chat with the court interpreter
of her previous experience of being bitten by her own dog. She
further stated on record that shortly
before they could commence with
an inspection a young man emerged from the premises and she openly
asked him if the dogs which
she had observed close to the gate where
they were to enter through were chained for the safety of everyone
who was there for purposes
of conducting the inspection.
[12] The presiding
officer indicated that at no stage did she elaborate the
circumstances under which her own dog ended up biting
her because it
was of no consequence to the matter before her. Secondly, that the
sole reason why she asked if the dogs will not
impose danger
unprovoked and/or whether the dogs at the premises were chained or
not was merely a safety precaution she decided
to enquire about for
the safety of everyone present outside before entering the premises
without any attribution whatsoever to
the trial before her.
[13] She stated her
previous encounter and experience of her own dog bite would not have
influenced her finding and decision in
anyway, neither did she intend
to use it as her guiding reference to the finding on the trial before
her.
[14] Beset with the
application, she ultimately recused herself from the main trial,
however as a cautionary measure towards uncertainty
of her ruling,
she ordered that the matter be referred to the court for a review.
[15]
The issue to be reviewed and determined by this court is to establish
and find whether the remarks or comments made by the
presiding
officer at the inspection and complained of by the defendant were
inappropriate to a reasonable, objective and informed
person to
reasonably apprehend and assume that the presiding officer has 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 to be made by counsel. See in this regard
President
of the Republic of South Africa and Another v South African Rugby
Football Union and Others
[2]
and/or
whether the apprehension itself was in the circumstances reasonable
as per Cameron J's dictum in
South
African Commercial Catering and Allied Workers Union v Erwin and
Johnson Limited Seafoods Division Fish Processing
[3]
.
[16] The test and
consideration referred to the authorities
supra
must be
sufficiently demonstrated and satisfied against a presiding officer
by the applicant before contemplating that justice will
not be
served, should the presiding officer continue to preside over the
matter under the circumstances that justify his/her recusal.
[17] It is inconceivable
to perceive that the afore-stated remarks allegedly made by the
presiding officer, in particular her previous
experience of her own
dog bite could presumable influence her to find against the defendant
before outside and without considering
the evidence that would have
been presented before court.
[18] Defendant failed to
place sufficient and reasonable facts in support of her apprehension
of possible biasness on the presiding
officer to suggest that even
before hearing evidence
in casu,
the officer harbors a grudge
against any dog owner and that she was so disgruntled to the extent
that she desired to punish any
dog owner whose dog may have been
found to have bitten someone for she sought to satisfy or avenge her
previous experience on the
defendant.
[19] The afore-going
imputation if anything in my view, would make no realistic sense. I
would not imagine any presiding officer
who fully comprehends and
understands the duties and responsibilities entrusted on judicial
officers by the Constitution if he/she
would allow to be guided and
influenced by ones' own personal experiences before pronouncing any
ruling or judgment in a matter.
Ordinarily every human being would
have or had one or more bad personal experience/s in the daily course
of our lives like the
presiding officer in this regard which do not
necessarily and cannot be presumed to influence ones' future
decisions.
[20] It is my considered
view that the apprehension of bias based on the remarks herein was
unreasonable and premature, because
the defendant has not even
allowed the presiding officer an opportunity to continue handle and
manage the proceedings before she
was suspected of potential bias.
Nothing prevented the defendant from allowing the trial to proceed
and await any untoward behavior
or unsavory management of the trial
before rushing to abort the trial when no wrongdoing has ensued or
demonstrated by the court.
[21] It was equally
undesirable for the presiding officer to recuse herself from the
trial on the basis of defendant's unsubstituted
grounds for recusal.
[22] It is therefore my
conclusion that the defendant failed to make out a case based on
reasonable apprehension of bias justifying
recusal by the presiding
officer ceased with the matter.
[23] Therefore, the
presiding officer's decision to recuse herself from the matter over
the impugned remarks was unjustified and
stands to be reviewed and
set-aside. Recusal application are not to be loosely granted on
unfounded reasons simply because such
retort may result into travesty
and inordinate delay in the administration of justice within a
reasonable and speedy manner.
[24] In light of the
afore-going, I make the following order.
[24.1] The recusal order
granted by the presiding officer
a quo
on 23 March 2023
is hereby reviewed and set aside.
[24.2] The above-stated
recusal order is substituted with the following order;
[24.1.1] that Regional
Court Magistrate one Ms. CT Honwana is hereby ordered to re-enrol and
notify both parties when their pending
trial referred to herein shall
proceed at Tzaneen Regional Magistrates Court, sitting as a circuit
court in Lenyenye with immediate
effect.
T.C. TSHIDADA
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
POLOKWANE
I agree
N GAISA
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO
DIVISION,POLOKWANE
[1]
Act
108 of 1996
[2]
(CCT16/98)
[1999] ZACC 11
[3]
(CCT2/00)
[2000] ZACC 10