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[1989] ZASCA 175
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S v Malindi and Others (174/89) [1989] ZASCA 175; [1990] 4 All SA 433 (AD) (15 December 1989)
IN THE SUPREME COURT OF SOUTH AFRICA'
(
APPELLATE DIVISION
)
In the matter between:
GCINUMUZI PETRUS MALINDI First Appellant
TSIETSI DAVID MPHUTHI Second
Appellant
NAPHTALI MBUTI NKOPANE Third Appellant
TEBELLO EPHRAIM
RAMAKGULA Fourth Appellant
SEKWATI JOHN MOKOENA Fifth Appellant
SERAME
JACOB HLANYANE Sixth Appellant
THOMAS MADIKWE MANTHATA Seventh
Appellant
HLABENG SAM MATLOLE Eighth Appellant
POPO SIMON MOLEFE Ninth
Appellant
MOSIUOA GERARD PATRICK LEKOTA Tenth Appellant
MOSES MABOKELA
CHIKANE Eleventh Appellant
and
THE STATE Respondent
CORAM
: CORBETT CJ, BOTHA, SMALBERGER,
KUMLEBEN, JJA, et NICHOLAS AJA.
DATE OF HEARING
: 27 November
1989
DATE OF JUDGMENT
: 15 December 1989
/
JUDGMENT
...
JUDGMENT CORBETT
CJ:
The eleven appellants, together with eleven
others, appeared before Van Dijkhorst J and two assessors in the Transvaal
Provincial
Division on charges of treason, alternatively terrorism (in terms of
sec 54(1) of the Internal Security Act 74 of 1982), subversion
(in terms of sec
54(2) of Act 74 of 1982), murder (five counts) and, after an amendment to the
indictment granted on 4 November 1985,
furthering the objects of an unlawful
organization (in terms qf sec 13 of Act 74 of 1982). After a trial lasting
approximately three
years (believed to be the longest in South African legal
history) and in November 1988 certain of the appellants were convicted of
terrorism and the remaining appellants were found guilty of treason. In all
cases sentences of imprisonment were imposed, but in
some
3
instances the sentence was suspended.
The Court a
quo
granted leave to appeal to this Court, on certain
grounds, to those of the appellants who
had been convicted of treason and
also made certain special entries. On 24 August 1989 this Court (consisting of
Botha JA, Nicholas
AJA and myself) heard an application on petition by the
appellants for an order in terms of AD Rule 13 decreeing,
inter alia
,
that two of the special entries, numbered 1 and 2 by the trial Judge, be argued
and adjudicated upon in
limine
and separately from the main appeal, and
that for this purpose only a limited portion of the whole record, being the
papers contained
in annexure "A" to the petition, be placed before the Court. (I
shall call this "the preliminary application".) The preliminary application
was
opposed by the State. During the course of the hearing the petitioners applied
for the amendment of special entry number 1 (which
contained four parts,
numbered
4
1.1, 1.2, 1.3 and 1.4) by the substitution of a newly-worded part 1.2.
On 25 September 1989 this Court gave judgment on the preliminary
application,
allowing the amendment and granting an order directing that the appeál on
special entry no 1 (as amended) be
heard as a preliminary appeal, separately
from the main appeal, and on the record comprised of annexure "A". On 28
November 1989
this Court heard argument on the preliminary appeal and reserved
judgment. I now proceed to give that judgment and in doing so to
deal with
special entry no 1.
The events giving rise to special entry no 1 occurred on 9 and 10 March 1987.
At that stage the trial had been in progress for some
seventeen months. In terms
of sêc 145(2) of the
Criminal Procedure Act 51 of 1977
("the
Act") the
trial Judge had summoned as assessors to assist him at the trial Dr W A Joubert,
formerly dean of the Faculty of Law of the University
of South Africa and as
from
5 1980 an honorary professor of that univérsity, and Mr W F
Krugel, the president of the Regional Court for the Northern Transvaal.
Until 10
March 1987 these two assessors had sat with the trial Judge throughout the
hearing of the case. On that date and at the
commencement of the proceedings for
the day the trial Judge made an order in terms of
sec 147(1)
of the
Act, holding
that Dr Joubert had become unable to act as assessor in the case and directing
that the trial proceed before the remaining members
of the Court, ie himself and
Mr Krugel.
This order was preceded by a statement by the trial Judge, in which he
explained the reasons for making the order. The full text of
that statement is
set forth in the judgment on the preliminary application, delivered by Nicholas
AJA. In brief it amounts to this.
The case of the State against the appellants
was that they, acting in concert under the banner of an organization known as
the
6
United Democratic Front ("UDF"), which had been called into being by the
African National Congress, embarked upon a campaign aimed
at making the Republic
of South Africa ungovernable and at overthrowing the lawful government of the
country by violence. To this
end it was necessary to unite and activate "the
Black masses" to participate in acts designed to attain these goals. A programme
of action adopted by the UDF in order to achieve this included a campaign to
obtain the signatures of a million persons in support
of the UDF's opposition to
the new constitution sponsored, by the government and the so-called "Koornhof
Bills" (which dealt,
inter alia
, with Black local government). This was
referred to as the Million Signature Campaign ("MSC"). The MSC was, in the words
of the trial
Judge, "an important facet" of the State case and it consequently
merited "dispassionate and unfettered consideration" by Judge and
assessors.
When he initially
7
approached Dr Joubert and Mr Krugel to act as assessors in the case he
enquired whether . they "had any relation'ship" with the UDF.
They had both
replied in the negative. During the morning of 9 March 1987 one of the
áccused was' cross-examined about the
MSC. In the course of a discussion
of the case in the tea adjournment Dr Joubert informed the Judge that he himself
had in fact participated
in the MSC by signing one of the declarations. The text
of such a declaration reads as follows:
"WE, the freedom-loving South Africans,
declare for the whole world to know that:
WE reject apartheid
WE support the struggle and unity of our people against the evils of
apartheid
WE stand for the creation of a non-racial democratic South Africa free of
oppression, economic exploitation and racism.
WE say:
8
NO to the new constitution because it will further entrench
apartheid and white domination
NO to the Koornhof Laws which will deprive
more and more African people of their birthright
YES to the United Democratic Front (UDF), and give it our full support in its
efforts to unite our people in their fight against the
constitution and Koornhof
Bills."
The Judge was perturbed at the implications of this revelation and during the
night of 9/10 March considered the matter from all angles
and consulted the
Judge-President of the Transvaal Provincial Division". He thereafter came to the
conclusion "regretfully" that
there was no option but to "rule that Dr W A
Joubert (had) to recuse himself"; and he accordingly made the order referred to
above.
The extent to which the matter was discussed by the learned Judge with Dr
Joubert, and the opportunity given
9
for such discussion, prior to the announcement in Court on 10 March, are
matters upon which there is some disput'e. It is clear, however,
that Dr Joubert
did not consider that there were adequate grounds for his recusal and did not
wish to withdraw from the case. Nor,
it would seem, was he specifically told
before going into court that day of the statement and order which the trial
Judge proposed
to make. It is also clear that prior to the announcement the
parties, ie the accused and the State, had no inkling of what was afoot
and were
not given any opportunity tó debate the matter or place their views
before the Court. Moreover, it appears that the
learned Judge proceeded in this
manner "after due deliberation" and that he was of the view that the decision,
once taken, could
not be reconsidered.
Thereafter, on 30 March 1987, the accused, having previously reserved their
rights in this regard, brought an
10
application for the quashing of the trial on three separate
grounds, alternatively for the recusal of the Judge, and further alternatively
for the recusal of the other assessor, Mr W F Krugel. The three (alternative)
grounds for quashing the trial were (i) that the dismissal
of Dr Joubert as
assessor was made without power and that the Court then hearing the trial was
not a properly constituted court;
(ii) that the dismissal constituted a material
irregularity so gross that the accused could no longer properly be tried by the
court
hearing the trial; and (iii) that the failure by the Judge to hear the
accused on how the discretion given to him by
sec 147
of the
Act should
be
exercised, prior to ruling that the trial be continued before himself and the
remaining assessor, constituted a material irregularity
which could not then be
remedied and in consequence whereof the trial could not' properly be
continued.
During the course of argument on these
11
applications the trial Judge gave rulings on the admissibility
of certain reports, and the applications for recusal were withdrawn.
At the
conclusion of the argument Van Dijkhorst J dismissed the application in
toto
and about a week later handed down his reasons for doing so. This
statement of reasons has been reported (see
S v Baleka and Others (4)
1988 (4) SA 688
(T) ) and I shall refer to this as "the reported judgment". The
trial thereafter proceeded before the trial Judge and Mr Krugel to
the eventual
verdicts and sentences described above.
The special entry (no 1) which this Court ordered to be considered in
limine
by way of a preliminary appeal
reads as follows:
"1.1 The trial judge wrongly construed
Section 147(1)
of the
Criminal
Procedure Act No 51 of 1977
as being applicable to the circumstances described
in the statement made by him. on 10 March 1987,
12
as a result of which, and without hearing any argument thereon, he wrongly
concluded that he had the power to rule that in such circumstances
Dr W A
Joubert had become unable to act as assessor.
1.2 Thereafter, and on 10 March 1987, the
trial judge, purporting to act
in terms
of
section 147(1)
of the
Criminal
Procedure Act, No 51 of 1977
,
acted
irregularly by ruling, without hearing
any argument thereon, that
the assessor
Dr W A Joubert, had to recuse himself
and had become unable
to act as
assessor, notwithstanding that no
application for recusal had been made
either by the State or the accused, that
Dr Joubert was not willing to recuse
himself and that he was willing to
continue as assessor.
1.3 Thereafter, having made such a ruling,
and without hearing any
argument
thereon, the trial judge irregularly
continued the trial before
an improperly
constituted Court consisting of himself
13
and the remaining assessor Mr W F Krugel and/or
1.4 During the course of the application for the quashing of the trial and
the recusal of the trial judge
alternatively
the assessor Mr W F Krugel,
the trial judge having made a statement on the morning of 30 March 1987,
thereafter ruled that paragraph
6 of the second report of Dr W A Joubert, and
the whole of the third report (which he refused to read notwithstanding the fact
that
to his knowledge it had come to the attention of the Accused) were
inadmissible, and that the Accused had to accept the correctness
of and could
not contradict what he had put on record
in his statement, and thereby made it impossible for the Accused to rely on
the contents of the third report and paragraph 6 of the
second report, and make
submissions which, but for such ruling, would have been relevant to and relied
upon in the application for
the quashing of the trial."
14 The special entry
thus raises four distinct points. In truth there are four special entries. The
first of these is, in effect,
that the power vested in the trial Judge by
sec
147(1)
of the
Act to
determine that an assessor has become "unable to act" as
such does not pertain to the case where, as here, the alleged inability
consists
of what would amount to a ground for the recusal of the assessor concerned. This
is a question of law which depends upon
the construction of
sec 147(1).
Section 147(1)
reads as
follows:
"If an assessor dies or, in the opinion of the presiding judge, becomes unable
to act as assessor at any time during a trial, the
presiding judge may direct
-
(a)
that the trial proceed before the remaining member or members of the
court; or
(b)
that the trial start de
novo
, and for that purpose summon an assessor in the place of the
assessor who has died or has become unable to
act as
assessor".
15 The Afrikaans text reads:
"Indien 'n assessor të eniger tyd gedurende 'n verhoor sterf of, na die
oordeel van die voorsittende regter, onbekwaam raak
om as assessor op te tree,
kan die voorsittende regter gelas
-
(a) dat die verhoor voor
die
oorblywende lid of lede van die hof
voortgaan; of
(b) dat die verhoor de
novo
begin, en
te dien einde 'n assessor
oproep in
die plek van die assessor wat
gesterf het of onbekwaam geraak
het
om as assessor op te tree".
Although/the Afrikaans version is the signed version, it is only wh'ere the
two versions conflict, ie are not capable of reconciliation,
that the Afrikaans
version prevails. Where the meaning of one version is wider than the other, then
they may be reconciled by regarding
what is common to both
versions as
conveying the legislative intent (see S v
Moroney
1978 (4) SA 389
(A),
at 407 G - 408 G).
16 The critical words in
sec 147(1)
are
"becomes
unable to act as assessor at any time
during a trial" (Afrikaans: "te eniger tyd gedurende 'n verhoor...onbekwaam raak
om as assessor
op te tree"). The Oxford English Dictionary gives as the first
two meanings of the word "unable", used adjectivally, the following:
"1. Not able, not having ability or power,
to
do or perform (undergo
or experience) something specified. (Chiefly of persons.)
2. Of persons: Lacking ability in some implied respect; incompetent,
inefficient."
A third meaning, reading -
"3.a Of persons: Incapable of, not qualified for, some position."
is marked obsolete, the latest known instance of its occurrence having been
in the 15th century.
17 The relevant meaning of the word "onbekwaam" is,
according to H A T (Verklarende Handwoordeboek van die Afrikaanse Taal) -
"Sonder kundigheid, onbedrewe, ongeskik".
The word "unable", in the context of
sec 147(1)
, conveys to my mind an actual
inability to perform the function of acting as an assessor. Such an inability
could derive from an
inherent physical or mental condition or possibly also a
situation which physically prevented the assessor from attending the trial,
such
as for example indefinite detention here or in a foreign country. I do not
think, however, that the word "unable" is appropriate
to describe or comprehend
the situation where an assessor becomes legally incompetent to continue to act
in a case because of some
act or occurrence which warrants his recusal. I am
also doubtful whether the word "onbekwaam", even in the sense of "ongeskik", is
wide enough to
18 comprehend such a situation; but even if it is, it seems to
me, applying the principles enunciated in
S v Moroney
,
supra
, that
the ambit of
sec 147(1)
should be restricted to what is common in the meaning of
"unable" and "onbekwaam".
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) Bpk v Oberholzer
1974 (4) SA 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
19
impartial is not the test. It is the reasonable perception of
the parties as to his impartiality that is important.
Normally recusal would follow upon an application (
exceptio
recusationis
) therefor by either or both of the parties, but on occasion a
judicial officer may recuse himself
mero motu
, ie without any such prior
application (see
S v Suliman
1969 (2) SA 385(A)
, at 390 F-G, 391 B - C;
also
R v H
1955 (2) SA 288
(T) and
The State v Stevens
1961 (3) SA
518
(C) ). In
R v H
, where the assessors through their association with
another case were acquainted with
certain áctivities of a witness called in the case and this
knowledge caused them to have an opinion as to his
credibility which prevented them from having an unbiased
approach in the
matter, Murray J discharged himself and the
assessors. As examples of the
case where a party sought by
way of application the recusal of an assessor or
the setting
aside of the proceedings on the ground that the assessor
20
should no longer sit in the case, see
R v Matseqo and Others
1956 (3) SA
411
(A);
S v Apolis
1965 (4) SA 178
(C); S_v
Gcaba
1965 (4) SA 325
(N);
S v Moseli en 'n Ander (2)
1969 (1) SA 650
(O). In
Matsego
's
case there was communicated to an assessor prior to the delivery of judgment
information of a most damaging nature concerning one
of the accused. An
application to the Judge, sitting alone, for an order setting aside the
proceedings, or alternatively for an order
that the Court recuse the assessor or
declare him incapable of continuing to act, was dismissed. On appeal Centlivres
CJ expressed
the view (at p 417 H) that the trial Judge ought to have acceded to
the application, quashed the proceedings and directed a new trial.
It would thus seem that at common law the recusal of an assessor is a
proceeding in open court and that it is an issue upon which
the parties would be
afforded an opportunity to be heard. Obviously this would be so where
21
one of the parties moved for the assessor's recusal; and, in my
opinion, it should also be so even where the assessor or the court
acts
mero
motu
. A recusal would normally result in the proceedings being quashed and a
new trial being directed.
A proviso to
sec 145
(2) of the
Act, which
empowers the presiding judge to
summon not more than two assessors to assist at the trial, provides that -
"..where the offence in respect of which
the accused is on trial is an offence for which the sentence of death is a
competent sentence, the presiding judge shall, if he is
of the opinion that, in
the event of a conviction and having regard to the circumstances of the case,
the sentence of death may be
imposed or may have to be imposed, summon two
assessors to his assistance."
It is
common cause that in the present case the trial Judge
22
was obliged, in terms of the proviso, to sit with
two assessors. (Cf.
S v Malinqa
1987 (3) SA 490
(A), at 495
I).
An assessor appointed in terms of
sec 145
is a member of the Court and
participates in all decisions of the court on guestions of fact. Where the judge
sits with two assessors
the decision of the majority (on factual questions)
constitutes the decision of the court. Where, on the other hand, the judge sits
with only one assessor, then in the event of a difference of opinion the
decision of
the judge prevails
(sec 145
(4) ). An accused person has a
right to have his case considered by every member of the
fact-finding tribunal (see
R v Price
1955 (1) SA 219
(A), at
224 D
- E) and it is especially important that this should
be so in cases covered
by the proviso to
sec 145(2).
(See
also
R v Mati and Others
1960 (1)
SA 304
(A), at 306 F; S_y
Malinga
,
supra
, at 498 I - J;
S v
Gqeba and Others
1989 (3)
23
SA 712 (A), at 718 A - C.) And, as was pointed
out by
Grosskopf JA in
Ggeba
's case,
supra
, at 718 B - C, although
sec
147(1)
of the
Act does
permit, in certain circumstances, the continuation of a
trial without one of the assessors even in cases covered by the proviso to
sec
145(2)
, these circumstances should not be extended beyond those clearly falling
within the language of
sec 147(1).
Having regard to the aforegoing, I am of the view that it is very unlikely
that the Legislature intended the provisions of
sec 147(1)
to cover cases where
there were
grounds for the recusal of an assessor. It would amount to
a drastic alteration of the common law relating to the recusal of assessors,
particularly in the procedural sphere: it would permit
of the continuation of
the case before an attenuated tribunal, even where the law demanded the initial
appointment of two assessors,
in circumstances where under the common law the
proceedings would have been quashed.
24 Had this been the aim of Parliament I would have expected a clearer
indication of the legislative intent.
Sec 147(1)
has reference in terms to an assessor who -
"....becomes unable to act as assessor at
any time during
a
trial
...." (My emphasis.)
The ,words emphasized indicate, to my mind, an inability to act which occurs
or comes into being during the trial. The words do not
cover the situation where
the inability existed
prior to the inception of the trial and persisted
during the
trial. I shall elaborate on this point later, but if the
correctness of this interpretation be accepted, then it tends to confirm
the
notion that "unable" was not intended to comprehend the recusal situation.
Though the
causa
for a recusal may relate to something which occurs
during the course of the trial, it often relates to some fact or circumstance
which existed prior to the commencement of the
25
trial. The Legislature could hardly have
overlooked this and consequently the express words in
sec 147(1)
limiting the
inability to one that comes into existence during the trial are a pointer to the
subsection not having been intended
to apply to cases of recusal. This is in
contrast to cases of inability such as physical or mental infirmity, which would
normally
not have existed at the time when the judge chose the assessor and
invited him to act in the case: for obviously had they then existed
the assessor
would not have been so appointed.
In argument counsel for the State placed much
emphasis ,on the history of the legislation and argued that
this showed an intention that "unable" ("onbekwaam") should
cover recusal cases. In my opinion, the legislative
history tends to point the other way.
In this regard it is necessary to go back to the Criminal Procedure and
Evidence Act 31 of 1917. This Act
26 provided for trial by jury and in
certain circumstances for trial by a judge without a jury. In the latter case
the judge had a
discretion to summon two assessors to act with him "in an
advisory capacity" on questions of fact (sec 216). Sec 216 was amended
by the
substitution of a new section in 1935 (see sec 36 of Act 46 of 1935). The new
section retained the general discretion of the
judge to summon assessors to his
assistance, but made this obligatory in certain cases, including where the
accused was charged with
treason, murder, rape or sedition. At the same time the
assêssors were made full members of the court on guestions of fact.
Sec
214 of Act 31 of 1917 made provision for what was to happen if the judge became
"incapable" (Dutch: "onbekwaam") of proceeding
with the trial or directing the
discharge of the jury or if at any time during the trial a juror died or became
in the opinion of
the judge "incapable" (Dutch: "onbekwaam") of continuing
27
to act as a juror or was absent. In thé
latter events the judge might in his discretion discharge the jury or, at the
request
of the accused and with the consent of the prosecutor, discharge the
juror concerned and direct that the trial proceed with the remaining
jurors
(sub-sec (3) ).
There were, however, at that stage no corresponding
provisions in Act 31 of 1917 to cater for the situation where an assessor died
or became incapable. This deficiency was exposed in 1954 by the decision of this
Cour.t in
R v Price
1955 (1) SA 219
(A). In that case (in which it was
essential that there be two assessors) an assessor died during the course of the
trial. The defence
made application for an order that the case proceed before
the Judge and the remaining assessor. The application was supported by
counsel
for the Crown and granted by the Judge. Subsequently, after conviction and
sentence, one of the accused appealed. On a special
entry, this Court held
that
28
the court had no power to make the order which it
did; that the appellant had been convicted and sentenced by an improperly
constituted
court; that this was an irregularity which could not be waived by
the accused; and that the convictions and sentences had to be set
aside.
The
Legislature reacted swiftly to the decision in
Price
's case. Sec 33 of
Act 29 of 1955 (which was assented to on 10 May 1955) introduced into Act 31 of
1917 a new section, sec 216
bis
, which made provision for the judge being
vested with the power, in the event of an assessor dying or becoming in the
opinion of
the judge incapable of cbntinuing to act as assessor, to direct that
the trial proceed without such assessor. A distinction was drawn
betwêen
cases where the judge was obliged to summon assessors and cases where he was not
so obliged. In the former type of
case the judge could continue with the
remaining assessor only with the consent of the accused and
29
the prosecutor; in the latter type of case he
could do so without such consent.
In 1955 a new Criminal Procedure Act 56 of 1955 (assented to on 22 June 1955)
replaced Act 31 of 1917. The provisions of sec 214 (relating
to what happens
when a judge becomes incapable or a juror dies, becomes incapable or is absent),
of sec 216 (relating to the power
of a judge to appoint assessors) and of sec
216
bis
(relating to what happens when an assessor dies or becomes
incapable) were re-enacted in (respectively) secs 149, 109 and 110 of
Act 56
of
1955 in virtually the same form. In 1959 sec 109(2) was
amended by the deletion of the proviso making the
appointment of assessors obligatory in certain cases (sec 5
of Act 75 of
1959). This resulted (in 1963) in a
consequential amendment to sec 110 (sec 9
of Act 92 of
1963), eliminating the distinction between cases where
the
assessors were obligatory and where not, and simply giving
30
the judge the power, in all cases and without the
consent of the parties, to continue the trial without the assessor who had died
or become incapable.
In 1969 trial by jury was abolished (Abolition of Juries Act 34 of 1969). In
terms of sec 4 of this Act a
new sec 109 was substituted in Act 56 of 1955.
The new section amended the original in some respects, but sec 109(2), as
amended,
relating to the appointment of assessors remained the same. Sec 149 was
repealed, together with the rest of the chapter relating
to jury trials; and a
new sec 110 was substituted, without substantial amendment being made
theréto.
Then came the enactment of the current
Criminal Procedure Act 51 of 1977
.
This re-introduced the principle, though in different terms, of assessors being
obligatory in certain cases (see
sec 145
, referred to above) and it dealt in
sec
147
with the situation where during the
31
trial an assessor dies or becomes unable to act.
The main differences between
sec 147
and its predecessor,
sec 110
of Act 56 of
1955, as amended, are -
(1) the change of language - from "incapable" to
"unable" - in relation to
the assessor who ceases
to act; and
(2) the alternative power given to the judge to start
the trial de
novo
and for that purpose to summon a
new assessor. (Under sec 110(3),
as amended, it
was simply provided that if the judge did not
direct the
trial to proceed, the accused if not
on
bail, should remain in custody and
might be tried
again.)
So far as I am aware, there is no decided
case in our law in which the term "incapable" in the sections relating to the
incapacity
of jurors or in the previous sections (ie prior to the enactment of
Act 51 of 1977)
32
relating to the incapacity of assessors has been
held to include the case where there is ground for the recusal of a juror or
assessor,
as the case may be. Two cases involving the recusal of jurors which
were cited to us, viz
Rex v Katzeff
1944 CPD 483
and
R v Gubudela and
Others
1959 (4) SA 93
(E), tend to support a contrary view. In
Katzeff
's case the defence brought it to the attention of the Judge
(Davis J) that after hearing the accused's story and before the conclusion
of
the case a juror had expressed the opinion that the accused was guilty. The
juror admitted that he had said "something of the
kind". The Judge ordered the
discharge of the jury and a re-trial before another jury. He indicated that this
was the only course
open to him. Obviously the learned Judge did not consider
that this was a case falling under sec 214 (as amended in 1935) of Act
31 of
1917, though admittedly no express reference was made to this section. In
Gubudela
's case,
supra
, a juror was heard
33
to remark during the trial that the accused looked to him
"like a bunch of cut-throats". The presiding Judge (O'Hagan J) held that
the
trial could not proceed before the jury as constituted. He continued (at 95 G -
96 B) -
"The only other guestion with which I am
concerned is whether I should discharge this particular juror or discharge the
jury as a whole. There is a passage at p 390 of
Gardiner & Lansdown
which suggests that sec 149(3) of the Act authorises and empowers the discharge
of a single juror in a case such as this and a continuation
of the trial before
the remaining jurors. I very much doubt if sec 149 has anything to do with the
kind of situation that has arisen
in this case. Sub-sec (3) of sec 149 refers to
the case where a juror dies or becomes incapable of serving as a juror. I am
inclined
to think that the incapacity referred to in the section is a physical
or mental incapacity and that it is not the sort of incapacity
which arises from
the conduct of a juror during the trial. This section in
the
34
present Act 56 of 1955 repeats the terms of sec 214(3) of the old Criminal
Procedure Act, 31 of 1917, and I have found that in the
Cape Provincial Division
the Court on finding that during the course of a trial a juryman had expressed
the view, after having heard
the accused's evidence, that the accused was
guilty, ruled that the jury should be discharged and the trial start de
novo
. I refer to the case of
R v Katzeff
,
1944 CPD 483.
I need not
deal with the facts of that case but they are not dissimilar to the facts in the
present cáse. It seems to me that
I must regard what has happened in this
case as an emergency which has arisen in the
course
of the trial. In
my opinion it would be
inexpedient for the interests of justice for
this trial to proceed before the jury as now
constituted. On
the authority of
Katzeff
's
case I think I should discharge the
whole
jury."
Matsego
's case,
supra
, related, as I have indica-ted, to an assessor to whom information
of "a most damaging nature" concerning one of the accused had
been
communicated.
35
An application was made to the trial Judge for an order
setting aside the proceedings, alternatively for an order that the Court should
recuse the assessor concerned or de-clare him incapable of continuing to act as
an assessor and discharge him. The trial Judge dismissed
the application. On an
appeal it was held that the trial Judge had erred and that he should have
acceded to the request by counsel
for the appellant to quash the proceedings and
direct a new trial (at 417 H). It was not suggested by this Court that it had
been
open to the trial Judge, in terms of sec 110 of Act 56 of 1955, to continue
the trial with one assessor, with thê consent of
the parties.
Counsel for the State referred to sec 202 of Act 31 of 1917, which provided
as follows:
"If a juror is personally acquainted with any relevant fact, it is his duty to
inform the judge that such is the case, whereupon
he may be sworn, examined, and
cross-examined in the
36
same manner as any other witness or the judge may discharge, him as incapable,
and in that event the provisions of sub-section (3)
of section
two hundred
and fourteen
shall apply."
They
argued that this section indicated that the Legislature regarded the word
"incapable" (Dutch: "onbekwaam") as covering a recusal
situation. I am not
impressed by this argument. It could equally well be argued, especially by
reason of the words "as incapable",
that the Legislature was bringing within the
concept "incapable" a factual situation which would not normally fall
thereunder. Moreover,
the situation described in sec 202 is not really a typical
case of recusal. Indeed it is of some significance that when the Legislature,
in
sec 201, was dealing with typical grounds of recusal it used very different
language. The relevant portion of this section read:
"If, before or after a juror has been sworn, it appears to the court from his
own
37
statement that he is not impartial as between the prosecution
and the accused or that, for any other reason, he ought not to be allowed
or
required to act as a juror on the trial, the court may,.....".
It is also of significance, in my view, that after
the decision in
Gubudela
's case the Legislature retained the
same wording for sec 149(3), relating to a juror becoming
incapable, and for sec 110, relating to the incapacity of an
assessor. Nor
was any attempt made, it would sêem, to
expressly include recusal
grounds (and thus overcome the
decision in
Gubudela
's case) when sec 147 of Act 51 of 1977
was drafted. The change from "incapable" to "unable"
certainly did not achieve this. If anything "unable" is, in
my opinion, narrower in meaning than "incapable".
For these reasons, whatever the precise ambit of the words "unable to act as
assessor" in sec 147 (1) of the
Act may be, they do not, in my judgment,
comprehend the case
38
where there are grounds for the recusal of an
assessor. It follows from this that in the instant case the trial Judge erred
when he
sought to invoke sec 147(1) in order to declare, on a recusal ground,
that Dr Joubert could no longer act as assessor in the case.
Apart from this,
there is a further reason why the learned Judge could not rely upon the powers
granted by sec 147(1). As I have already
remarked, that subsection contemplates
an assessor becoming unable to act during the course of the trial. Assuming
(contrary to what
I have held above) that Dr Joubert's signature of a
declaration in support of the MSC was, legally speaking, a ground for finding
that he was unable to act, it is clear that he did not
become
so unable
to act during the course of the trial. His inability derived from an act on his
part which took place long before the trial
commenced. In the reported judgment
the trial judge reasoned as follows (see p 693 B -
39
E) :
"Counsel for the applicants stressed that the words 'becomes unable' connote a
situation which did not exist previously and that
the question has to be
answered in the
negative.
This
interpretation does not take into
account either the history of the phrase
in
which the word is found or its context.
'Becomes unable to act' was
previously
rendered as 'becomes incapable of continuing
to act'. I do not
think that any change in
meaning was intended by the changed
expression.
It is an attempt at
streamlining. It means and has always meant
'can act
no more'.
The meaning is even more apparent when regard is had to the operative phrase 'in
the opinion of the Judge'. A Judge who summons an
assessor is always of the
opinion that such assessor is able to act as assessor -physically, mentally and
legally. Should the basis
upon which the assessor is appointed be shown to have
been wrong, the
40
Judge changes his opinion to an opinion that the assessor is no longer able to
act. In the opinion of the Judge he has now become
unable to act.
I hold therefore that s 147 applies to all disqualifications, whether they arise
during the trial, or having been latent, come to
light only during the
trial."
In argument before us counsel
for the State adopted more or less the same line of reasoning. With respect, I
cannot agree with it.
The reasoning appears to ignore the word "becomes" and the
fact that it relates to the inability of the assessor to act. As Millin
J
remarked in
Ex parte H J Ivens & Company, Ltd; Ex parte National
Engineering, Ltd
1945 WLD 105
, at 109 - 10:
"The word 'becomes' imports a change of condition, namely, the entering into
a new state or condition from some former state or condition."
41
In the case of sec 147(1), the change of condition is from an
ability to act as assessor to an inability to act as assessor and the
subsection
contemplates such a change during the course of the trial. The words "in the
opinion of the presiding judge" simply' make
him the arbiter of whether such a
change has taken place during the course.of the trial. The interpretation
adopted by the Judge
a
quo
, and supported by the State, would be
acceptable only if the subsection read -
"If an assessor dies or in the opinion of the
presiding judge formed at any
time during a
trial is unable to act as
assessor "
There is no warrant for
interpreting the subsection as
though it read in this way. And, I might add,
I do not see
any significance in the fact that sec 216
bis
of Act 31
of
1917 and sec 110 of Act 56 of 1955 formerly used the
phraseology
"becomes incapable of continuing to act".
42
I, therefore, conclude that special entry 1.1 is well-founded. The trial
Judge was not entitled in the circumstances to exercise the
power accorded by
sec 147(1) in order to rule that Dr Joubert was unable to act as assessor. It
necessarily follows, too, that the
trial judge did not have the power to direct
that the trial proceed before himself and the remaining assessor. The only
suggested
source of such a power was sec 147(1) and it was under that subsection
that the trial Judge purported to act. This power, as I have
held, was not
available to the trial Judge. It follows from this that, contrary to the wishes
of the appellants, the trial proceeded
to conviction and sentence before an
improperly constituted Court. The convictions and sentences must consequently be
set aside (cf
S v Gqeba
,
supra
, at 717 H - 718 C).
This conclusion renders a consideration of the
43
other special entries strictly unneccessary. And I do not propose to
say anything about special entry 1.4. Special entries 1.2 and
1.3, however,
raise procedural issues of some importance and I wish briefly to say something
about them.
As a general rule all proceedings in a criminal trial should take place in
open court and in the presence of the accused. (See generally
the discussion in
S v Leepile and Others (1)
1986 (2) SA 333
(W).) In general, too, the
judge presiding in a criminal court should not make rulings or give directions
in regard to the trial
affecting the interes'ts. of the parties without
affording the parties an opportunity to be heard. The rule of fairness expressed
in the maxim
audi alteram partem
(for the sake of brevity I shall call it
"the
audi
principle") which is so often invoked in the realm of
administrative law is virtually axiomatic in the proceedings of a court of
law.
44
Accordingly, where a judge, acting in terms of sec 147 has
found that an assessor has become unable to act as such, then it is incumbent
upon him to hear the parties on the question as to the further conduct of the
proceedings, and more particularly as to whether he
should direct that the trial
proceed before the remaining members of the court or that the trial start de
novo
and a new assessor be appointed. The importance to an accused person
of being tried by a properly constituted court, especially in
cases where the
summoning of two assessors is obligatory, has already been noted and he should
not be lightly deprived of this advantage.
At the very least he should be heard
before he is so deprived. And in this connection it must. be borne in mind that,
where the court
is reduced to a judge and one assessor, in the event of a
difference of ópinion on a question of fact the judge's finding
is
decisive: see sec 145(4)(a).
45
It is true that in the instant case the trial had been
proceeding for a long time when the decision to invoke sec 147(1) was made
and
that there were certain manifest disadvantages inherent in a trial de
novo
. That, however, may well have been the accused's preference and, in
any event, it can make no difference in principle whether the
trial is seventeen
months old or one day old.
As regards the actual decision of a judge under sec 147(1) that an assessor
has become unable to act as. assessor, I think, too, that
in general this is a
matter upon which the parties are entitled to be heard before the decision is
taken. It is an issue which in
some circumstances, eg the onset of mental
incapacity, would have to be handled with tact and restraint by all concerned,
but I cannot
think that this consideration would rule out' altogether the
application of the
audi
principle to such decisions.
46
It was argued on behalf of the State that because the decision
as to whether an assessor had become unable to act is left to the "discretion"
of the judge, in the sense that it is his opinion which is decisive, the
audi
principlê is excluded. There is no substance in this argument.
The administrative law is replete with examples of the application
of the
principle where a decision depended solely on the opinion of a body or an
official as to some matter.
State counsel also pointed out that under the
earlier legislation (see sec 216
bis
of Act 31 of 1917 and
sec 110 of Act 56 of 1955) it was a reguirement, where an assessor became
incapabie of continuing to act, that the judge could continue
the trial with the
remaining assessor in cases wherê two assessors were obligatory, only with
the consent of the parties; and
that in later legislation (including sec 147(1)
) this requirement of consent was
47
eliminated or not to be found. From this it was argued that
the
audi
principle was excluded from sec 147(1). I cannot agree. Consent
and the right to be heard are two entirely different things and the
elimination
of the former does not,
prima facie
, affect the latter.
Counsel for the State also referred to certain other sections of the Act,
contended that the decisions therein referred to were intended
to be taken
without. reference to the parties and submitted that, therefore, the position
was the same under sec 147(1). The trial
Judge adopted a similar line of
reasoning (see the reported judgment at 693 F - J). With respect, the reasoning
is, in my opinion,
flawed. It involves a finding that under these other sections
the
audi
principle was indeed excluded (perhaps debatable in some
instances) and the inference that, therefore, the principle was intended
to be
excluded under sec 147(1) - a
non sequitur
, especially as none of the
48
other sections is in
pari materia
,
It may be asked: what ought the trial Judge in this case to have done? In my
view, he ought to have followed the procedure appropriate
to recusal. Dr
Joubert's participation in the MSC should have been raised in open court and the
parties been given an opportunity
to react thereto. Whether either or both of
them would have requested his recusal must now remain a matter for speculation.
And it
is not necessary to consider what power, if any, the trial Judge would
have had to order his recusal in the event of his not recusing
himself and the
parties not asking for his recusal. Nor is it necessary to discuss what the
procedure would have been had there been
an application by one or both of the
parties for his recusal and a refusal on Dr Joubert's part to recuse
himself.
Before I conclude this judgment there are two
49 matters to which I feel myself impelled to refer. It is obvious from the
reported judgment, and more particularly from the papers
filed in the
application for quashing and recusal, that after the events of 9/10 March 1987
there developed, unhappily, a bitter
and acrimonious confrontation in public
between the presiding Judge and Dr Joubert. . I think that this was largely due
to tensions
which had built up in the course of a long, wearying and
politically-charged trial. And I have no doubt that in the sober light of
retrospect the protagonists in that confrontation sincerely regret some of the
things that were said. I say no more.
The second matter relátes to the strictures passed by the learned
Judge on the conduct in the Court a
quo
of counsel and attorneys acting
for the accused (see reported. judgment at 705 B - 707 D). As appears from a
footnote to the judgment
inserted by the editors of the South African
50
Law Reports, enquiries into the propriety of the conduct of
defence counsel were held by the Bar Councils of the Bars of which they
were
members and it was found that the conduct of counsel had not been improper and
that they had complied with their duty as counsel.
The correctness of this
information was confirmed to us from the Bar. We were also told by appellants'
counsel that a similar enquiry
by the appropriate Law Society had also
exonerated the attorneys. In the circumstances it was, in my opinion, ill-judged
and unfortunate
that in argument presented to this Court counsel for the State
should have persisted in an attack upon the conduct and
bona fides
of the
appellant's legal representatives. Moreover, the attack did not appear to have
any substantial relevance to the issues which
this Court was called upon to
decide.
/ The appeal
51
The appeal is allowed and the convictions and sentences of all
the appellants are set aside.
M M CORBETT
BOTHA JA)
SMALBERGER JA)
KUMLEBEN JA) CONCUR
NICHOLAS AJA)