REPUB LIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE: ~/NO
OF INTEREST TO THE JUDGES: "-8/NO
REVISED: Y..E-6/NO
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DATE .. 4.}J.~ SIGNATURE .. ~
In the matter between:
MASEKGOTHE REGINAH KGATUKE
FORTUNATE NONHLANHLA SIBIYA
And
ADDITIONAL MAGISTRATE
C VAN NIEKERK (LANGLEY)
DIRECTOR OF PUBLIC PROSECUTIONS
(LIMPOPO PROVINCE)
Heard: 01 November 2024
CASE NO: REV 120/23
COURT A QUO CASE NO: B21/2018
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
2
Delevered: 04 December 2024 by circulation to the legal representatives.
Coram: Kganyago Jet Pillay AJ.
JUDGEMENT
Pillay AJ
Introduction:
[1] The Applicants have both brought two separate applications for Review under
Review number 120/23 and Review Number 119/23. Both applications stem from
one criminal proceeding where the Applicants are Co Accused in the Mokopane
Magistrates Court, appearing on a charge of contravening Section 4(1 )(a)(iii) read
with Section 1,2,4(2),24,25,26(1 )(a) of the Prevention and Combatting of Corrupt
Activities Act1, Corruption: Accepting a Benefit.
[2] The Review applications were sought in terms of Rule 53 of the Uniform Rules of
Court read with Section 21 and Section 22 of the Superior Courts Act2. The Second
Applicant Ms Sibiya also sought condonation for the late filing of her application,
which was granted by this Court.
[3] Both Applicants seek the Review and setting aside of the Court order dated the 8
May 2023, by the Presiding Magistrate C Van Niekerk (Langley) the First
Respondent, in ordering the State to proceed and lead evidence of video and audio
1 A ct 12 of 2004
2 A ct 10 of 2013
3
footage, which was previously ordered as being inadmissible by the Presiding
Magistrate on the 8 March 2021.
[4] The First Applicant sought further;
[4.1] An order that this Court direct the First Respondent to refrain from reviewing
her own ruling.
[4.2] An order directing the First Respondent to deliver Judgment and finalise the
matter before her, with the evidence and arguments which were already
before the Court a quo.
[4.3] Further and alternative relief
[4.4] Costs of the application against any Respondent who opposed the
application.
[5] The Second Applicant also sought the following;
[5.1] That this Court order the First Respondent to recuse herself from the case on
the ground of bias.
[5.2] That this Court order that those Respondents opposing this application are
held liable to pay the costs of this application, jointly and severally, the one
paying the other to be absolved.
[5.3] Granting the Applicant further and or alternative relief.
[6] When Council for the Applicants appeared in this Court, both applications were
unopposed. It was agreed that both applications be argued together in light of the
4
fact that the relief sought flowed from the same criminal trial, and due to the
interwoven facts and prayers, sought by the Applicants against the First
Respondent. The parties further agree that the appropriate relief will be to review,
set aside the order of the first respondent and refer the matter to the court a quo to
start de nova before another Magistrate. This Court ordered that the two reviews
applications be consolidated under case number Rev 120/2023.
Brief Background:
[7] The two Applicants, were employed as Traffic Officers, when the alleged incident
occurred resulting in them being charged with the offence of contravening Section 4
of the Corrupt Activities Act. The allegations being that they accepted a benefit,
whilst on duty, from a motorist who had committed a traffic offence. They pleaded
Not Guilty before the First Respondent on the 20 October 2020. The State led
evidence of the allegations and sought, during the trial, to lead audio and video
footage to augment same, in proving the guilt of the Applicants. This application was
opposed by the Applicants for various reasons and after hearing argument on the 8
March 2021, the First Respondent ruled that this evidence was inadmissible.
[8] The trial continued with evidence from the state witnesses, and the State
subsequently closed its case. The two Applicants testified in their defence and
closed their case. Both sides argued for and against the conviction of the two
Applicants and the case was postponed to the 8 May 2023 for Judgment on the
merits. On appearing in Court that morning, both Applicants and Court Officials were
surprised that instead of Judgment being delivered, they were all informed by the
First Respondent that the audio and video footage, was admissible and the State
5
was instructed to proceed and lead that evidence. Both Applicants objected to this
ruling, but the First Respondent was clear that the previous ruling could be
reconsidered. The case was postponed so that the necessary witnesses could be
arranged to testify.
[9] On the return date the Applicants informed the Court a quo that they intended
approaching the High Court to have this decision reviewed. They also sought the
recusal of the First Respondent, which was refused. This briefly was the background
in respect of the proceedings that culminated in these two review applications before
this Court.
The Grounds of Review:
[1 O] Section 22 of the Superior Courts Act3 highlights the following as being grounds for
review of the proceedings of the Magistrates' Court;
[1] The grounds upon which the proceedings of any Magistrates' Court may be
brought under review before a court of a Division ar~
(a) Absence of jurisdiction on the part of the Court;
(b) Interest in the cause, bias, malice or corruption on the part of the
Presiding Judicial Officer;
(c) Gross irregularity in the proceedings; and
(d) The admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
[2] This section does not affect the provisions of any other law relating to the
review of proceedings in Magistrates' Courts.
3 See footnote 2 above
6
[11] The Applicants indicated that the First Respondent's decision to review her initial
order of refusing the admission of the video and audio footage, placed the
proceedings within the ambit of Section 22.
[12] The Applicants highlighted that the First Respondent motivated that such decision
was permissible prior to Judgment, relying on the case of S v Mkhwanazi4. This
reasoning by the First Respondent was flawed, as the case on which the First
Respondent relied was a High Court case, wherein the High Court, having inherent
jurisdiction, reconsidered its interlocutory ruling. The two Applicants argued that the
Magistrate's Court, being a creature of Statute, was not capable of making such a
decision.
[13] The Applicants noted that if the First Respondent was of the view, that there was a
misdirection, in ruling the audio and video footage as inadmissible, the First
Respondent should have stopped the proceedings and sent the case on special
review.
[14] The Second Applicant indicated that the First Respondent was bias against the
Applicants whe n the recusal application which they sought was refused. The
purpose for seeking the First Respondent's recusal was based on the apparent bias,
towards the Applicants, in the decision to have the State's case reopened for the
evidence which was ruled inadmissible, to be presented before Court.
4 1996(1)SA736(A)
7
[15] It was on account of the abovementioned reasons that the Applicants sought relief
by this application. The First Applicant sought that this Court order that the First
Respondent proceed and pronounce Judgment without the video and audio footage.
[16] The Second Applicant indicated that there was a perceived bias on the part of the
First Respondent, and should the matter be referred, to the First Respondent, the
Applicant's right to a fair trial, would be infringed. However, the applicants have
found common grounds and are in agreements that the proper remedy was to remit
back to the court a quo for a trial de novo.
The Legal Principles:
[17] The High Court has inherent jurisdiction to review proceedings in Lower Courts
before the conclusion thereof in that Court. This is in instances where an injustice
might result or where justice may appear unattainable in the proceedings. The High
Court is always reluctant to interfere when applications are brought in the middle of
the proceedings in the Lower Courts. This is referred to as "in medias res" where this
Court is called upon to intervene "in the middle" of the proceedings which is
disruptive to the proceedings and results in piecemeal adjudication of the trial. This
Court took cognisance of the allegations by the Applicants that they would suffer
irreparable prejudice, if the proceedings were to continue in the Court a quo and that
Section 22 of the Superior Courts Act5 was applicable. The Applicants both argued
5 See footnote 2 above
8
for this Court to interfere as the irregularity complained about, if persisted, would
cause real prejudice to the Applicants.
[18] In Motata vs Nair NO and Another6 the Court noted the following in respect of "in
medias res" proceedings;
"[9] It is trite that as a general rule a High Court will not by way of
entertaining an application for review interfere with incomplete proceedings in
a lower court. As stated in Wahlhaus & others v Additional Magistrate,_
Johannesburg & another_ 1959 (3) SA 113 (ADJ at 119G , the High Court will
not ordinarily interfere whether by way of appeal or review before a conviction
has taken place in the lower court even if the point decided against the
accused by a magistrate is fundamental to the accused's guilt. At 119H-120A
Ogilvie Thompson JA (as he then was) stated as follows:
'It is true that, by virtue of its inherent power to restrain illegalities in inferior
courts, the Supreme Court may , in a proper case, grant relief - by way of
review, interdict, or mandamus - against the decision of a magistrate's court
given before conviction. (See Ellis v Visser and Another 1956 (2) SA 117 (W)
and R v Marais 1959 (1) SA 98 (T), where most of the decisions are collated.)
This, however, is a power which is to be sparingly exercised. It is
impracticable to attempt any precise definition of the ambit of this power; for
each case must depend upon its own circumstances. The learned authors of
Gardiner and Lansdown (61h Ed., vol. Ip. 750) state:
'While a Superior Court having jurisdiction in review or appeal will be
slower to exercise any power, whether by mandamus or otherwise,
upon the unterminated course of proceedings in a court below, it
certainly has the power to do so, and will do so in rare cases where
6 [2008] ZAGPHC 215; 2009 (1) SACR 263 (TPD) at paragraph 9
9
grave injustice might otherwise result or where justice might not by
other means be attained . . . In general, however, it will hesitate to
intervene, especially having regard to the effect of such a procedure
upon the continuity of proceedings in the court below, and to the fact
that redress by means of review or appeal will ordinarily be available
[19] In Adonis v Additional Magistrate, Bellville and Others7 the Court noted:
"[21] It is generally accepted that this Court will not readily intervene in lower
court proceedings which have not yet terminated, unless grave injustice may
otherwise result or where justice may not be obtained by other means. See
Wahlhaus and Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA 113 (A) at 119H - 120C; Ismail and Others v Additional
Magistrate, Wynberg, and Another 1963 (1) SA 1 (A) at 5G - 6A; Building
Improvements Finance Co (Pty) Ltd v Additional Magistrate, Johannesburg,
and Another 1978 (4) SA 790 (T) at 793F -G; Levack and Others v Regional
Magistrate, Wynberg, and Another 1999 (4) SA 747 (C) (1999 (2) SACR 151;
[199913 All SA 374) at 754A -F (SA).
[22] Intervention on review will be justified in the case of a gross irregularity
which has caused, or is likely to cause, prejudice to the applicant. See the
Building Improvements case (supra) at 792H - 793C. In Rynders v Bankorp
Ltd tla Trust Bank and Others 1995 (2) SA 494 (W) it was held that a
magistrate's court did not have the power to grant an ex parte application for
the provisional liquidation of a close corporation. According to MacArthur J (at
497B -0) the grant of such an order constituted an irregularity which caused
the applicant 'substantial wrong' in that he was confronted with all the
consequences of a provisional liquidation order. This entitled the applicant to
7 2007 (2) SA 147 (C) at paragraphs [21] and [22]
10
take the magistrate's decision on review, despite the fact that he might have
failed to exhaust his remedies in the magistrate's court."
[20) The Applicants also raised the issue of the refusal by the First Respondent, to
recuse herself from the proceedings, which according to the Applicants were an
indication of bias, on the part of the First Respondent which was prejudicial to the
two Applicants.
[21) This Court noted the approach by the Constitutional Court in President of the
Republic of South Africa & others v South African Rugby Football Union & others8
where the relevant principles to be considered when recusal applications are sought
was highlighted as follows:
... 'The question is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the judge has or will not
bring an impartial mind to bear on the adjudication of the case, that is a mind
open to persuasion by 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 so 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. '
[22) In Bennett & another v S: In re S v Porritt & another9 Spilg J stated:
8 1999 (4) SA 147 (CC) at [28)
9 2021 (1) SACR 195 (GJ) at [113)
11
'The recusal of a presiding officer, whether it be a magistrate or a judge,
should not become standard equipment in a litigant's arsenal, but should be
exercised for its true intended objective, which is to secure a fair trial in the
interests of justice in order to maintain both the integrity of the courts and the
position they ought to hold in the minds of the people whom they serve.'
[23] In S v Ramabele & others10 Mhlantla J, writing for a unanimous Court, gave the
following description of the concept 'impartiality' for purposes of recusal,
"Turning to the judicial-bias challenge, impartiality is essential to the proper
discharge of the duties of the judicial office and is central to the administration
of justice. It applies not only to the decision itself but also to the process by
which the decision is made. The word 'impartial' connotes absence of bias,
actual or perceived. Impartiality must exist as a matter of fact and as a matter
of reasonable perception. If a judicial officer is perceived to be partial, that
perception is likely to aggrieve some persons and leave a sense of injustice to
the affected parties and society at large, thereby diminishing confidence in the
judicial system."
[24] In S v Djuma & others11 an unreported, GP case, Kollapen J identified three 'core
principles'
'a) There was a presumption in our law against partiality of a judicial
officer and this was largely based on the recognition that legal training and
experience prepare Judges to determine where the truth may lie in the face of
contradictory evidence;
b) The presumption of impartiality is not easily dislodged and cogent and
convincing evidence was necessary in order to do so;
c) That fairness required a judge to be actively involved in the management
of the trial, to control proceedings and to ensure the proper utilisation of
resources and thus a supine approach was not justifiable.'
10 2020 (2) SACR 604 (CC) at [51)
11 C ase no A423/2015, 12 April 2017 at [14)
12
The Applicability of the Law:
[25] In considering whether the two Applicants were justified in approaching this Court,
regard was had to the arguments raised in the Court a quo concerning the recusal
and review applications. From the reading of the record the trial was postponed for
Judgment purposes after both the State and Defence had closed their cases. Both
sides had argued, and it was for determination of the guilt or innocence of the two
Accused, with all the evidence placed before the Court. This distinguishes this case
from other cases where evidence was still to be led during the trial. At this point the
Court a quo was equipped to make a finding on the evidence led. If there was any
need for further evidence, this should have been canvassed, before adjourning for
Judgment purposes.
[26] On the return date being the 8 May 2023, it was clear that the First Respondent
changed her mind, regarding the previous ruling of inadmissibility of certain
evidence. This sudden and new decision was taken to include this evidence, without
any input from either the State or the Defence, concerning the subject matter, to the
detriment of both sides. The Court a quo in its ruling, acknowledged that there was a
misdirection, in respect of the earlier ruling, of the inadmissibility of the evidence of
the video and audio. The Court then ordered it admissible and instructed that
evidence in this regard was to be led by the State. The First Respondent displayed a
lack of insight of the role and purpose of the litigants before her and the impact of
this ruling on the right to "fair trial procedure", provided for in our Constitution.
[27] Had this decision been made prior to the State and Defence closing their cases, the
likelihood of the issue of prejudice, relied upon by the two Applicants would have
been addressed and ventilated. The fact that the First Respondent sought this
evidence to be led at the stage when Judgment was to be delivered, is a clear
indication that the First Respondent now viewed this evidence relevant, to the
benefit of the State, in its attempt to secure a conviction against the Applicants,
based on this evidence.
13
[28] Once the Court a quo realized that this ruling of the inadmissible evidence was
incorrect and that this evidence was relevant to a just decision, the Court a quo, was
obliged to refer the case to the High Court for direction on how to proceed,
especially as the case was postponed for the delivery of Judgment by the First
Respondent.
[29] The situation was exacerbated by the mero moto order for the reopening of the
State's case, without any input from either side, followed by the decision to refuse
the recusal application. Surely at this stage in the proceedings, the First Respondent
should have realized that the perception created by this decision whether real or
imagined, appeared to be bias, in favour of the State. The First Respondent justified
this decision by motivating that her original decision was interlocutory and same
could be reconsidered at any stage prior to Judgment. The case cited as highlighted
by the two Applicants, is of no assistance to the First Respondent. It is important to
note that the context in which this review by the First Respondent of her original
ruling occurred, was as per her address in Court, at time Judgment was being
considered. The First Respondent indicated that the interest of justice warranted the
evidence being admitted, without weighing up the prejudice to be suffered by the two
Applicants based on this decision, at this very late stage in the proceedings. The
conduct of the First Respondent falls squarely within the ambit of subsection (2) and
(3), of the provisions of Section 22 of the Superior Court Act.
[30] The recusal application was a second opportunity for the Court a quo to seriously
grapple with the question of whether a reasonable, objective and informed person,
would in these circumstances and seized with the current facts, reasonably
apprehend that the Court, will not bring an impartial mind to bear on the adjudication
of the case, considering the allegation of bias. The Applicants claimed, that based
on the irregularity of the proceedings, the Court a quo was entering into the arena,
aiding the State, in obtaining a conviction, against the two Applicants.
[31] From the record of proceedings, there was sufficient motivation for the First
Respondent, to have acceded to the recusal application. These circumstances
14
differed materially, from the scenario where there was further evidence to be led and
the perception of bias based on the decision by the First Respondent, could not be
ignored. It is for the above reasons that this Court is of the view that the irregularities
complained of by the two Applicants were present and required the intervention by .
this Court.
[32] The Applicants sought that the matter be referred to the Court a quo with the
instruction that the decision to admit the video and audio evidence, was reviewed
and set aside and that the Judgment was to be delivered without same . The concern
raised by this Court was that due to the perceived bias on the part of the First
Respondent, any decision delivered was susceptible to criticism from both the State
and Defence which was not in the interest of justice and would not bring this case to
finality. That let to the parties finding common ground on how this matter should be
disposed.
Ruling:
[33] It is for the above reasons that the application for review sought by the Applicants in
terms of Section 22 of the Superior Court Act are granted to the extent that the
decision by the First Respondent to reopen the State's case and have the
inadmissible evidence led is reviewed and set aside.
Order:
[34] In the result the following order is made:-
[34.1] The two applications under Review Case numbers 119/23 and Review
Case number 120/23 are consolidated for purpose of this Judgment under
Review Case number R120/2023.
[34.2] The applications for review of the decision by the Presiding Magistrate C Van
Niekerk (Langley) the First Respondent, dated the 8 May 2023, at the
Mokopane Magistrates Court is reviewed and set aside.
[34.3] The matter is referred back to the Magistrate Court for purpose of trial to start
de nova before another Presiding Judicial Officer, should the State elect to
15
prosecute the two Applicants in respect of the aforementioned offence in the
future.
APPEARANCES
FOR THE FIRST APPLICANT
INSTRUCTED BY
KL PILLAY
ACTING JUDGE OF THE HIGH CO .URT,
LIMPOPO DIVISION, POLOKWANE
I AGREE:
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
: Nandu Cross Malumbete
: Malumbete & Makhubele Attorneys INC
FOR THE SECOND APPLICANT : Adv Mamabolo
INSTRUCTED BY : Mokwape Attorneys
FOR THE FIRST and SECOND RESPONDENT : NO APPEARENCE
DATE OF HEARING : 1 November 2024
DATE OF JUDGEMENT : 4 December 2024
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