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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: CC13/2021
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES
In the matter between:
BAFANA STEPHEN ZONDO APPLICANT
And
THE STATE RESPONDENT
JUDGMENT ON RECUSAL
MOSOPA J
[1] The applicant is seeking an order that I recuse myself as the presiding judge
in the ensuing criminal trial and the trial to start de novo before another judge, who
will be allocated this matter by the Judge President on the date to be determined by the Judge President. [2] It is important to note that the applicant pleaded not guilty to all charges
proffered against him on the 15 November 2021, when this trial matter commenced.
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Since that period until this stage of the proceedings, the applicant has been
represented by Advocate Pistorius SC on the instruction of Rahl agane Attorneys and
the state is represented by Advocate Cronje together with Advocate Harmzen.
[3] The applicant’s trial has since evidenced a number of interlocutory
applications brought by the respondent, mainly opposed by the applicant which
necessitated me to make several rulings. Majority of the state’s witnesses testified in the intermediary room through the closed- circuit television ( “CCTV”) and others in
the in-camera proceedings in terms of the provisions of section 153 and 158 of Act
51 of 1977, except the complainant in count s 1 and 2, Ms Meisie Reaname, whose
evidence was also covered live by the media, with the order that her face not be
shown on the cameras. This matter has drawn a large interest from the members of the media and media coverage was permitted after several media houses made
applications for such.
[4] There was a stage in the proceedings when the applicant complained of the
interpretation relating to one of the complainants, Ms Anna Liphoko. This court then ordered that the evidence of the witness be reviewed by Mr Seretsane, Regional
Supervisor of the Interpreters, who was not involved in the interpretation of the matter, in its ent irety. I must pause to mention that the process took a very long time
to be concluded and the trial matter of the applicant, could not be proceeded with.
The applicant is arraigned in total on 10 counts and the state bear s the onus of
proving every count that is preferred against the applicant by leading evidence of
state witness es. In addition to that the state led evidence of an expert witness
Professor Labuschagne, and this was after I ruled that his evidence be permitted as
a result of the objection raised by the applicant in respect of the admissibility of such
evidence.
[5] The applicant in support of his recusal applicant filed a n otice of motion
accompanied by the founding affidavit deposed to by the applicant himself. The state
did not file any court papers in opposing the recusal application. [6] At the commencement of hearing of the application, Ms Cronje sought
clarification of prayer 1 of the notice of motion, which led to Mr Pistorius abandoning
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in part, prayer 1. Further clarity was sought in regard to paragraph 7 of the
applicant ’s founding affidavit which reads;
“It is my firm belief that Mosopa J has demonstrated bias against me with
reference to his rulings and conduct in this case which has been and/or
continues to undermine the fairness of the trial.”
[7] Mr Pistorius abandoned this paragraph in toto, when addressing the concern
raised by Ms Cronje. In my view, that was a proper approach adopted by Mr Pistorius taking int o consideration the manner in which prayer 1 is craf ted and further
the fact that this averment as contained in paragraph 7 of the founding affidavit is not
supported by averments contained in the applicant’s entire founding affidavit.
[8] On the founding affidavit and submissions made in argument in support of the
application, it is plain that this application has its genesis from the judgment made as
a sequel to the application for the discharge of the applicant, in terms of the
provisions of section 174 of Act 51 of 1977.
[9] The applicant’s grounds for my recusal can be succinctly categorised as
follows;
9.1. that this court made unqualified and unequivocal findings concerning
the credibility, reliability, truthfulness and corroboration of all the complainants’
evidence when delivering the section 174 judgment ,
9.2. certain critical aspects were either not addressed at all or not dealt with
as comprehensively in the judgment as the applicant had expected in the
circumstances,
9.3. following certain specific pronouncements, utterances and findings
made in the section 174 judgment, the applicant harbour a reasonable
apprehension of bias on the part of presiding judge,
9.4. that this court used strong language and made unequivocal conclusive
finding that the applicant raped Ms M […],
9.5. the court applied a wrong test in determining the section 174
application as what was expected to be determined was only , whether a prima
facie case has been made, and the court exceeded the scope and ambit of
what is required,
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9.6. pre-mature finding was made in relation to credibility and corroboration
whereas these aspects are expected to be determined at the end of the
criminal case when assessing the evidence in its totality and by making the finding at that stage has the effect of pre -judging the merits of the case and it
is pre-mature. The applicant is of the view that this court cannot bring an
impartial mind in adjudicating the matter further,
9.7. by pre- judging the applicant, I have placed an evidential burden on him
to dislodge the adverse credibility findings whereas he bears no evidential
duty, and
9.8. his constitutional right to a fair trial, the right to be presumed innocent,
and specifically, the right to challenge and adduce evidence before an impartial court has been materially infringed.
[10] In President of the Republic of South Africa and Others v South African
Rugby Football Union and Others (SARFU) 1999 (4) SA 147 at para 10, the
Constitutional court made the following pronouncements; that the trial judge whose recusal is sought, should be of a full appreciation of the admonition and that he
should not be unduly sensitive and ought not to regard an application for his or her
recusal as a personal affront. I highly appreciate the fact that, there is nothing
personal about this application and the application is brought by the applicant in
exercising his right to a fair trial. I also agree w ith Mr Pistorius that the application is
not brought as the result of the fact that the applicant is aggrieved by the outcome of
the section 174 application.
[11] Section 165 of the Constitution of the Republic of South Africa, makes the
following provision;
“[165] (1) The judicial authority of the Republic is vested in the courts. (2) The
courts are independent and subject only to the Constitution and the law, which
they must apply impartially and without fear, favour or prejudice… ”
[12] The Code of Judicial Conduct (Adopted in terms of section 12 of the Judicial
Service Commission Act, 1994) which Mr Pistorius made reference to, make the
following provisions ,
“[Article 9] Fair Trial
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A judge must -
(a) resolve dispute by making finding of the fact and applying the
appropriate law in a fair hearing, which includes the duty to-
i.observe the letter and spirit of the audi alteram partem rule,
ii. remain manifestly impartial, and
iii.give adequate reasons for any decision,
(b) in conducting judicial proceedings -
i.maintain order,
ii. act in accordance with commonly accepted decorum, and
iii.remain patient and courteous to legal practitioners, parties and the public, and
require them to act likewise,
(c) manage legal proceedings in such a way as to-
i.expedite their c onclusion as cost effective ly as possible , and
ii. not shift the responsibility to hea r and decide a matter to another judge, and
iii.not exert undue influence in order to promote a settlement or obtain a
concession from any party .
[Article 13] Recusal
1. A judge must recuse him or herself from a case if there is a-
(a) real or reasonabl y perceived conflict of interest , or
(b) reasonable suspicion of bias based upon objective facts , and shall not
recuse him or herself on insubstantial grounds.”
[13] The right to a fair trial has been entrenched in section 35(3) of the Constitution
and provides that ;
“[35](3) Every accused person has a right to a fair trial. ”
[14] In SARFU at paragraph 30, the following was stated;
“[30] A judge who sits in a case in which she or he is disqualified from sitting
because, seen objectively, there exists a reasonable apprehension that such
judge might be biased, acts in a manner that is inconsistent with section 34 of
the Constitution, and in breach of the requirements of section 165(2) and the prescribed oath of office.”
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[15] To pass the test in recusal application the applicant need not prove actual
bias but apprehension of bias or a suspicion of bias. Section 39 of the Constitution
enjoins court when interpreting the Bill of Rights to promote the values that underlie an open and democratic society based on human dignity, equality and freedom ,
must consider international law and may consider foreign law.
[16] In Livesey v The New South Wales Bar Association at page 294 the High
Court of Australia when dealing with apprehension of bias in recusal applications, stated,
“It was common ground between the parties to the present appeal that the
principle to be applied in a case such as the present is that laid down in the majority judgment in Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR
248, at pp 258-263 . That principle is that a judge should not sit to hear a case
if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it …Although
statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended
nuances of meaning. ”
[17] In SARFU when dealing with the application of the test at paragraph 48,
stated,
“[48] It follows from the foregoing that the correct approach to this application
for the recusal of members of this Court is objective and the onus of
establishing it rests upon the applicant. The question is whether a reasonable,
objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the
evidence and the submissions of counsel. The reasonableness of the
apprehension must be assessed in the light of the oath of office taken by the
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
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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. ”
[18] In Bernett v ABSA Bank Ltd [2010] ZACC 28 at paragraph 28, the
Constitutional court when dealing with apprehension of bias stated that,
“[28] It is, by now, axiomatic that a judicial officer who sits on a case in which
he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the
Constitution. This case concerns the apprehension of bias. The apprehension
of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these
situations, the judicial officer must ordinarily recuse himself or herself. The
apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial. And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. ”
[19] It is also important for the litigant to prove when alleging appreciation of bias,
that there is some connection between the view , opinions or experiences of a judicial
officer and the subject matter they are seized with . (South African Human Rights
Commission obo South African Jewish Board of Deputies v Masuku 2022 (4)
SA 1 (CC) ).
[20] The court is enjoined in terms of section 174 of Act 51 of 1977, to, at the end
of the prosecutions’ case determine whether there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be
convicted on the charge and if satisfied may return a verdict of not guilty. It is also
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important to note that such determination, ought to be made before the evidence of
the accused person is placed before court, as accused legal representative’s
statement of what accused will say when afforded an opportunity to testify, does not amount to evidence for the determination of section 174 application. The section also
uses the words “of which he may be convicted” which in my considered view entails
the court to determine the prospects of the accused be convicted at the end of the
case, based on the evidence presented by the state. The fact that the court after assessing the evidence presented and pronounce that there is exist ence of the
possibility that the accused may be convicted, does not mean that the accused is
pre-judged and that the court has pre- judged the merits of the case, but made a
determination as required by section 174. [21] The applicant despite being fully aware that credibility at section 174
application plays a very limited role, engaged me to determine credibility, reliability
and corroboration of the state witnes ses. The entire judgment on section 174 does
not indicate the finding on state witnesses corroborating one another and it cannot
be correct that I made a finding on corroboration of state witnesses. There are
instances in which even though complainants are single witness, witness were called
by the state to confirm what the complainants informed them, but I did not deal with
the evidence of the first reports in the entire judgment , except for what Meisie
informed Khabo Zondo, her brother and Ms M […] and her child’s testimony, who is
also a complainant in this matter .
[22] It is contended by the applicant that I made pronouncement of g uilty of the
accused in the section 174 judgment, and as such a I pre- judged the applicant even
before I heard his version. This has the effect of placing a burden on the accused to
prove his innocence. The pre- judgment affects the applicant’s fair trial right and
indicates objectively the apprehension of bias ness in which disqualifies me from
further pre siding on the trial of the applicant.
[23] I am alive to the fact that the accused is constitutionality entitled to a fair trial
as provided by section 35 of the Constitution and that the integrity of the criminal
trial, must be beyond any criticism or reproach. Section 34 of the Constitution affords
every person the right to have any dispute that can be resolved by the application of
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the law, to be decided in a fair public hearing before a court or where appropriate,
another independent and impartial tribunal or forum.
[24] It must also be remembered that the applicant did not bring an application for
a discharge with respect to all the charges that he has been arraigned against him,
for reasons that were not placed on record. The judgment on section 174 pertains
only to counts that the applicant applied for a discharge on.
[25] The applicant bears no onus to prove his innocence and the accused
incidence of burden of proof does not arise in a criminal trial. W hen determining the
section 174 application, the applicant depending on the outcome, can exercise his right by closing his case without testifying or take a stand and testify. At the end of
the case when determining the matter , the test is not the same as in section 174
application, but beyond reasonable doubt. This means that d espite the findings
made at 174 stage, the court may at the end of the case c ome to a different
conclusion after assessing all the evidence in totality.
[26] Despite contending that the evidence of the state witnesses is of a poor
quality that it needs to be ignored, the applicant contends that he is unaware of any
rule of evidence that deems the testimony of witness called by the state to be reliable
and trustworthy upon the closure of the state’s case. The applicant further contended
that,
“It has been held that generally speaking, questions of the credibility of state
witnesses do not play a large role at this stage of the trial. In this application ,
however, the credibility of the witnesses called by the stat e significantly have
a bearing on the outcome of this application, because their credibility is reliant
on the state’s failure to present corroboration and/or convincing circumstantial
evidence, inferential reasoning to arrive at conclusion the state seeks this
court to draw . In this respect , the accused argues that the state failed in its
presentation of its case.”
[27] Ironically applicant further referred the court to the matter of S v Agliotti in
which reliability of the state witnesses was relied on when determining the section
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174 application. The contention by the applicant that such is a consideration when
granting an application for a discharge, in my view is meritless.
[28] Applicant contends that I used strong language and made unequivocal
conclusive findings that he raped Ms M […] despite not even answering to this
allegation. I take note of the fact that the applica nt appreciates and considers
charges levelled against him at this stage as allegations against him. I t is unfortunate
that the applicant ignores to note in my judgment when I said the following, “the
accused can remember the days on which it is alleged that he raped a complainant.”
This in my considered view does not amount to a conclusive finding which is deemed
as unequivocal by the applicant. The words “at this stage of the proceedings ” was
used when making a finding, which denotes that, what is said is not final and conclusive but only applicable at that stage of the proceedings.
[29] The fact that I used a wrong test, which I do not agree with, in determining the
discharge of the applicant, cannot be a reasonable objective ground of apprehension
of bias. The fact that I overreached in my findings cannot also be correct as I made
the following pronouncement, “A prima facie case upon which a reasonable man
acting carefully has been established by the state.”
[30] The witness es were cross -examined on the statements of witnesses who
were not called as witnesses by the state and there are exhibits which were also
provisionally admitted to evidence at the instance of the applicant when cross-
examining the witness , which at that stage could not be considered because they
have not been confirmed by their authors. I was hesitant not to make any credibility
finding pertaining to that as that would not have been proper for me to do, as that needs to be determined at the end of the case.
[31] The applicant avers in his founding affidavit at paragraph 38.3 that,
“The principle of credibility and corroboration only becomes relevant at the
end of the trial when assessing all the evidence in its totality . By making a
finding at this premature stage, Mosopa J has effectively pre -judged the
merits of the case before I even had an opportunity to present my defence.
The conclusive finding that I committed the offences (rapes) and that my
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conduct, after the incidents according to the complainants, which he f ound to
be credible, reliable and corroborated, without a shadow of doubt,
conclusively proves that h e has f ound, that I committed the offences. The
obvious pre- judgment expressly found by him, to my prejudice speaks for
itself. This leaves me with a reasonable apprehension that Mosopa J would
not bring an impartial mind in adjudicating the matter further.”
[32] This contention is made despite the fact that I was called upon to determine
the credibility and reliability of the state witnesses by the applicant . I never made a
finding that the evidence of the witnesses is found to be credible, reliable and
corroborated without a shadow of doubt. This contention is with no merit as such
finding cannot be found in my judgment. The test in section 174 applications is not
“beyond reasonable doubt ” which cannot even be the “shadow of doubt,” but
evidence upon which a reasonable man acting carefully may convict and/or a prima
facie case is established.
[33] Applicant further contend that there is authority that court must consider all
the evidence in its totality at the end of the case, before drawing conclusions on
reliability, credibility and corroboration. Given this knowledge, even through not
mentioning the relevant authority he is relying on, I fail to understand why he called
upon me to consider such aspects when arguing for his discharge. If I could not have
considered what I was supposed to determine, I would have also been criticised of
not analysing what I was called upon to determine.
[34] This aspect is borne out of the averments made by the applicant when he
averred that, at paragraph 31 of the founding affidavit;
“Mosopa J, with respect dealt to some extent with the criticism levelled
against the quality of the complainant s’ evidence, but regrettably, not all of it. I
accept, however , that at this stage of the proceedings, it was not expected of
him, to address such submission made on my behalf. Nonetheless, I maintain
that certain critical aspects were either not addressed at all or not dealt with as comprehensively in the judgment as I had expected in the circumstances.”
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[35] Applicant is also of the view that his fair trial right is threatened in that I stand
to reject his evidence as not credible, tru e or reliable and be dismissed together with
the evidence of the witness es that he intends to call , as false , because of the
irreversible finding that I have made as I am tied to such. I do not know whether the
applicant will testify or not whether he will call witnesses or not to testify in his
defence as a result of refusal of his discharge, safe from what I was informed from
the bar that the accused will testify in his defence. I do not know the nature of the
evidence the applicant will present, and it cannot be correct that based on my
findings I will reject such evidence as false. The findings made at 174 application
cannot be conclusive and be sai d that it is the pronouncement that the accused is
guilty, hence, the application is interlocutory. This is borne of the fact that a litigant
cannot appeal against the section 174 outcome. The court has to still decided later
on in the proceedings as to whether the state has discharged the burden necessary
to secure the guilt of the applicant. As findings made at interlocutory stage of the proceedings needs to be revisited at the end of the case, and the court is competent to interfere with such findings after considering evidence in its totality.
[36] It is further contended that I used a wrong test when I made the following
finding;
“I am satisfied that Meisie ’s evidence passes the test, despite the incident
having occurred more than 40 years ago. The majority of the complainants
testified that, after being raped by the accused, they saw him laughing and making remarks such as, “thank you for entrusting me with your body.” Even
though this was disputed by the defence, it demonstrates the conduct of the
accused in committing the offences as all the complainants testified that they
did not give accused permission to rape them.”
[37] On a proper analysis of the above, it showed the states’ presentation of lack
of consent by the complainants to alleged rapes committed by the applicant and that
cannot amount to a conclusive finding. This passage in the judgment, followed after I
determined the principle of cautionary rules to be applied in determining the evidence of a single witness , after I was called upon by the applicant to apply
cautionary rules for the fact that the complainants were single witness es.
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[38] Applicant in support of the recusal application, averred that Meisie and the
rest of the complainants had a motive to falsely implicate him in the commission of
the alleged offences. Further that Meisie had ulterior motive to implicate him. Issue
of the motive of the complainants to falsely implicate him, in the commission of the
alleged offences is not present in the section 174 judgment. I do not understand why
the applicant is making such an averment , as such cannot stand as a ground of
objective apprehension of bias on my side.
[39] The applicant is of the view that given the conclusions, utterances and
pronouncements made, objectively an informed person would on the correct facts,
reasonably apprehend that he will not bring an impar tial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and
submissions of counsel. This means that the applicant is of a firm belief that I am not
impartial, and this type of conduct disqualifies me for further presiding in his trial
matter. The findings I made, are based on the evidence presented at this stage of
the proceedings and what I was called upon to determine by the parties and I acted
as required by the parties.
[40] The judicial oath of office that I took enjoins me to be im partial in my
execution of my judiciary duties and most importantly to preserve the integrity of the
trial, to the extent that it is beyond criticism or reproach. Most importantly to ensure
that the public’s confidence in the judicial system is not eroded and to further ensure
that the accused’s right to a fair trial is protected as enshrined by the Constitution.
Impartiality does not translate to neutrality , as in the determination of the cases I
must rule in favour of a particular party, and the same approach is also applicable in
criminal cases. This would have been the same if I have discharged the applicant in
respect of the counts, he asked for his discharge. I do not have an interest in the
outcome of this matter , but to consider evidence as presented and restoring the
confidence of the litigants in the judicial system.
[41] There is nothing in casu, which points to the direction that I neglected to
uphold the oath of office that I took, and I was biased against the accused when
determining the section 174 application and this application need not succeed. I
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cannot recuse myself based on unsubstantial grounds, because if it was the case, I
would without hesitation recuse myself from the trial of the applicant.
ORDER
[42] In the result the following order is made;
1. The application for my recusal as the presiding judge i n the trial of the
applicant is hereby refus ed.
M.J. MOSOPA
JUDGE OF THE HIGH COURT ,
PRETORIA
APPEARANCES
FOR THE STATE: ADVOCATE J CRONJE AND ADV C HARMZEN
INSTRUCTED BY: THE DIRECTOR OF PUBLIC PROSECUTION
FOR THE ACCUSED : ADVOCATE PISTORIUS SC
INSTRUCTED BY: RAHLAGANE ATTORNEYS
Date of hearing: 09 April 2025
Date of Judgment: 23 April 2025