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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: CC13/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 25/06/ 2025
SIGNATURE:
In the matter between:
BAFANA STEPHEN ZONDO APPLICANT
V
THE STATE RESPONDENT
JUDGMENT
MOSOP A J
[1] This is an application for leave to appeal against my refusal to recuse myself
in the trial matter of the applicant and for the matter to start de nov o before another
judge.
[2] The application for leave to appeal was heard on the 13 June 2025 and af ter
hearing parties, judgment was reserved.
[3] The applicant repeated the majority of the grounds in this application which
were raised in the recusal application, which mainly revolves around the aspect that I
found the state's case to be credible, reli able and trustworthy. I have already dealt at
length in my recusal judgment why I made such a finding based on what I was
requested to determine by the applicant. That was the position even though the
applicant knew that credibility of the witnesses plays a limited role at that stage of the
proceedings. The applicant did not apply for the discharge in terms of the provisions
of section 174 in respect of all the charges levelled against him.
[4] Further grounds were added in contention that I found the evide nce of the
state witnesses to be truthful and that the state witnesses corroborated one another.
It was contended on behalf of the applicant that the gist of the application is that the
court pronounced itself on the guilt of the applicant and prejudged on the issue of
credibility as that can only be done at the end of the trial matter.
[5] In S v Smith 2012(1) SACR 567 (SCA) , the Supreme Court of Appeal, when
dealing with the applicable test in the leave to appeal applications, stated that,
"[7] What the t est of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In
order to succeed, therefore, the appellan t must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote, but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal."
[6] In Mount Chevaux Trust (IT 2012/28) v T ina Goosen and Others , when
dealing with the threshold in applications for leave to appeal in terms of section
17(1)(a)(i) of the Superior Court Act 10 of 2013 ("SC Act"), Bertelsmann J, stated
that,
"[6] It is clear that the threshold for granting leave to appeal against judgment
of a High Court has been raised in the new Act. The former test whether leave
to appeal should be granted was a reasonable prospect that another court
might come to a different conclusion ... The use of the word "would" in the
new statute indicates a measure of certainty that another court will differ from
the court whose judgment is sought to be appealed against..."
[7] The applicant in his notice of application for leave to appeal did not indicate
under which provisions is he br inging the current application, but it can be safely
assumed that he is bringing such under the provisions of section 17(1) of the SC Act
as he cannot rely on the provisions of section 316 of Act 51 of 1977, as that is only
available to him in the event of conviction.
[8] A further conundrum faced by this court, if the above assumption is correct, is
under which subsection of the above section is this application brought. Following
submissions made by the applicant that "the Supreme Court of Appeal will com e to a
different conclusion and that there is a reasonable prospect of success" it can be
said that the applicant relies on the provisions of section 17(1)(a)(i) of the SC Act in
bringing this application.
[9] For the sake of completeness, I find it pruden t to state the provisions of
section 17(1) of the SC Act which provides that;
"(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that -
(a) (i) the appeal would have a reasonable prospect of success, or
(ii) th ere is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall within the ambit of section
16 (2) (a); and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties."
[10] The Supreme Court of Appeal, still dealing with a test applicable in
applications for leave to appeal in, Cook v Morrisson and Another 2019(5) SA 51
(SCA) , stated that;
"[10] The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave. Something more, by
way of special circumstan ces, is needed. These may include that the appeal
raises a substantial point of law; or that the prospects of success are so
strong that a refusal of leave would result in a manifest denial of justice; or
that the matter is of very great importance to the parties or to the public..."
ANALYSIS
[11] In the recusal judgment I gave a background of this matter, which relates to
when the trial commenced on the 15 November 2021, the number of interlocutory
applications brought, the fact that evidence of a certain witness was reviewed as a
result of the complaint lodged by the applicant relating to the nature and quality of
interpretation and also that the state led the expert evidence of Professor
Labuschagne.
[12] The applicant took issue with the introduction of such background, as it was
not raised by the parties and further that it has no bearing on the applicant's
apprehension of bias, and in doing so the court misdirected itself and reaffirmed the
applican t's apprehension of bias. In support of such contention, the applicant relied
on amongst others what was stated in SAP SE v Systems Applications
Consultants (Pty) Ltd t /a Securifo and Another 2024(5) SA 514 (SCA) at para 19 ,
in which the following was stat ed;
"[19] Third, the extraordinary circumstances thus created by the judge were
compounded by the explanation offered in the judgment on the recusal. The
application was not about an abandonment of the hearing because the judge
'urgently had to go to the b athroom'. The first time that mention was made of a
bathroom break was in the recusal judgment. It is common cause that the
bathroom explanation was not mentioned at any of the following appropriate
times: (a) immediately upon the hearing resuming (when th e judge returned to
the virtual hearing hosted on the Zoom platform); (b) in the extensive
discussions with counsel immediately thereafter; (c) when the judge was
informed that a recusal application would be brought; or (d) during the hearing
of the recusa l application. It follows that the bathroom explanation did not form
part of the factual substratum on which the recusal application fell to be
determined because it was not disclosed and thus not known to the
reasonable, objective and informed person at t he relevant time. It is also
inconsistent with the direction moments earlier 'may we proceed please and
then you can argue that point'. Thus, the bathroom explanation, having not
been disclosed at the appropriate time was not only irrelevant for the
purpos es of applying the SARFU test, but there is also much to be said for the
suggestion that it is improbable and thus tends to exacerbate the
apprehension of bias. If that was indeed the reason, the judge would have
adjourned the court, as he had done on ever y other occasion, instead of
simply leaving in the expectation that the matter would proceed in his
absence."
[13] Also in support of this contention, the applicant placed reliance on the matter
of Four -Wheel Drive Accessory Distributors v Leshni Rattan 2018(3) JDR (SCA) .
Unfortunately, I could not find the authority referred to me by the applicant under
such citation, but it is reported under the following citation, Four Wheel Drive
Accessory Distributors CC v Rattan NO 2019(3) SA 451 . This is not a recu sal
application but appeal against a decision of a judge to deal in judgment with a plea
which was not introduced by the parties. At paragraph 20 thereof, the court stated
that;
"[20] But then the court embarked on an analysis of the common law duty to
act in good faith, and, with extensive reference to Barkhuizen , concluded that
the agreement was against public policy and therefore invalid. This, after it
had scarcely found that no agreement had been concluded between the
plaintiff and the defendant. The c ourt stated that the public policy concerns
discussed in Barkhuizen found expression in the Act and went on to find that
the agreement violated the Act in numerous respects. Neither of these issues
was raised in the pleadings; they were introduced by the c ourt a qu o of its
own accord.
[21] On first principles, a judgment must be confined to the issues before the
court. In Slabbert , this court said:
'A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible fo r a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.'
Further,
[23] ... When a judge intervenes in a case and has recourse to issues falling
outside the pleadings which are unnecessary for the decision of the case and
departs from the rule of party presentation, there is a risk that such
intervention could create an apprehension of bias. The court could then be
seen to be intervening on behalf of one of the parties, which would imperil its
impartiality. "
[14] The above matter is distinguishable from the matter in casu . No conclusions
or findings is made on the background that is introd uced in the recusal judgment. In
the recusal judgment of S v Zuma 2023 (1) SACR 621 (KZP) , which applicant also
placed reliance on, the background was introduced in that judgment by the court of
its own accord, and no findings and conclusions is made with regard to that
background.
[15] What is introduced in the recusal judgment in casu , is not an explanation but a
background which is not new but known to the applicant, who is a reasonable,
objective and informed person at the relevant time. The matter of SAP SE (supra ) on
this aspect is distinguishable from the current matter. The presiding judge in SAP SE
abandoned the virtual hearing (the manner in which the court was constituted during
covid era) not informing the parties about his conduct and even when he rejoined the
virtual hearing did not give an explanation of his conduct, but only explained his
conduct in his recusal judgment even though not requested to make such
determination.
[16] I therefore fail to understand why it is contended by the applican t that I
reaffirmed his apprehension of bias and I find this as a misplaced application of
SARFU test, no findings is made on those paragraphs which could be viewed as
having impacted on the conclusion arrived at in the recusal judgment.
[17] In South Afri can Judicial Education Journal (2019) 2 (1) at page 29 Smith J,
when writing about the importance of the opening paragraphs referred to, The
Elements of Legal Style by Bryan A Garner, who said the following;
"Our rule of structure is ironclad, the capital importance of the openers. The
opening paragraphs get the subject underway, it must engage readers, make
them want to stay the course. A weak opener weakens all that follows."
That was basically the indication when the background was introduced in the recu sal
application.
[18] Criticism is also levelled on the fact that I did not refer or consider the
authority favourable to the applicant's apprehension of bias, particularly S v Zuma
2023(1) SACR 621 (KZP) . Also, that despite referring to appropriate case law in the
recusal application, I failed to apply it correctly to proven facts and only paid lip
service to it. The applicant makes this contention without stipulating what is "proven
facts" and I guess that is left for me to speculate. But what is import ant is the
contention made by the applicant that "apprehension of bias" can be reaffirmed by
not appropriately considering authorities favourable to the applicant without
indicating how is it so. I am of the view that this kind of contenti on is the one th at the
applicant can raise at the end of the matter when all evidence in this matter is
considered. Ms Cronje referred me to several authorities that I did not rely on in the
recusal judgment. Put simply, I referred to authorities in the recusal judgment t hat
supported my reasoning in determining issues raised by the parties.
[19] I also made reference to the matter of Bernett v ABSA Bank Ltd (2010)
ZACC 28 , which was quoted with approval by Koen J in the Zuma matter were
reference is made to "the conduct o r utterances by a judicial officer prior to or during
proceedings." I am not criticised of applying the law correctly or incorrectly and
referring to wrong authorities, but only that I failed to apply such to proven facts,
which arguments did not arise in contention.
[20] Further criticism levelled against me is that I did not consider or properly
considered the grounds as formulated, singularly and/or cumulatively in the affidavit
in support of recusal application. The recusal judgment is clear on that asp ect, I also
made the following remarks;
"[33] ... 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."
[21] Applicant further contends that, by expressing a finding in the section 174
judgment, be it final, alternatively prima facie so, the court pronounced prematurely
its view of the quality, honesty, reliability and credibility of the complainants evidence,
without hearing or considering the viva voce evidence of the applicant, if he elects to
testify or the witness he intends on calling in the defence case.
[22] Suffice to mention that this is what the applicant contended in the recusal
application and that is not new, it is flawed in all material aspects. Firstly, I did not
make any final determination on issues, but I applied the prima facie test, and on th e
same breath guarding against the fair trial rights of the applicant, hence the
utterances that I made consistently that "at this stage of the proceedings" in the
section 174 judgment.
[23] In the recusal judgment at para 35, the following was stated.
"[35] ... The findings made at 174 application cannot be conclusive and be
said 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 decide 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."
[24] Secondly, section 174 enjoins the court to make a determination at section
174 proceedings without due regard to the viva voce eviden ce of the applicant. The
determination is made solely on the evidence presented by the state as what is put
to the witness does not amount to evidence. No evidential burden is placed on the
applicant as there is no duty on the applicant to prove his innoce nce.
[25] Thirdly, the insistence by applicant that I should have considered the
credibility of the state witnesses at the end of the trial, is the opposite of what I was
called by the applicant to determine. Credibility plays a limited role, and such can be
considered if evidence tendered is of a poor quality. When making such a
determination a revisit to the evidence tendered is necessary.
[26] Applicant referred me to a Mpumalanga High Court matter of Van der Walt
and Another v Magistrate N Mhlanga and the Director of Public Prosecutions
(600/19) (unreported), which I could unfortunately not find despite a thorough search
having been made. Despite that I do not think that the Magistrate in that matter was
requested to make a determination of the credibi lity of the state witnesses and as
such the situations in the two matters cannot be the same, based on what I was
requested to determine in this matter.
[27] The applicant used the words "shadow of doubt" which is unfortunately not my
finding. The applican t is represented by a Senior Counsel with extensive experience
in criminal proceedings, and I fail to understand the contention made by the applicant
of real, alternatively a reasonable apprehension of bias by the court. The applicant
through his counsel k nows very well that such terminology does not find application
in a criminal law context.
[28] It is also regrettable that the applicant in dealing with the matter of Ms M[...] ,
decides to pick only what is favourable to him. But on the proper reading of the
whole paragraph dealing with the complainant Ms M[...] , the following is clear on the
section 174 judgment;
"The accused can remember the days in which it is alleged that he raped the
complainant. Ms M[...] was criticised that being a former secret s ervice
member, she would have known that failure to report the rape incident had the
effect of not obtaining vital evidence like DNA specimen, which can lay the
issue of who the actual rapist is to bed. This submission in my considered
view, offends the pr ovision of section 59 (Sexual Offences and Related
matters Act). I fully agree with Ms Cronje's contention that Ms M[...] was raped
as a woman. That is despite the training in her field when she reported the
incident to Sharon, her friend, she was sceptic al that she would not be
believed when she will say that the accused raped her, looking at the type of
people who visit his church in the form of past presidents, MEC's and the fact
that the accused has a large following."
[29] The words "it is alleged t hat he raped the complainant" is used and as such it
is an indication that no conclusive finding was made, again this was also put in the
judgment in the context within which the evidence was presented. The same relates
to the evidence of M[...] R[...] , the words "alleged rape" is used. The applicant
wanted me to determine the provisions of section 208 of Act 51 of 1977 which
relates to evidence of single witnesses upon which conviction can be secured if such
is reliable and also cautionary rules with rega rd to her evidence. The applicant
requested this despite knowing that this is for determination at the end of the case.
As to why the applicant wanted this aspect to be determined at that stage of the
proceedings, that is a fact which is only known to the applicant.
[30] The applicant placed much reliance in this application on wh at was decided in
SAP SE matter, which I agree with that judgment, that the presiding judge was
supposed to have recused himself in that matter. At paragraph 30 of the judgment,
the following was stated;
"[30] In the circumstances, the reasonable, objective and informed person in
SAP's position would apprehend that a presiding judge, who: (a) prevents its
counsel from cross -examining a witness in response to a challenge from such
witness to be shown why his credibility is being impugned; (b) then irritatedly
abstracts himself from the hearing, without first adjourning; and, (c) whilst at
the same time directing that the hearing continue in his absence until counsel
has 'finished', h as shown himself to have closed his mind to the evidence and
the submissions of counsel. The belated improbable explanation by the judge
for his abrupt departure serves simply to exacerbate the apprehension. It
follows, as a consequence of the cumulative f actors alluded to, that the
question: whether a reasonable apprehension of bias can be said to exist,
must accordingly be answered in t he affirmative. What results from this is that
the further judgmen t of Tsoka J on the merits is vitiated by the nullity of the
proceed ings, which occurred as a result of him continuing to sit in a trial
where recusal was required. The only question is whether there is a
reasonable apprehension of bias: 'if there is, cadit quaestio (the question falls
away/the case is closed) , no matter what effect this might have on the
particular proceedings'."
[31] From the conclusion supra , it is clear that the matter is distinguishable from
the matter in casu .
[32] The applicant failed to convince this court on proper grounds that he has
prospects of success on appeal and that those prospects are not remote but have a
realistic chance of succeeding. There is no sound rational basis made out by the
applicant, for the conclusion that there are prospects of success on appeal. The
applicant in my considered view, failed to show that in a measure of certainty that
another court will come to a different conclusion. As a result, the application for leave
to appeal ought to fail.
ORDER
[33] In the result, the following order is made;
1. Applicati on for leave to appeal the refusal to recuse myself in the trial
of the applicant, is hereby refused.
M.J. MOSOPA
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES
FOR THE STATE : ADVOCATE J CRONJE
INSTRUCTED BY : THE DIRECTOR OF PUBLIC PROSECUTION
FOR THE ACCUSED : ADVOCATE PISTORIUS SC,
INSTRUCTED BY : RAHLAGANE ATTORNEYS
Date of hearing: 13 June 2025
Date of Judgment: 25 June 2025