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
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 33/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
EMMANUEL TERTIUS OCTOBER Appellant
and
THE STATE Respondent
Neutral citation: October v The State (CA&R 33/2025) 31 October 2025
Coram: STANTON J et TYUTHUZA AJ
Heard: 08 September 2025.
Delivered: 31 October 2025.
Summary: Appeal against conviction of sexual assault – Alternatively that the
sentence of five years imprisonment be substituted with a sentence of
correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51
of 1977 (“the Act”) – Whether trial court erred in dealing with s 299A of the Act
prior to conviction – Whether trial court erred in unilaterally cancelling bail –
Whether trial court erred in dismissing the appellant’s application for recusal –
Cancellation of bail not in accordance with s 68 of the Act – Irregularities resulted
in an unfair trial – Reasonable apprehension of bias established – Appeal against
conviction upheld – Order granted in terms of s 322(1)(c) of the Act.
ORDER
1. The appeal is upheld.
2. The order of the Regional Court, Sutherland , is set aside and replaced
with the following:
2.1 The appeal against the conviction is upheld and, as a
consequence, the conviction and sentence are set aside.
3. The matter is referred to the Director of Public Prosecutions, Northern
Cape, to decide whether the appellant should be re-arraigned.
4. In the event that the appellant is re -arraigned, the trial must be before a
different Regional Magistrate.
JUDGMENT
Stanton J
Introduction:
[1] The appellant was charged with one count of contravening s 5(1), read
with s 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 1 (sexual assault). He is alleged to
1 32 of 2007.
have unlawfully and intentionally committed an act of sexual assault
against the complainant (LB), a 12-year-old girl, by touching her vagina on
09 April 2022 at Sutherland in the Regional Division of the Northern Cape.
[2] The appellant, who was legally represented at the trial, pleaded not guilty
to the charge proffered against him, but did not provide a plea explanation.
He was convicted on 15 September 2023; and on 01 November 2023, he
was sentenced to seven years’ imprisonment , of which two years were
suspended for five years on condition that he is not again convicted of
sexual assault during the suspension period.
[3] The trial court dismissed the appellant’s application for leave to appeal,
but he was granted leave to appeal on petition directed to the Judge
President of this Division.
The grounds of appeal:
[4] According to the appellant’s notice of appeal against the conviction and
sentence, the trial court erred in:
4.1 Dismissing the appellant’s application for recusal;
4.2 Being unreasonably biased against the appellant;
4.3 Dealing incorrectly with s 2 99A of the Criminal Procedure Act 51 of
1977 (“the Act”);
4.4 Unilaterally remanding the appellant in custody whilst he was on
bail;
4.5 Not handing down a balanced sentence;
4.6 Not considering all the available sentence options; and
4.7 Not sentencing the appellant to correctional supervision in terms of
s 276(1)(h) or s 276(1)(i) of the Act.
[5] It is not necessary to traverse the evidence, as the grounds of appeal
pertain to the question whether the appellant was afforded a fair trial or
not. The chronology of the events is, however, relevant.
[6] The appellant was arrested on 10 April 2022 and released on bail. His first
appearance in the regional court was on 05 September 202 2. The State
led three witnesses, namely the complainant, Ms. J d[...] B[...] (LB’s aunt),
and Mr. FM B[...] (LB’s father ). At the end of Mr. B[...]’s evidence, and
before the State closed its case on 31 March 2023, the trial court informed
Mr. B[...] that he has a right to make representations to the Parole Board
when the appellant’s parole is considered. On 11 May 2023, the
appellant’s wife testified as the first witness for the defence, after an
application was made for her to testify before the appellant. The appellant
then indicated that he would not testify in his own defence. However, after
10 minutes, he changed his mind and decided to testify. The appellant’s
attorney requested that the matter stand over to 12 May 2023 for the
appellant’s evide nce. The postponement was granted, but the trial court
ordered the appellant to be taken into custody; and that he be transferred
to Calvinia to be examined by a medical doctor. It is common cause that
the appellant had not transgressed his bail conditions and attended court
at all relevant times. At 13h00 on 12 May 2023, the appellant’s attorney
applied for him to be released. On 31 May 2023, the appellant filed a
written application for the recusal of the magistrate, which was refused.
The appellant closed his case without him giving evidence.
The test on appeal against conviction:
[7] In Rex v Dhlumayo and Another, 2 the Appellate Division ruled that the
ambit of interference in factual and credibility findings by the trial court is
constrained on appeal due to the reason that, unlike the trial court, the
appeal court has no live experience of the actual trial. The court held that
it will not disturb the factual findings of a trial court unless the latter had
committed a misdirection. 3 We must therefore be satisfied that the
ground(s) for appeal exists.
Fair trial:
[8] The Act is the key piece of legislation which regulates the process of
criminal trials. Its provisions must be interpreted to promote the ‘spirit,
purport and objects of the Bill of Rights ’.4 Because criminal proceedings
are aimed at ensuring a fair trial, s 35(3) of the Constitution is of primary
importance when interpreting the Act.
[9] The Constitutional Court in S v Jaipal 5 highlighted that the right to a fair
trial lies at the heart of a civilised criminal justice system, observing that:
‘Section 35(3) of the Constitution states that every accused person has a right to
a fair trial. The basic requirement that a trial must be fair is central to any civilised
criminal justice system. It is essential in a society which recognises the rights to
human dignity and to the freedom and security of the person, and is based on
values such as the advancement of human rights and freedoms, the rule of law,
democracy and openness.’6
2 1948 (2) SA 677 (A) at 705.
3 Ibid at 706.
4 See s39(2) of the Constitution of the Republic of South Africa, 1996.
5 2005 (1) SACR 215 (CC); 2005 (5) BCLR 423 (CC)
6 Ibid para 26.
[10] S v Zuma and Others (“Zuma”)7 is of assistance on the nature of
irregularities that render a trial unfair in a constitutionally impermissible
manner, where Kentridge AJ held:
‘The right to a fair trial conferred by that provision [section 25(3)] is broader than
the list of specific rights set out in paragraphs (a) to (j) of the sub -section. It
embraces a concept of substantive fairness which is not to be equated with what
might have passed muster in our criminal courts before the Constitution came
into force. In S v Rudman and Another; S v M thwana 1992 (1) SA 343(A) , the
Appellate Division, while not decrying the importance of fairness in criminal
proceedings, held that the function of a court of criminal appeal in South Africa
was to enquire:
“whether there has been an irregularity or illegality, that is a departure from the
formalities, rules and principles of procedure according to which our law requires a
criminal trial to be initiated or conducted”.
A court of appeal, it was said, (at 377)
“does not enquire whether the trial was fair in accordance with ‘notions of basic fairness
and justice’, or with the ‘ideas underlying the concept of justice which are the basis of all
civilised systems of criminal administration’.”
That was an authoritative statement of the law before 27th April 1994. Since that
date section 25(3) has required criminal trials to be conducted in accordance with
just those “notions of basic fairness and justice ”. It is now for all courts hearing
criminal trials or criminal appeals to give content to those notions.’
[11] In S v Molimi8, Nkabinde J had this to say:
‘[T]he right to a fair trial . . . “has to instil confidence in the criminal jus tice system
with the public, including those close to the accused, as well as those distressed
by the audacity and horror of crime. ” . . . More importantly, proceedings in which
7 [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (CC) para
7 [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (CC) para
16. [Kentridge AJ referred to s 25(3) of the interim Constitution, the predecessor of s 35(3) of
the Constitution of the Republic of South Africa, 1996].
8 [2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (2) SACR 76 (CC); 2008 (5) BCLR 451 (CC) para
42.
little or no respect is accorded to the fair trial rights of the accused have the
potential to undermine the fundamental adversarial nature of judicial proceedings
and may threaten their legitimacy.’
[12] In Sanderson v Attorney -General, Eastern Cape 9 Kriegler J, referring to
Zuma (supra), again emphasised the significant break from the past and
the need to conduct criminal trials in accordance with open -ended notions
of basic fairness and justice , and stated that a narrow textual approach
was likely to miss important features of the fair trial provision. He
proceeded as follows:
‘The central reason for my view . . . goes to the nature of the criminal justice
system itself. In principle, the system aims to punish only those persons whose
guilt has been established in a fair trial. Prior to a finding on liability, and as part
of the fair procedure itself, the accused is presumed innocent. He or she is also
tried publicly so that the trial can be seen to satisfy the substantive requirements
of a fair trial.’10
[13] In S v Dzukuda and Others ; S v Tshilo, 11 Ackermann J referred to the
concept of substantive fairness mentioned in Zuma and said:
‘. . . an accused's right to a fair trial under s 35(3) of the Constitution is a
comprehensive right and 'embraces a concept of substantive fairness which is
not to be equated with what might have passed muster in our criminal courts
before the Constitution came into force'. Elements of this comprehensive right
are specified in paras ( a) to ( o) of ss (3). The words “which include the right ”
preceding this listing indicate that such specification is not exhaustive of what the
right to a fair trial comprises. It also does not warrant the conclusion that the right
to a fair trial consists merely of a number of discrete sub -rights, some of which
have been specified in the subsection and others not. The right to a fair trial is a
9 [1997] ZACC 18; 1998 (2) SA 38 (CC); 1998 (1) SACR 227 (CC);1997 (12) BCLR 1675 (CC)
para 22.
para 22.
10 Ibid para 23.
11 [2000] ZACC 16; 2000 (4) SA 1078 (CC); 2000 (11) BCLR 1252 (CC); 2000 (2) SACR 443
(CC) para 9.
comprehensive and integrated right, the content of which will be established, on
a case by case basis, as our constitutional jurisprudence on s 35(3) develops. It
is preferable, in my view, in order to give proper recognition to the
comprehensive and integrated nature of the right to a fair trial, to refer to
specified and unspecified elements of the right to a fair trial, the specified
elements being those detailed in ss (3).’ (Footnotes omitted.)
[14] The Constitutional Court in S v Van der Walt (“Van der Walt”)12 stated that:
‘An accused is not at liberty to demand the most favourable possible treatment
under guise of the fair trial right. A court ’s assessment of fairness requires a
substance-over-form approach. The State correctly submits that the question is
accordingly whether the Regional Magistrate committed irregularities or deviated
from the rules of procedure aimed at a fair trial, and , if so, whether they were of
the kind to render the trial unfair.’ (Footnotes omitted.)
[15] I next deal with the appellant’s complaints in the light of the jurisprudence
discussed.
Section 299A of the Act:
[16] After LB’s father testified during the State’s case, the trial court, pursuant
to the provisions of s 299A of the Act, informed the complainant’s father
that he can participate in the parole proceedings if the appellant is
convicted. The learned Magistrate stated:
‘Now in terms of our law, Section 299 of the Act is now to be informed that if, and
it all depends, hence it is a big if, the court were to convict the accused, the
chances are that it is a direct imprisonment term, the kind of sentence that is to
be imposed. Now in that process, the court takes into account that it does
happen quite often at the correctional facility that the people who are serving
their sentences at times are considered as being due for an earlier release on
12 [2020] ZACC 19; 2020 (2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC) para 23.
parole. Now in that instance you are too entitled as a complainant because the
child is your child, and you are the adult. Here you have the right to participate in
the consideration of that earlier release on parole. You can either be approving of
that earlier release on parole or be opposed to that earlier release on parole. Of
course, to exercise your right, you need to be notified by the investigating officer
who will be in touch with the developments of the case. It is therefore of
importance to make the point that should you change your address, maybe in the
near future, you notify the investigating officer of the case as to what your latest
address is, understand. Simultaneously, then an order is made to yourself, Mr.
Sass, the prosecutor here, to make an endorsement in the diary of the docket to
let the investigating officer know that indeed the court did explain the provisions
to the complainant for an active participation, if this particular scenario pans out.’
[17] The legal representative on behalf of the appellant immediately took issue
with the Magistrate’s proceedings in terms of s 299A of the Act. The
following exchange transpired between the appellant’s legal
representative and the trial court.
‘Ms. Muller: Your Worship, with all due respect may I ask is this the norma l
procedure that a witness such as this is warned at this stage
before a conviction?
Court: That is why I say if. It is a normal procedure because I have the
duty of informing the complainant of their right of participation.
Ms. Muller: No, I am just worried because it created the impression now that
he may end up in jail and that parole may not … [intervenes]
Court: That is why I say if. Please now I said if, there is a big if. It all
depends on the evidence and if there is a conviction and take into
account the nature of the crime and the kind of sentences that are
normally punishable in this instance.
Ms. Muller: Is it not more appropriate stage to speak to this witness in this
Ms. Muller: Is it not more appropriate stage to speak to this witness in this
way at the end, when a conviction is already there.
Court: Where will this witness be for me to speak with?
Ms. Muller: He is living in this town, Your Worship.
Court: No, I do not like it like that. I am sorry, Ms. Muller.
Ms. Muller: Okay.
Court: The court, if it needs to be again in future you have an issue
please take me either on appeal or review in the matter.’
[18] Section 299A of the Act regulates the right of a complainant to make
representations in certain matters with regard to placement on parole, on
day parole, or under correctional supervision. It stipulates, in part:
‘(1) When a court sentences a person to imprisonment for-
. . .
(d) sexual assault, compelled sexual assault or compelled self -sexual
assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007, respectively;. . .
it shall inform-
(i) (the complainant; or
(ii) in the case of murder or any other offence contemplated in
paragraph (a), any immediate relative of the deceased, if he or she
is present that he or she has a right, subject to the directives issued
by the Commissioner of Correctional Services under subsection (4),
to make representations when placement of the prisoner on parole,
on day parole or under correctional supervision is considered or to
attend any relevant meeting of the parole board.’
[19] Mr. H Steynberg, on behalf of the appellant, submitted that s 299A is
unambiguous as a court shall only inform the complainant of the
provisions when a court convicts an accused and sentences the offender
to a term of direct imprisonment, and consequently, if the sentence is not
a term of direct imprisonment, s 299A is not applicable.
[20] The first question for determination is whether the manner in which the
trial court dealt with s 299A infringed on the appellant’s right to a fair trial.
[21] I agree that a trial court bears the obligation, in respect of complainants or
their relatives falling within the ambit of s 299A(1), to inform them of their
rights under s 299A concerning the making of representations should the
sentenced offender subsequently be considered for parole. It follows that
s 299A must be invoked by the sentencing court; thus, a precondition for
its invocation is that the trial court must first determine the guilt of the
accused and impose a sentence of imprisonment for the specified
offences contemplated in that section . In S v Nxumalo 13, the Court made
the following observation regarding s 299A of the Act:
‘Section 299A . . . underlines the philosophy of restoring the rights of victims and
clearly recognises that victims have the right to be informed of an offender’s
parole consideration. More importantly, they have the right to make
representations with regard to an offender’s parole decision. Despite this
statutory recognition, these rights remain hollow and non -existent unless the
prosecution service ensures that victims are present at court when an accused is
sentenced to imprisonment on one of the categories of crime as per s 299A(1)( a)
to (g).
The aforesaid section recognises formally that victims have fundamental rights
that should be upheld throughout the criminal justice process. Courts are obliged
to inform the victims of these categorised crimes of this right. As much as courts
are compelled to inform victims of their right to make representations, the
implementation of this section causes a practical problem, since presiding
officers are not in control of the victims’ details that testified before them. It is the
officers are not in control of the victims’ details that testified before them. It is the
office of the DPP that has such details and who should give meaning to the rights
13 (CCD6/2017) [2018] ZAKZDHC 48 (22 October 2018) para 4 – 6.
of the victims listed in s 299A and who has a duty to develop a policy that gives
effect to the legislation. . . .
In this matter, the sentencing of the accused was delayed because no
arrangement was made by the State to have the victims present at the
sentencing phase. Both the victims were present at the next date of sentencing
and have been informed of their s 299A rights.’
[22] It is further clear from the foregoing that it is only when a sentence of
direct imprisonment is the only appropriate sentence, that the sentencing
court must inform the complainant or his or her relatives (the “victims”) of
their rights in terms of s 299A of the Act . It is apposite, for purposes of the
present appeal, to mention that the offence of sexual assault the appellant
stood accused of, does not carry a prescribed minimum sentence of direct
imprisonment.
[23] I, however, align myself with the dicta in Van der Walt that a court ’s
assessment of fairness requires a substance -over-form approach. In view
of the trial court’s caveat that s 299A would be applicable only if the
appellant is found guilty; and sentenced to direct imprisonment, I find that
the irregularit y or deviation from s 299A was not of such an import to
render the trial unfair. (My emphasis underlined.)
Unilateral remand of the appellant in custody whilst he was on bail:
[24] The appellant’s second qualm is that the unilateral cancellation of his bail
amounted to an unfair trial.
[25] It is prudent to include the complete relevant part of the record pertaining
to the cancellation of the appellant’s bail herein, to place the matter int o
perspective. According to the record, on 11 May 2023, after the
appellant’s wife gave evidence, the following transpired:
‘Ms Muller: Your Worship, during the break between 2 and half past 2, the
accused informed me that he is shivering and he is in a state of
shock, and he is in no way able to give evidence. I do not know, I
spoke to him regarding the fact that if we can postpone until
tomorrow maybe, if he feels better, at that stage, but at this stage,
he says to me he does not want to go on and he has asked me to
close his case.
Court: I must ask you Mr October, stand up sir, Do you confirm these
submissions made?
Accused: Yes.
Court: So this is the defence case?
Ms Muller: Correct, your Worship.’
[26] The matter was briefly stood down to enable the prosecution and the
defence to prepare their closing arguments. On resumption, the following
occurred:
‘Ms Muller: Before the adjournment, the accused indicated that he is no state
to give evidence and that he rather wishes to close his case. Just
thereafter, he called me again and said to me, if it is possible for
the case to be postponed until tomorrow, he will then elect to give
evidence….My submission is, your Worship, that of the Court
could grant us this postponement until tomorrow, in order for him
to try and recoup himself and get into a state where he can give
evidence properly, because he is shiver ing as he is standing
there. I spoke to him personally, I saw him shivering. He is in no
state at this stage. So, all that I can say is, I do not have medical
evidence to confirm that, I can just say what I saw and what he
told me.
Prosecutor: Your worship, the State or my worry is, on the previous
appearance, if the Court can recall, after the State closed its case,
it was also postponed because the accused was not feeling well
and shivering…. We cannot postpone the case each and every
time because he is not well to proceed.
Ms Muller: Your Worship, it was not himself, it was his child that was sick,
that he had to take to hospital.’
[27] The matter was postponed until 12 May 2023, but the trial court, without
an application by the prosecution, ordered that the appellant should be
detained overnight; and taken to the district surgeon for a medical
examination and treatment; and an assessment to determine whether he
is fit to stand trial the following day.
[28] During her ruling, the trial court inter alia made the following remarks:
‘Now if again the Court were to listen to the accused who is seriously coming
across as one, nervous or sickly or having some issues at home, such that the
Court must give way for him, this is problematic.’ (My emphasis underlined.)
and
‘Because tomorrow, I do not know if again, he is not going to say he is tired or he
is not in a mood to testify. Now one of the fairness of the criminal proceedings
under section 35 of the Constitution, I doubt if it is about the mood or the feelings
of the accused.’ (My emphasis underlined.)
and
‘Date of tomorrow is 12 May 2023 for the defence case maybe, I am not sure. It
shall all depend on the accused, because whimsically he decides in whatever
way, but I respect whatever the case may be.’ (My emphasis underlined.)
[29] Section 68(1) of the Act regulates the circumstances and conditions for
the cancellation of bail in the following manner:
‘Any court before which a charge is pending in respect of which bail has been
granted may, whether the accused has been released or not, upon information
on oath that-
(a) the accused is about to evade justice or is about to abscond in order to
evade justice;
(b) the accused has interfered or threatened or attempted to interfere with
witnesses;
(c) the accused has defeated or attempted to defeat the ends of justice;
(cA) the accused has contravened any prohibition, condition, obligation or order
imposed in terms of-
(i) section 7 of the Domestic Violence Act, 1998;
(ii) section 10(1) and (2) of the Protection from Harassment Act,
2011;or
(iii) an order in terms of any other law,
that was issued by a court to protect the person against whom the offence
in question was allegedly committed, from the accused;
(d) the accused poses a threat to the safety of the public, a person against
whom the offence in question was allegedly committed, or any other
particular person;
(e) the accused has not disclosed or has not correctly disclosed all his or her
previous convictions in the bail proceedings or where his or her true list of
previous convictions has come to light after his or her release on bail;
(eA) the accused has not disclosed that-
(i) a protection order as contemplated in section 5 or 6 of the Domestic
Violence Act, 1998;
(ii) a protection order as contemplated in section 3 or 9 of the
Protection from Harassment Act, 2011; or
(iii) an order in terms of any other law,
was issued by a court to protect the person against whom the offence in
question was allegedly committed, from the accused and whether such an
order is still of force;
(eB) the accused has not disclosed or correctly disclosed that he or she is or
was, at the time of the alleged commission of the offence, a sentenced
offender who has been placed under correctional supervision, day parole,
parole or medical parole as contemplated in section 73 of the Correctional
Services Act, 1998;
(f) further evidence has since become available or factors have arisen,
including the fact that the accused has furnished false information in the
bail proceedings, which might have affected the decision to grant bail; or
(g) it is in the interests of justice to do so,
issue a warrant for the arrest of the accused and make such order as it may
deem proper, including an order that the bail be cancelled and that the accused
be committed to prison until the conclusion of the relevant criminal proceedings.’
[30] Our Constitution jealously safeguards an accused person’s rights to
personal freedom. The object of bail is aptly expressed by the Court in the
matter of the President of the Republic of South Africa v Zuma and
Others:14
‘Is there any material harm? It was argued that the harm of appearing in a
criminal court on 19 January was not material. This contention misses the point.
The harm lies not in the temporary inconvenience of physically attending a
hearing, if only for a formal postponement. The critical harm concerns a
fundamental constitutionally guaranteed right to personal freedom. That value,
which is foundational to our constitutional order, may never be treated lightly. Our
14 2023 (1) SACR 610 (GJ) para 17.
history instructs us that it is a matter of pride that South Africans value and assert
their freedom above all other considerations in the face of whatever adversity
they chance upon. Our law must guard that right and its exercise unreservedly.’
(My emphasis underlined.)
[31] The onus is upon the State to satisfy the court on a balance of
probabilities that there are sufficient grounds for the cancellation of bail in
terms of s 68 of the Act.15
[32] I am guided by the judgment of Matitwane v Regional Court President and
Another16 where the High Court, in a review application on similar facts,
set aside the regional court magistrate’s unilateral cancellation of the bail,
and confirmed that:
‘It is apparent that the cancellation of the bail of the applicant was not in line with
the provisions of section 68(1) of the CPA. There was no application that was
brought before the court and no evidence under oath was led which justified the
cancellation of bail. The presiding regional magistrate acted wholly mero motu
without being authorised by any legislation to take the step in the manner in
which she did. It is trite law that a magistrates’ court is a creature of statute and ,
in the absence of an enabling statute, the actions of the presiding regional
magistrate were grossly irregular.’17
[33] In my view: (a) the absence of an application by the prosecution to have
the appellant’s bail cancelled; and (b) the fact that no evidence was led
under oath to establish any of the jurisdictional circumstances set out in
s 68(1) to justify the cancellation of the appellant’s bail; is of such an
import that it violated the appellant’s constitutional right to freedom, which
renders the appellant’s trial unfair.
15 S v Nqumashe 2001 (2) SACR 310 (NC) para 17.
16 [2017] ZANWHC 71; [2018] JOL 39670 (NWM); [also reported as S v M atitwane 2018 (1)
SACR 209 (NWM)].
17 Ibid para 12.
The appellant’s application for recusal:
[34] Despite my finding s in paragraph 3 3, I deem it necessary to briefly deal
with the application for the recusal of the magistrate.
[35] According to the appellant’s written application, any reasonable person in
his position would have a suspicion that the magistrate might be biased
and impartial. The grounds in terms of which the recusal was sought are
twofold: (a) the magistrate’s incorrect application of s 299A of the Act, and
thereby creating the impression that the appellant had already been found
guilty; and (b) the irregularity with regard to s 68(1) of the Act.
[36] The appellant submitted under oath that:
36.1 He has always adhered to his bail conditions;
36.2 He would have attended to the medical clinic on his own accord to
receive treatment to calm himself down;
36.3 He was not allowed to fetch warm clothes from his house, despite
the horrific cold weather conditions;
36.4 Whilst being examined by the district surgeon, he was subjected to
a humiliating drug test, which had a negative result;
36.5 He does not suffer from any mental or psychiatric condition;
36.6 He was kept in a cell with criminals; and he feared for his life; and
36.7 At 13h00 on 12 May 2023, Ms. Muller placed it on record that he is
still in custody and had not received anything to eat.
[37] In President of the Republic of South Africa and Others v South African
Rugby Football Union and Others 18, (“SARFU”), the Constitutional Court
dealt with an application for the judges of the court to recuse themselves,
on the basis of a reasonable apprehension that they would be biased
against the applicant. The Court found that 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 a judge may be biased,
acts in a manner inconsistent with s 34 of the Constitution and in breach of
the requirements of s 165(2) and the prescribed oath of office. 19 The test
for recusal on the ground of perceived bias was ‘apprehension of bias ’
rather than ‘suspicion of bias ’.20 As to the nature of the judicial office, the
Court mentioned that, in applying the test for recusal, courts have
recognised a presumption that judicial officers are impartial in adjudicating
disputes; and concluded as follows:
‘The test should be applied on the assumption that a reasonable litigant would
take these considerations into account. A presumption in favour of Judges ’
impartiality must therefore be taken into account in deciding whether such a
reasonable litigant would have a reasonable apprehension that the judicial officer
was or might be biased.’21
[38] As to the undeniable importance of perceptions of independence, the
Constitutional Court stated the following in Van Rooyen and Others v The
State and Others (General Council of the Bar of South Africa
Intervening):22
‘That the appearance or perception of independence plays an important role in
evaluating whether courts are sufficiently independent cannot be doubted. The
18 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC).
19 Ibid para 30.
20 Ibid para 38.
21 Ibid para 41.
22 2002 (8) BCLR 810 (CC); 2002 (5) SA 246 (CC); 2002 (2) SACR 222 (CC) paras 32 – 33; see
also De Lange v Smuts NO and Others (1998) (3) SA 785 (CC); 1998 (7) BCLR 779 para 69.
reasons for this are made clear by the Canadian jurisprudence on the subject,
particularly in Valente v The Queen23 where Le Dain J held that:
“Both independence and impartiality are fundamental not only to the c apacity to do
justice in a particular case but also to individual and public confidence in the
administration of justice. Without that confidence the system cannot command the
respect and acceptance that are essential to its effective operation. It is, therefore,
important that a tribunal should be perceived as independent, as well as impartial, and
that the test for independence should include that perception.”
The jurisprudence of the European Court of Human Rights also supports the
principle that appearances must be considered when dealing with the
independence of courts.
When considering the issue of appearances or perceptions, attention must be
paid to the fact that the test is an objective one. Canadian courts have held in
testing for a lack of impartiality:
“the apprehension of bias must be a reasonable one, h eld by reasonable and right -
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal . . . that test is ‘what would an
informed person, viewing the matter realistically and practically - and having thought the
matter through - conclude’.”
This test was approved by the Court in Valente as being appropriate for
independence as well as impartiality. It is also similar to the test adopted by this
Court in [SARFU]…’
[39] Further, the Constitutional Court in South African Commercial Catering
and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods
Division Fish Processing) 24 emphasised the second aspect of the test,
stating that:
23 (1986) 24 DLR (4th) 161 (SCC) at 172.
24 [2000] ZACC 10; 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC) para 13.
‘The second in-built aspect of the test is that “absolute neutrality” is something of
a chimera in the judicial context. This is because Judges are human. They are
unavoidably the product of their own life experiences and the perspective thus
derived inevitably and distinctively informs each Judge ’s performance of his or
her judicial duties. But colourless neutrality stands in contrast to judicial
impartiality - a distinction the SARFU decision itself vividly illustrates. Impartiality
is that quality of open -minded readiness to persuasion - without unfitting
adherence to either party or to the Judge ’s own predilections, preconceptions
and personal views - that is the keystone of a civilised system of adjudication.
Impartiality requires, in short, “a mind open to persuasion by the evidence and
the submissions of counsel”; and, in contrast to neutrality, this is an absolute
requirement in every judicial proceeding.’
[40] In my view, the trial court’s unilateral cancellation of the appellant’s bail
creates a reasonable apprehension of bias. Furthermore, it is clear from
the record, and Ms . Muller argued, that the trial court did not grant her an
opportunity to address the court before the bail was cancelled. This
decision was clearly biased because the audi alteram partem rule was not
adhered to. Further, the premature invocation of s 299A, despite the
Magistrate’s emphasis on ‘if’ and my finding that it does not of itself render
the trial unfair , does, however, create an impression that the Magistrate
did not have an open mind to the appellant’s case . This becomes
apparent when the evidence in the record is viewed holistically wherein
the trial court, during the recusal application, acted in a derogatory way
thus bolstering the perception of a closed mindset towards the
submissions of the appellant’s legal representative by inter alia:
40.1 Persisting that there is no law that a trial court should only proceed
with s 299A after sentencing an accused to direct imprisonment,
with s 299A after sentencing an accused to direct imprisonment,
remarking that it is merely the appellant’s legal representative ’s
understanding of the section and stating ; ‘And now what about also
very same rights of the people concerned to have that explanation
be it heard in court and explained by the same court’ (sic);
40.2 Blindly defending the cancellation of bail on the assumption that the
appellant would not have been able to stay in Calvinia to attend to a
medical appointment at the clinic on his own; and
40.3 By laughing whilst being addressed by the appellant’s legal
representative.
[41] I am persuaded that the failure of the regional magistrate not to recuse
herself resulted in a failure of justice as it vitiated the trial.
[42] In the circumstances, the applicant’s conviction must be set aside. The
concomitant effect of this is that the sentence must also fall away. The
appellant’s conviction is not set aside on the merits. It is set aside on the
basis that the trial court committed irregularities whose nature was such
that the applicant’s right to a fair trial was infringed.
[43] Section 322(1)( c) of the Act provides that ‘[i]n the case of an appeal
against a conviction or of any question of law reserved, the court of appeal
may . . . make such other order as justice may require : provided that,
notwithstanding that the court of appeal is of opinion that any point raised
might be decided in favour of the accused, no conviction or sentence shall
be set aside or altered by reason of any irregularity or defect in the record
or proceedings, unless it appears to the court of appeal that a failure of
justice has in fact resulted from such irregularity or defect. ’ In S v
Balatseng,25 Mogoeng JP held that the power of a court of appeal to order
a trial de novo in terms of s 322(1)(c) of the Act , without an agreement
between the parties, is open to doubt.
[44] Because the conviction is not set aside on the merits, justice requires that
the matter be referred to the Director of Public Prosecutions, Northern
25 2005 (2) SACR 28 (B) para 22.
Cape, to decide whether the appellant should be re-arraigned. In the event
that the applicant is re -arraigned, the ensuing trial must be before a
different Regional Magistrate.
[45] In the result, the following order is made:
1. The appeal is upheld.
2. The order of the Regional Court, Sutherland , is set aside and replaced
with the following:
2.1 The appeal against the conviction is upheld and, as a
consequence, the conviction and sentence are set aside.
3. The matter is referred to the Director of Public Prosecutions, Northern
Cape, to decide whether the appellant should be re-arraigned.
4. In the event that the appellant is re -arraigned, the trial must be before
a different Regional Magistrate.
STANTON J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I concur
TYUTHUZA AJ
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
On behalf of the appellant: Adv H Steynberg
On instructions of: Legal Aid SA
On behalf of the respondent: Adv S Smith
On instructions of: The NDPP