(1)
(2)
REPUBLICOFSOUTHAF~CA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: REV 105/2024
LOWER COURT CASE NO: RP 26/2023
(3) REVISED.
Signature:
Oate
In the matter between:
ALFRED MULAUDI
and
THE REGIONAL COURT MAGISTRATE
PHALABORWA
THE DIRECTOR OF PUBLIC PROSECUTIONS ,
LIMPOPO
JUDGEMENT
STROHAJ
Applicant
1sr Respondent
2No Respondent
[ 1] The Applicant first appeared in the Phalaborwa regional court ( court
a quo) together with co-accused on the 17th August 2023 and was
charged with one count of the alleged offence of contravening the
provisions of Section SA read with Sections 98(a)( viii)99(1)(a) and
98(g) of the Mineral and Petroleum Resources Development Act 28
of 2002. The Applicant was legally represented and eventually
pleaded guilty to the account.
Summary of Events in court a quo
[2] The matter was several times postponed in the court a quo. On the
28th February 2024 in the court a quo the matter was again
postponed to the next available court date for the state witnesses to
be called to testify.
[3] However before the court a quo was adjourned, the First
Respondent suggested to the Applicant's legal representative that
he does not advise his client appropriately.
[4) The First Respondent suggested that if the Applicant pleaded guilty
to the charge, the First Respondent would only give them (Applicant
and Co-Accused) five years and suspend the sentence.
[5] Due to the First Respondent's comment in the court a quo, the
First Respondent decided on the 20th June 2024 to plead guilty
together with his co-accused ..
[6] However, after the conviction of the Applicant, the First
Respondent sentenced the Applicant to 10 years direct
imprisonment without the option to pay a fine.
[7] It is important to note, that the co-accused was also convicted, but
sentenced to five years wholly suspended.
[8] The Applicant is contending that the First Respondent's improper
remarks, induced him to plead the way the First Respondent has
suggested, in order for the Applicant to be dealt w ith the same day
and released as he has been in detention for 630 days.
{9] Due tv the way the court a quo conducted the proceedings; the
Applicant brought this review application based on section 22{1){b)
-(d) of the Superior Court Act 10 of 2013.
(1 OJ Section 22 of the Superior Court Act 1 O of 2013 states that:
(1 OJ Section 22 of the Superior Court Act 1 O of 2013 states that:
"22. (1) The grounds upon which the proceedings of any
Magistrates' Court may be brought under review before a court of a
Division are-
(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."
[11] According to the Applicant, this review application is premised on
the following grounds:
11.1 the First Respondent acted with malice, a lack of good faith,
and ulterior motive when he made improper remarks to the
Applicant and co-accused, by suggesting to them, if they
pleaded guilty, he w.ould give then five years wholly
suspended.
11.2 By making those improper remarks to the Applicants legal
representative, the First Responded committed a gross
irregularity.
11 .3 the First Respondent was aware of what he wanted to
achieve, when he induced the Applicant and co-accused to
plead guilty, in order to get a conviction without the state
leading evidence.
11 .4 To show that the First Responded acted in bad faith and with
ulterior motive of getting a conviction, he asked the
Applicant's legal representative the following question: "why
do you sometimes advise your clients not appropriately1?".
The Applicant's legal representative's response to the
question was : "It was exactly what I was busy with when the
Court walked in but they insisted. That is why."2
11.5 According to the Applicant, the First Respondent's offending
remarks: "Ja, because I can tell you from experience, you
now cannot hide.", 3 made the Applicant extremely
uncomfortable and cause the Applicant to doubt his
impartiality.
[12] In the Applicant's Heads of Argument, the Applicant is of the opinion
that the remark by the First Respondent:· you cannot hide" shows
that:
1 Court Bundle Index and Pagination Volume 1 page 34 line 8-9
2 Court Bundle Index and Pagination Volume 1 page 34 line 10-11
3 Court Bundle Index and Pagination Volume 1 page 34 line 12-13
12.1 the First Respondent was not prepared to afford the
Applicant and co-accused a fair trial, and it illustrates that he
did not presume them as innocent.
12.2 the First Respondent had a reasonable apprehension of
bias, and he had made up his mind about the Applicant's
guilt even before hearing any evidence from the State.
12.3 the First Respondent did not conduct the trial open-mindedly,
impartially and fairly.
[13) The Applicant also submitted in its Heads of Argument that the First
Responded influenced him to plead guilty, as the First Respondent
promised the Applicant a favorable sentence of 5 years that he, the
First respondent, will suspend.
[14] According to the Applicant, the remarks of the First Respondent
undermined the most important principles of fairness in the criminal
justice system as the Applicant's constitutional right to a fair trial
was violated.
[15] In terms of the Constitution of the Republic of South Africa, No108
of 1996 and more specifically section 35(3) of the Constitution
states:
"Every accused person has a right to a fair trial, which includes the
right-
(h) to be presumed innocent, to remain silent, and not to testify
during proceedings. "
[16) The Second Respondent fried a Notice of Intention Not to Oppose
and asked for the following order:
16.1" Reviewing and setting aside the criminal proceedings held at
Phalaborwa Regional Court before the Regional Magistrate
on the 20 June 2024;
16.2 Declaring the said proceeding null and void."4
[17] Section 98(a)(viii) of the Mineral and Petroleum Resources
Development Act 28 of 2002 states that:
"Any person is guilty of an offence if he or she -
" 2nd Respondent's Notice of Intention Not to Oppose
(a) contravenes or fails to comply with
(viii) any other provision of this Act."
[1 BJ Section 99(1 )(g) of the Mineral and Petroleum Resources
Development Act 28 of 2002 states that:
"(1) Any person convicted of an offence in terms of this Act is liable-
(g) in the case of any conviction of an offence in terms of this Act for
which no penalty is expressly determined, to a fine or to imprisonment for
a period not exceeding six months or both a fine and such imprisonment;"
[19} In Roberts v Additional Magistrate for the District of Johannesburg,
Mr Van den Berg and Anothe~ , the Supreme Court of Appeal and
more specifically the Honourable Judge Howie AJ stated that:
"[25] Bias in the sense of judicial bias has been said to mean -
"a departure from the standard of even-handed
justice which the law requires from those who
occupy judicial office."
See : Franklin v Minister of Town and Country
Planning[1948] AC 87 (HL) at 103, [1947] 2 All
ER 289 (HL) at 296 B - C .
What the law requires is not only that a judicial
officer must conduct the trial open-mindedly,
impartially and fairly but that such conduct
mustbe-
umanifest to all those who are concerned in the
trial and its outcome, especially the accused":
see S v Rall, 1982 (1) SA 828 (A) at 831 H -832 A.
[28] In S v Ma/indi 1990 (1) SA 962 (A) at 969 G -I
it was said that:
s Roberts v Additional Magistrate for the District of Johannesburg, Mr Van Den Berg and
Another(548!97) [1999] ZASCA 53; (1999] 4 All SA 285 (A) (3 September 1999Jpara 25 -
36
"The common law basis of the duty of a judicial
officer in certain circumstances to recuse himself was
fully examined in the cases of S v Radebe 1973 (1)
SA 796 (A) and South African Motor Acceptance
Corporation {Edms) Bpk v Oberholzer 1974 (4) SA
808 (T). Broadly speaking, the duty of recusal arises
where it appears that the judicial officer has an
interest in the case or where there is some other
reasonable ground for believing that there is a
likelihood of bias on the part of the judicial officer:
that is, that he will not adjudicate impartially. The
matter must be regarded from the point of view of the
reasonable litigant and the test is an objective one.
The fact that in reality the judicial officer was impartial
or is likely to be impartial is not the test. It is the
reasonable perception of the parties as to his
impartiality that is important. "
[34] There can be little doubt that it would detract from the
efficacy and decisiveness of the bias test if one were to say that the
suspicion concerned is one which the notional reasonable person
might have. That would be inconclusive. One needs to assess
what such person would think, not what such person might
possibly think. uMighf' in that regard, is no more significant than
"might nof'. And , as pointed out in Wade and Forsyth,
Administrative Law, lh ed, 482 ". . . if there was no real possibility
of bias, no reasonable person would suspect it." Equating, as I
think one must, "real" with "reasonable': that comment emphasises
that if the suspicion of bias is one based on reasonable grounds the
reasonable person would have it. If it were not so founded the
reasonable person would not have it. "Might" has no place in this
portion of the formulation in my opinion. One must therefore add to
the requirements of the test:
(4) The suspicion is one which the reasonable person refeffed
to would, not might, have.
[36} With the greatest respect I venture to say that there is an
important distinction between assessing the appearance of
bias through the eyes of a trained and experienced judicial officer
and assessing it through the eyes of a reasonable person, even
with the latter's possessing all the relevant knowledge. Wade and
Forsyth (at 483) consider the real danger test more objective than
that which involves determining the impression of a reasonable
person. Certainly, in eliminating the reasonable obseNer the real
danger test is more direct and no doubt the reasonable person,
although required to have reasonable grounds, would necessarily
be judged as viewing the events and circumstances from the
subjectivity of being, notionally, litigant or accused. However, the
real danger test may well do no more than switch one element of
subjectivity for another. The members of the court applying that
test are by training and experience as judicial officers themselves,
better equipped, it is true, to exercise objective judgment than a lay
litigant but it is that very training and experience which also give
them a subjective position and knowledge not possessed by the
notional reasonable person. They might know that a judicial
officer's behaviour and comment unfortunately can, on infrequent
occasions, be inappropriate but without any real danger of bias
existing. They may more readily, therefore, in a given case regard
a danger of bias as not real where the reasonable impression of
bias would nonetheless reasonably lodge in the mind of a
reasonable person suitably informed. Essentially, the real danger
test depends on the view from the Bench; the reasonable suspicion
test depends on the view from the dock. This is perhaps best
illustrated by a statement in R v Inner West London Coroner. ex
0 I
parte Dallaglio [1994} 4 All ER 139 (CA) in which the Court of
Appeal analysed Gough's case. At 152 a-bit was said:
u(B)y the time the legal challenge comes to be
resolved, the court is no longer concerned
strictly with the appearance of bias but rather
with establishing the possibility that there was
actual although unconscious bias."
Given a choice, the reasonable suspicion test accords better, in my
opinion, with the provisions and spirit of the Constitution. It is more
conducive to acceptance by the accused or the litigants that
proceedings will in the end be fair. And the constraining effect on
those presiding over trials and tribunals is salutary."
[20] From the caselaw quoted in paragraph 19 of this judgement, this
Honourable Court, is clear, that the First Responded was bias and
agree with what the Honourable Judge Howie AJ said in paragraph
36 in the judgement of Roberts v Additional Magistrate for the
District of Johannesburg which stated that : « there is an important
distinction between assessing the appearance of bias through the
eyes of a trained and experienced judicial officer and assessing it
through the eyes of a reasonable person, even with the latter's
possessing all the relevant knowledge. "
[21 J In S v Ra/16 the Learned Judge of Appeal - expressed the following
sentiments relating to the conduct of a trial: "(1) According to the
above-quoted dictum of Curfewis JA the Judge must ensure that
Justice was done'. It is equally important I think that he should also
ensure that justice is seen to be done. After all, that is a
fundamental principle of our law and public policy He should
therefore conduct the trial that his open-mindness, his impartiality
and his fairness are manifest to all those who are concerned in the
trial and its outcome, especially the accused ... ".
[22] This Honourable Court must intervene where the offending question
sustains the inference which it indeed does, and that is, that the
First Respondent was not open-minded, impartial, or fair during the
trial of the Applicant.
6 S v Ra// 1982 (1) SA 828 (A) at 831 H
[23) In the 2nd Respondent's Notice of Intention Not to Oppose and
more specifically in paragraph 13 of the founding affidavit, the 2n<1
Respondent said and this Honourable Court quote:
"13. With regard to the ground of alleged irregularity, this Court
should determine whether there was irregularity and if so,
whether it was substantial and resulted in grave injustice.
The following rules may be stated regarding irregularities:
13.1 The general rule regarding irregularities is that the Court will
be satisfied that there has in fact been a failure of justice if it
cannot hold that a reasonable trial court would inevitably
have convicted if there had been no irregularity.
13.2 In an exceptional case, where the irregularity consists of
such a gross departure from established rules of procedure
that the accused has not been properly tried, this is per sea
failure of justice.
The court in S v Xaba 71983 (3) SA 717 {A) at 728 C -D, stated that:
'Generally speaking, an irregularity or illegality in the proceedings at
a criminal trial occurs whenever there is a departure from those
7 S v Xaba 1983 (3) SA 717 (A) t 728 C-D
formalities, rules and principles of procedure with which the law
requires such a trial to be initiated or conductecf'.
[24] The following irregularities occurred in the court a quo :
[24.1] the First Respondent acted with malice, a lack of good faith,
and ulterior motive when he made improper remarks to the
Applicant and co-accused, by suggesting to them, if they
pleaded guilty, he would give then five years wholly
suspended.
[24.2] By making those improper remarks to the Applicants legal
representative, the First Responded comm itted a gross
irregularity.
[24.3] the First Respondent was not prepared to afford the
Applicant and co-accused a fair trial, and it illustrates that he
did not presume them as innocent.
[24.4] the First Respondent had a reasonable apprehension of
bias, and he had made up his mind about the Applicant's
guilt even before hearing any evidence from the State.
[25] This Honourable Court is of the view that the Applicant's review
application must succeed due to the presiding officer in the court a
quo:
Order:
[25.1) induced the Applicant and co-accused to plead guilty in
order to get a conviction without the state leading evidence.
[25.2) had a reasonable apprehension of bias, and he had made up
his mind about the Applicant's guilt even before hearing any
evidence from the state.
[25.3J did not conduct the trial open-mindedly, impartially and fairly.
[26] In the result the following order is made :
[26.1] The conviction and sentence imposed by the First
Respondent under case number: RP 26/2023 and dated 29th
J une 2024, is reviewed and set aside.
[26.2) The matter is remitted back to the court a quo for a trial de
novo before another magistrate should the prosecution still
wish to prosecute the accused.
[26.3) There is no order as to cost.
I AGREE :
APPEARANCES:
Counsel for the applicant
Instructed by
J D STRoHAJ
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
KGANYAGOJ
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
:Adv A Baloyi
: MG Mathe Attorneys Inc.
Counsel for the first respondent : In Default
Date heard: : §th September 2025
Electronically circulated on
~I,~
: ..l.~. Osteller 2025