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[2026] ZAGPPHC 305
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Phiri v S (CC8/2024) [2026] ZAGPPHC 305 (17 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: CC8/2024
(
1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
17
March 2026
SIGNATURE
In
the matter between:
SIPHO
PHIRI
Applicant
and
THE
STATE
Respondent
JUDGMENT
BHIKA,
AJ
Introduction
[1]
The accused has brought an application for my recusal due to an
apprehension
of bias on my part. The application is based on the
following—
(a)
the court displaying favouritism by not admonishing the state
advocate;
(b)
admonishing the defence counsel when it was not her fault;
(c)
provisionally admitting a statement of an absent witness; and
(d)
not admonishing the state advocate for the use of unacceptable
language.
Legal
Principles
[2]
In considering this application, I must bear in mind that justice
must
not only be done, but must manifestly and undoubtedly be seen to
be done.
[3]
South
African recusal principles are restated by the Supreme Court of
Appeal in
Maritz
v S
.
[1]
The principles include: (a) fairness during a trial is a central
requirement of the Constitution, in that (i) section 34 entrenches
the right of access to courts, (ii) so do sections 35(3) and 165(2)
of the Constitution, as well as (iii) the oath of judicial
office
prescribed by Schedule 2 of the Constitution.
[4]
Section 165 of the Constitution provides that the courts are
“independent
and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or
prejudice”.
[5]
The test in a recusal application is whether a reasonable, objective
and
informed person would, on the correct facts, reasonably apprehend
that the Judge has not brought, or will not bring, an impartial
mind
- that is, a mind open to persuasion by evidence and the submissions
of counsel - to bear on the adjudication of the case.
The test
involves a double-reasonableness approach, which entails that the
apprehension must be reasonable and that the person
apprehending the
bias must also be reasonable.
[6]
The test
was set out in
President
of the Republic of South Africa v South African Rugby Football Union
(SARFU 2)
[2]
and
South
African Commercial Catering and Allied Workers Union v Irvin &
Johnson Ltd Seafoods Division Fish Processing
(SACCAWU).
[3]
[7]
The Labour Court has emphasised that not only must the apprehension
of
bias be that of a reasonable person in the position of the party
whose conduct is being adjudicated upon, who has an objective factual
basis for the suspicion, but the apprehension of bias they must have
must be one that the law would recognise as raising a legitimate
concern about the adjudicator’s impartiality.
[8]
Even “a
strongly and honestly felt anxiety” will not satisfy the
test.
[4]
The test is
objective.
[5]
[9]
The ruling
in
Longano
v S
[6]
reinforces that an applicant bears the onus of showing that a
reasonable apprehension of bias exists, and that Judges have a duty
to sit unless this threshold is met.
[10]
The determination whether a Judge should recuse themselves from
hearing a case is based
on the applicant’s ability to rebut
successfully the presumption of impartiality that operates in favour
of the Judge’s
duty to sit in a case duly and lawfully assigned
to them. The requirement of impartiality on the part of a Judge is
not only a
common-law principle but also a constitutional obligation.
[11]
The first hurdle is the rebuttal of the presumption of impartiality,
which must be based
on concrete facts, not flimsy allegations or mere
suspicion, but cogent evidence that suggests that something the Judge
has done
or said gives rise to a reasonable apprehension of bias. The
totality of the circumstances must be considered.
[12]
The second hurdle is made up of two objective formulations rolled
into one test: the requirement
of a double-reasonableness test that
asks how a reasonable person would view the role of the Judge in the
particular case; and,
viewed from the perspective of this reasonable
observer, whether the Judge could be seen as one who has a vested
interest in the
outcome of the case. If so, would that reasonable
observer be acting reasonably by viewing the proceedings in that
court in that
light? These are the questions to ask, whether the
complainant is alleging actual bias on the part of the judge, or
merely a reasonable
apprehension of bias. In either case, the
double-reasonableness test applies, and the thresholds in both
circumstances are high.
[13]
In
S
v Roberts
,
[7]
actual bias is not required; the appearance of bias is sufficient to
justify recusal.
[14]
In
Coop
v SABC
,
[8]
the following was stated—
“
A trial is a
living phenomenon. It has a life of its own that changes from day to
day if not from hour to hour. The Judge in his
efforts to come to a
just and proper decision is enjoined to participate in this
phenomenon. Because he at one time adopt a provisional
prima facie
view, does not in any way demonstrate bias one way or the other.”
Scrutiny
of the Grounds
[15]
I now subject each of the grounds to the necessary scrutiny.
Ground 1: Court
showing favouritism to state counsel
[16]
On 18 March 2025, the State engaged with a state witness,
Ms Nomfundo Nkosi,
and the Court did not admonish the state
counsel. It is clear from the record that the Court allowed the state
counsel to provide
only emotional support to her witness. The State
had not been given permission to consult with the witness. This is a
rape matter,
fraught with emotions. The witness was highly
emotionally overcome several times during her testimony. No precedent
was set for
the State to approach any other state witness in a
similar manner, nor was such permission granted. This Court
admonished both
counsel for not having a collegial attitude. In my
view, counsel should have conferred with each other regarding the
State approaching
her witness and comforting her while she was being
cross-examined.
[17]
On 10 March 2026, the Court admonished the defence counsel
when it was not her
fault. It was apparent that the two counsel did
not confer with each other regarding the admission of Ratavha’s
second statement.
Both counsel should have conferred with each other
and realised that a full application could be dispensed with. In the
ordinary
course of a trial, a full application must be brought to
have a statement admitted. However, such an application would not be
necessary
if the other party has no objection to the admission of the
statement, provisional or not. Hence, the Court admonished both
counsel.
[18]
On 12 March 2026, the record indicates that the court duly
admonished the state
counsel for the use of unacceptable language.
The court warned the State to be respectful to the accused. It is
incumbent on me
to be firm with and to exercise discipline on all
court officials. I have a constitutional duty to ensure a speedy
trial, a fair
trial, and to maintain the dignity of the court
process. I ably fulfilled that duty.
[19]
I have admonished both counsel in equal measure.
Ground 2: Simamkele
Kweleni’s statement should not have been admitted
[20]
The statement was only provisionally admitted. A provisional finding
does not equate to
bias. Only after hearing the full argument by both
the State and the defence did the court make a ruling. The court also
provided
reasons for its decision. A provisional finding not in the
accused’s favour cannot be construed as bias. There is no merit
on this ground.
Ground 3: The court
curtailed objections by the defence counsel
[21]
On 10 March 2026, the Court did not allow the State to
present incorrect facts
to the accused. The court provided the
necessary protection to the accused. The accused himself pointed out
the correct facts to
the state counsel. This Court has, in no way,
permitted the state counsel to control the proceedings. This
allegation is wholly
without merit.
Finding
[22]
I have a constitutional obligation to administer justice without fear
or favour. I must
aid the administration of justice, not hamper it. I
must not too easily accede to suggestions of bias.
[23]
I have carefully scrutinised the apprehension of bias to determine
whether it can be regarded
as reasonable. I find that the
apprehension is not reasonable, and there is no justification for my
recusal.
[24]
The application for my recusal is refused.
Order
[25]
The application for the recusal of the presiding
Judge is refused.
BHIKA AJ
JUDGE OF THE HIGH
COURT
PRETORIA
Date
of Judgment:
17 March 2026
Appearances:
For the State:
Advocate Kabini
Instructed by:
Director of Public
Prosecutions
For the Accused:
Adv Mampuru
Instructed by:
Legal Aid South
Africa
[1]
Maritz
v S
[2024] ZASCA 72.
[2]
President
of the Republic of South Africa v South African Rugby Football Union
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (SARFU 2).
[3]
South
African Commercial Catering and Allied Workers Union v Irvin &
Johnson Ltd Seafoods Division Fish Processing
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC) (SACCAWU).
[4]
SACCAWU above n 3.
[5]
Id.
[6]
Longano
v S
[2016] ZAKZPHC 93.
[7]
S v
Roberts
1999 (4) SA 915 (A).
[8]
Coop v
SABC
2006 (2) SA 212
(W) at 217A–D.