S v Jaipal (CCT21/04) [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC); 2005 (1) SACR 215 (CC) (18 February 2005)

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[2005] ZACC 1
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S v Jaipal (CCT21/04) [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC); 2005 (1) SACR 215 (CC) (18 February 2005)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
21/04
SHANE JAIPAL Applicant
versus
THE
STATE Respondent
Heard on : 16 November
2004
Decided on : 18
February 2005
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
This application for leave to appeal against a decision of the
Supreme Court of Appeal (the SCA) deals with the constitutional
right of an accused person to a fair trial. It poses the question
whether the presence in an office, occupied by the assessors,
of
the state advocate on a daily basis, the investigating officer from
time to time, and a state witness occasionally, where
they were
seen by members of the public, renders criminal trial proceedings
irregular to the extent that a conviction and sentence
must be set
aside.
1
It does so against the background of practical difficulties such
as case backlogs and insufficient facilities in criminal courts.
The facts
and the proceedings in the High Court
In the early
afternoon of 21 October 1997 Mrs Argentina Pento Loutsaris, a 39
year old widow, was brutally attacked in Island
View Road in the
suburb of Bluff in Durban. Petrol was poured over her and she was
set alight. She died shortly afterwards.
The state charged the
applicant in this matter, 42 year old Mr Shane Jaipal, with murder.
The trial took
place in the Durban High Court (the High Court) before Squires J
and two assessors. Because of a shortage of accommodation
in the
High Court building, facilities were made available in the Pinetown
Magistrate’s Court.
The trial
commenced on Monday 12 June 2000. The applicant, as the accused,
was legally represented and pleaded not guilty to
the charge. His
defence was that of an alibi: At the time of the attack he was at
the University of Transkei in Umtata. The
state called 15
witnesses, including the son of the deceased, and closed its case
on Thursday 15 June. When the defence case
was due to start,
counsel for the applicant requested a postponement until Monday 19
June. On 19 June the applicant and another
six defence witnesses
testified. Two of these, Ms Sethuntsa and Mr Panday, gave evidence
in support of the applicant’s alibi.
Mr Panday’s evidence was
based on Telkom records of telephone calls. The evidence of the
two witnesses took the state by
surprise. An application to reopen
the state’s case in order to lead evidence in rebuttal was
granted. On 23 June 2000 Mr
Grobbelaar, a Telkom employee,
testified and produced a document which destroyed Mr Panday’s
evidence. The proceedings were
adjourned to Tuesday 27 June 2000.
On 27 June −
the eighth day of the trial − counsel for the applicant applied
for a special entry to be made in terms of
section 317
of the
Criminal Procedure Act 51 of 1977
. He submitted that the
proceedings had been irregular and not according to law, because
the two assessors had been sharing an
office with the prosecutor,
the investigating officer, and the son of the deceased, during
adjournments and recesses, including
in the mornings before the
court started as well as tea times. He added that the deceased’s
son was the state’s most important
witness. According to
counsel, it did not bother him because he knew “how things work
now and then on circuit”, but he had
been approached on many
occasions by members of the public who, because they had observed
what had been happening, were very
concerned and did not
“understand how the law works”. These included family members
and friends of the applicant. Eventually
counsel was approached by
his client, who instructed him to bring the application. He
stressed that he was not submitting that
the assessors actually
discussed the case with any of the other people in the office.
The prosecutor
informed the court that he did not have an office of his own and
that the office occupied by the assessors was
the only one from
where he could make telephone calls. He had called state witnesses
to make practical arrangements, but had
not discussed the case with
them in the presence of the assessors. He submitted that the
situation was unfortunate, and that
a prosecutor in “a case of
this magnitude” needed an office of his own, with a telephone.
It was an exaggeration to say
that he had been seen in the same
office as the assessors, the investigating officer and the
deceased’s son every day. The
investigating officer accompanied
him, because he was in possession of the telephone numbers of
witnesses. The deceased’s
son might occasionally have stepped
into the office after he had testified. He submitted that the
application was frivolous
and an abuse of the procedure of the
court.
The judge
asked counsel for the applicant whether he wanted to apply for the
recusal of the assessors. Counsel assured the court
that he was
not applying for their recusal.
The judge
indicated that he needed time to consult with the assessors and
reserved his decision. He allowed the prosecutor to
continue to
lead evidence in rebuttal of the alibi evidence. This evidence
rebutted the evidence of Ms Sethuntsa and the evidence
of Mr
Panday. The court thereafter recalled several witnesses. The
proceedings were adjourned to Durban for judgment, which
was
delivered on 25 July 2000.
For the
determination of this matter it is not necessary to deal with the
High Court’s detailed analysis of all the evidence
and legal
arguments. The High Court concluded that it was overwhelmingly
clear that Mr Panday had falsified the purported Telkom
document on
which his evidence was based. It furthermore found that Ms
Sethuntsa’s evidence did not support the alibi as to
the specific
day of the attack. The circumstantial evidence presented
established beyond a reasonable doubt that it was the
applicant who
had attacked the deceased. The High Court found the applicant
guilty as charged and subsequently sentenced him
to 20 years
imprisonment.
The applicant
then applied for leave to appeal to the SCA and at the same time
for the special entry to be made. Leave to appeal
was granted by
the High Court and the special entry was noted as sought.
Regarding the special entry, the shortage of accommodation
in the
Durban High Court and Pinetown Magistrate’s Court buildings was
mentioned by the judge in his unreported judgment.
Whereas there
was office space available for assessors (in what was essentially
the office of the judge’s registrar, shared
by the recording
apparatus operator and on one occasion by a defence witness), the
absence of office space for the prosecutor
was the real problem.
He had nowhere to leave his documents and bags and to make
telephone calls.
The judge
stated that it was not alleged, and indeed specifically disavowed,
that anything had been said by the assessors to the
prosecutor or
vice versa about any aspect of the trial during those moments of
“enforced proximity”. During the visits the
assessors would
merely continue with whatever they were privately doing and take no
interest in or notice of the intrusion.
The judge
concluded as follows:
“
While the situation was not
desirable, it seems to have been really unavoidable. There was
simply insufficient space for what is
ideally desirable. And it was
the same in an earlier sitting of the High Court in the same court
in May and will be the same for
the foreseeable future until the
present backlog of awaiting trial prisoners is reduced.
But to the public, who might
not realise the reason for a representative of the prosecution being
in the same small room as members
of the Court, it could be thought
that there was some possible connection or control on the part of
the assessors with the State.
Although I have no doubt whatever
that it had no such effect, I do not think it can be said that the
application is frivolous
and therefore the special entry will be
made as requested.”
The contents
of the special entry represent the factual basis on which this
matter has to be determined. The special entry reads
as follows:
“
That the proceedings in the
trial of the accused are irregular and not according to law, in that
the State Advocate, on a daily
basis, the investigating officer with
him from time to time and one of the State witnesses with both of
them on isolated occasions,
had been present in the same office
accommodation being used by the assessors, both before the
commencement of court proceedings
and/or during court recesses or
adjournments, and were so seen by members of the public attending
the trial.”
Bail was
granted to the applicant, pending the appeal, and the operation of
the sentence was conditionally suspended. The High
Court took the
special entry into account in this decision.
The SCA
In considering
the special entry and the possibility of bias, the SCA stressed the
importance of the judgment of this Court in
Van Rooyen and
Others v The State and Others (General Council of the Bar of South
Africa Intervening)
.
2
In that case it is stated that the perception that is relevant is
a perception based on a balanced view of all the material
information. The SCA concluded as follows in its unreported
judgment:
“
[12] . . . In the instant
case the material information on which public perceptions would be
based would include the statements
made by counsel for the appellant
and the State Advocate when the application for the special entry
was originally applied for.
A thoughtful and objective observer,
informed that no discussion about the case in fact took place
between the assessors and the
State Advocate, the investigating
officer and the deceased’s son and that their presence in the
office used by the assessors
was due simply to the need for certain
telephone calls to be made to State witnesses, without anything
being said about the case
itself, would, I am satisfied, not lose
confidence in the legal system and in particular its functioning in
the case in which the
appellant was being prosecuted.
[13] This approach to the
matter renders it unnecessary for me to decide whether, if the
statements to which I have referred had
not been made in open court
when the special entry was originally applied for, it was open to
the appellant to persist in his application
for the special entry
after he had been convicted when he had through his representative
specifically declined to ask for the recusal
of the assessors after
he became aware of the facts giving rise thereto. In this respect
the facts of this case differ from all
the cases where
irregularities which formed the subject of special entries were
complained of on appeal and where the irregularities
in question
were only discovered after conviction. It is also unnecessary to
consider whether on the facts of this case the special
entry was
correctly made or what the position would be if, although the public
were not informed of the true facts underlying the
alleged
irregularity, the appellant is to be regarded as having waived his
right to rely thereon.
[14] In all the circumstances I
am satisfied that the appeal based on the alleged irregularity set
forth in the special entry must
fail.”
As to the
merits, the SCA analyzed the evidence and the High Court’s
findings and concluded that the proven facts lead to only
one
reasonable inference, namely that it was the applicant who had
poured petrol over the deceased and set her alight. The appeal
based on the merits was therefore also dismissed.
The applicant
then applied to this Court for leave to appeal against the decision
of the SCA on the special entry only. The respondent
opposed the
application. The same two counsel who appeared in the criminal
trial and who argued the appeal in the SCA represented
the parties
in this Court.
Parties’
submissions; the law; the questions to be answered
According to
the applicant, his right to a fair trial, which is guaranteed in
section 35(3)
3
of the Constitution, was violated by the alleged irregularity.
Several
sections of the
Criminal Procedure Act deal
with irregularities.
Section 317
4
anc" HREF="#sdfootnote4sym">
4
provides for a special entry of an irregularity or illegality.
Section 318
states that if a special entry is made on the record,
the person convicted may appeal against the conviction on the
ground of
the irregularity stated in the special entry.
Section
322
then deals with the consequences on appeal of an irregularity.
A court of appeal may allow the appeal if it thinks that the

judgment of the trial court should be set aside.
5
When criminal proceedings are set aside because of an
irregularity, the question arises whether the accused can be tried
again
on the same facts. The possible institution of new
proceedings when a conviction is set aside is dealt with in
section
324.
6
anc" HREF="#sdfootnote6sym">
6
The
participation of assessors in criminal trials is provided for in
section 145.
7
anc" HREF="#sdfootnote7sym">
7
Section 146
8
anc" HREF="#sdfootnote8sym">
8
deals with the reasons for the decisions of a court, and
section
147
deals with the death or incapacity of an assessor, which is not
relevant here.
Before this
Court it was submitted on behalf of the applicant that he did not
have a fair trial, because the irregularity referred
to in the
special entry was of such a nature that it amounted without more to
a failure of justice. Counsel for the applicant
contended that the
fact of assessors sharing office space with the prosecutor and
others is as gravely irregular as the closeting
of jury members in
a room where a deputy sheriff was present in
S v Moodie
.
9
Therefore the proceedings should be set aside, before the issue of
proof beyond a reasonable doubt is even reached and the applicant
could be tried anew. It was furthermore argued that criminal
trials are held in public and that justice must not only be done,
but be seen to be done. It must be manifest to all those
interested in a trial − and in particular to the accused and his
or her family and friends − that the relevant judicial officers
conduct the trial fairly, impartially and with open minds.
The
appearance of bias may vitiate a trial wholly or in part.
Appearances and perceptions are relevant, because the public
need
to have confidence in the impartiality, fairness and independence
of courts.
Counsel for
the applicant agreed that there was no indication on the record
that any discussion of aspects of the case took place
between the
assessors and any of the persons using the office. He also made it
clear that the integrity of the assessors was
not being questioned.
He furthermore agreed that the question whether a failure of
justice occurred and whether the applicant
had a fair trial should
be judged at the end of the proceedings, in view of all the
evidence and the reasoned judgment of the
court. To this he added
that the findings of the High Court and the SCA on the analysis of
the evidence could not be criticized.
Counsel for
the state argued that the appeal related only to the evaluation of
the facts by the SCA and did not raise a constitutional
issue. He
also submitted that the application for leave to appeal had no
prospects of success and ought to be refused. By not
applying for
the recusal of the assessors, the applicant either accepted that a
failure of justice did not occur, or waived his
rights in that
regard. In his oral submissions to this Court counsel for the
state conceded that the situation was not ideal
and could have been
handled differently, but persisted that it was clear to everyone
that nothing improper happened. Should
the proceedings be set
aside, it might be very difficult if not impossible to have a new
trial, in view of the long time that
has lapsed and the large
number of witnesses involved.
The following
questions thus have to be dealt with: (1) Does the application deal
with a constitutional issue? (2) Did an irregularity
occur in the
High Court proceedings? (3) If so, did it result in a failure of
justice and render the trial unfair and should
the conviction and
sentence therefore be set aside? (4) In the event of this being the
case, could the applicant be charged again
on the same facts? In
order to answer these questions, the meaning of the guarantee of a
fair trial in section 35(3) of the
Constitution has to be analyzed,
as also the contents of the provisions of the
Criminal Procedure
Act regarding
irregularities and appeals, and then applied to the
facts of this matter. The role of assessors is particularly
relevant. The
explanation given as to the practical difficulties
with accommodation also requires attention.
A
constitutional matter?
The applicant
is not simply seeking to attack the factual findings of the SCA, as
argued by the state. He avers that the appearance
of bias or lack
of impartiality on the part of the assessors as members of the
trial court resulted in a failure of justice and
the violation of
his right to a fair trial. Questions about bias, the apprehension
of bias, a lack of impartiality and the recusal
of judicial
officers are constitutional matters.
10
This application deals with a constitutional matter.
The right to
a fair trial
Section 35(3)
of the Constitution states that every accused person has a right to
a fair trial.
11
The basic requirement that a trial must be fair is central to any
civilized 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,
12
and is based on values such as the advancement of human rights and
freedoms, the rule of law, democracy and openness.
13
The importance and universality of the right to a fair trial is
evident from the fact that it is recognized in key international
human rights instruments.
14
Section 35(3)
mentions 15 aspects of the right to a fair trial. The role of
assessors, or contact between members of a court
and members of the
prosecution, police or public is not expressly mentioned, but the
list is not exhaustive. In one of its early
judgments, this Court
expressed itself as follows in the words of Kentridge AJ in
S v
Zuma and Others
15
“
The right to a fair trial
conferred by [section 25(3)] is broader than the list of specific
rights set out in paras (a) to (j) of
the subsection. 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
Mthwana
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 s
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.”
In
Sanderson
v Attorney-General Eastern Cape
16
Kriegler J, referring to
Zuma
, again emphasized 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 t
o
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
pre
sumed
innocent.
He or she is also tried publicly so that
the trial can be seen to satisfy the substantive requirements of a
fair trial.”
17
In
S v Dzukuda
and Others; S v Tshilo
18
Ackerman AJ referred to the concept of substantive fairness
mentioned in
Zuma
and said:
“
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 subrights, some of which have been
specified in the
subsection and others not. The right to a fair trial is a
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)
He continued:
“
At the heart of the right to
a fair criminal trial and what infuses its purpose is for justice to
be done and also to be seen to
be done. But the concept of justice
itself is a broad and protean concept. In considering what, for
purposes of this case, lies
at the heart of a fair trial in the
field of criminal justice, one should be
ar
in mind that dignity, freedom and equality are the foundational
values of our Constitution. An important aim of the right to
a fair
criminal trial is to ensure adequately that innocent people are not
wrongly convicted, because of the adverse effects which
a wrong
conviction has on the liberty, and dignity (and possibly other)
interests of the accu
sed.”
19
(footnotes omitted)
The right of
an accused to a fair trial requires fairness to the accused, as
well as fairness to the public as represented by
the state. It has
to instil confidence in the criminal justice system with the
public, including those close to the accused,
as well as those
distressed by the audacity and horror of crime.
In the context
of the irregularity alleged to have occurred in this case, the
right to a fair trial must be understood in conjunction
with the
constitutional imperatives that the courts are independent and that
they must apply the law impartially and without
fear, favour or
prejudice,
20
that no person or organ of state may interfere with the functioning
of the courts,
21
and that organs of state must assist the courts to ensure the
independence, impartiality, dignity, accessibility and
effectiveness
of the courts.
22
The fairness
of a trial is threatened if a court is not independent, does not
apply the law impartially, or does not function
free from
interference. Inappropriate contact by a judicial officer with any
of the parties in a trial, or with witnesses, outside
the formal
court proceedings and especially in the absence of the parties on
the other side, cannot be conducive to the fairness
of the trial.
The principle that justice must not only be done but also be seen
to be done is well known, and has been recognized
by this Court as
at the heart of a fair criminal trial.
23
The
Criminal
Procedure Act
The
Criminal
Procedure 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.
24
Because criminal proceedings are aimed at ensuring a fair trial,
section 35(3) of the Constitution is of primary importance
when
interpreting the
Criminal Procedure Act.
25
Assessors
In terms of
section 145
a judge in the High Court may hear a case with one or
two assessors.
26
The assessors have to be people who, in the opinion of the judge,
have experience in the administration of justice or skill
in any
matter which may be considered at the trial.
27
Before an assessor hears any evidence, he or she has to take an
oath or make an affirmation, administered by the judge, to give
a
true verdict upon the issues to be tried, on the evidence placed
before him or her.
28
An assessor is
a member of the court. When a judge hears a matter with two
assessors, the decision or finding of the majority
of the court on
factual issues is the decision or finding of the court. Two
assessors may thus overrule the judge on factual
questions. When
only one assessor sits with the judge, the decision of the judge is
the decision of the court in the event of
a difference of opinion.
The judge alone decides questions of law, or any question as to
whether a matter constitutes a question
of law or of fact.
29
The judge must
give reasons for the decision or finding of the court, whether he
or she sits with or without assessors. In the
event of a
difference of opinion, the judge must also give the reasons of the
member of the court who is in the minority, or
of the assessor if
the judge sits with only one assessor.
30
The importance
of the role of assessors lies not only in their participation in
judicial decision making based on their experience
in the
administration of justice or their skills in specific matters which
may have to be considered at the trial. The participation
of
assessors in criminal trials allows for the involvement in the
court system of persons other than judges. Assessors do not
have
to be magistrates or even lawyers. They may be lay persons, as
long as they have the required experience and skills, at
least in
the opinion of the judge. In principle assessors, if chosen
carefully, could represent a significant degree of community
involvement in the judicial process.
31
As members of
the court, assessors have to be as impartial as the judge. Bias on
the part of assessors, or interference with
them in the performance
of their judicial functions, will be irregular.
Irregularities
Section 317
32
anc" HREF="#sdfootnote32sym">
32
provides that an accused who thinks that any of the proceedings in
connection with or during a trial are irregular or not according
to
law, may apply for a special entry to be made on the record by the
presiding judge, especially in a case where the alleged
irregularity does not otherwise appear in the record.
33
In practice the terms “irregular” and “not according to law”
have been regarded as synonymous.
34
Courts have ruled that an irregularity is an irregular or wrongful
deviation from the formalities and rules of procedure aimed
at
ensuring a fair trial.
35
The alleged
irregularity stated in the special entry is a ground of appeal,
which has to be dealt with by the relevant court of
appeal. In
terms of
section 322(1)
36
anc" HREF="#sdfootnote36sym">
36
the court of appeal may allow the appeal if it thinks that the
judgment of the trial court should be set aside on the ground
of a
wrong decision of any question of law or that on any ground there
was a “failure of justice”. Therefore a failure of
justice
must indeed have resulted from the irregularity for the conviction
and sentence to be set aside. In construing when
an irregularity
had led to a failure of justice, regard must be had to the
constitutional right of an accused person to a fair
trial. If an
irregularity has resulted in an unfair trial, that will constitute
a failure of justice as contemplated by the
section and any
conviction will have to be set aside. Whether a new trial may be
commenced against the accused will also require
a constitutional
assessment of whether that would be a breach of the right to a fair
trial or not. The meaning of the concept
of a failure of justice
in
section 322(1)
must therefore now be understood to raise the
question of whether the irregularity has led to an unfair trial.
Bias and
recusal
The importance
of the impartiality of assessors has always been recognized by our
courts.
37
In
R v Solomons
38
the fact that information detrimental to the accused, which had not
been presented in evidence, had been communicated to assessors
was
found to be irregular. It was decided that in such a case the
verdict had to be set aside, unless the court was satisfied
that no
failure of justice had in fact occurred. The conviction and
sentence were indeed set aside. Earlier in
R v Mabaso
,
39
which was cited with approval in
Solomons
, it was decided
that assessors who had access to inadmissible evidence should
retire from the court.
40
In
R v Matsego and Others
41
it was held that an assessor should retire from a case as soon as
it is proved that he has been given information which has not
been
presented in evidence and which is detrimental to the accused.
Influencing an assessor outside the formal proceedings of
a trial
could thus indeed be an irregularity resulting in a failure of
justice.
As stated
above, the applicant in this matter relies on the negative
perception created by the events involving the assessors.
In
S
v Roberts
42
it was held that a discussion between the magistrate and a
prosecutor in the absence of the accused’s counsel, after the

accused had been convicted and the court had adjourned, was
irregular. If the discussion occurred before conviction, there
could
be no question but that the conviction would be fatally
irregular; as it happened the sentence was in this case set aside.
Howie
JA stated that it was settled law that not only actual bias
disqualifies a judicial officer from presiding or continuing to
preside
over judicial proceedings. He furthermore stated as
follows:
“
In what is seen to be done,
appearances play a varied role in the fulfilment of the need for
fairness. The appearance of justice
is not enough. Justice must
not simply seem to be done. On the other hand the appearance of
bias may be enough to vitiate the
trial in whole or in part.
That justice publicly be seen
to be done necessitates, as an elementary requirement to avoid the
appearance that justice is being
administered in secret, that the
presiding judicial officer should have no communication whatever
with either party except in the
presence of the other:
R v
Maharaj
1960 (4) SA 256
(N) at 258B-C. That is so fundamentally
important that the discussion between the magistrate and the
prosecutor in the instant
case warranted on its own, without
anything more, the setting aside of the sentence.”
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
43
this Court dealt with an application for 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 the judge may be biased, acts in a manner
inconsistent with section 34 of the Constitution and in breach of
the requirements of section 165(2) and the prescribed oath
of
office.
44
The test for recusal on the ground of perceived bias was
“apprehension of bias” rather than “suspicion of bias”.
45
As to the nature of the judicial office the Court mentioned that,
in applying the test for recusal, courts have recognized 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.”
46
(footnote omitted)
As to the
undeniable importance of perceptions of independence, this Court
stated the following in
Van Rooyen
:
47
“
That the appearance or
perception of independence plays an important role in evaluating
whether courts are sufficiently independent
cannot be doubted. The
reasons for this are made clear by the Canadian jurisprudence on the
subject, particularly in
Valente v The Queen
. . .
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, held 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
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
. . .
The High Court adopted this
test. I agree that an objective test properly contextualised is an
appropriate test for the determination
of the issues raised in the
present case. The perception that is relevant for such purposes is,
however, a perception based on
a balanced view of all the material
information. As a United States court has said,
‘
we ask how things appear to
the well-informed, thoughtful and objective observer, rather than
the hypersensitive, cynical, and suspicious
person’.”
(footnotes omitted)
Application
of the law to the facts of this case
The judge in
the High Court described the situation in this matter as
“undesirable”. He was correct. The prosecutor submitted
that
the situation was “unfortunate”. He too was correct. The
presence of the prosecutor, the investigating officer and
a witness
for the state in the office used by the assessors during the trial
not only constituted an undesirable and unfortunate
situation, but
indeed an irregularity. It is irregular for a prosecutor, police
officer or witness involved in a case to be
in the office occupied
by an assessor in that case, in the absence of the legal
representative of the accused. The events in
this case constitute
a series of irregular incidents. They were irregular, because they
do not represent what one would regularly
expect in a properly
conducted criminal trial. They deviate from the norm and ought not
to happen.
According to
the applicant the irregular proceedings constituted without more a
failure of justice. The case of
Moodie
,
48
relied heavily upon by counsel for the applicant, is however
distinguishable from the present situation. The fact that the
deputy
sheriff was closeted in the jury room with the members of
the jury during their deliberations, but took no part in the
discussions,
was found to be an irregularity of such a nature as to
amount per se to a failure of justice. In the present context the
differences
between assessors and juries are substantial and
compelling. Assessors as members of the court determine questions
of fact with
the judge and their reasoning is made public. They
are people with experience in the administration of justice or
skill in any
matter to be considered at the trial. On the other
hand, the decision of a jury is that of the jurors, arrived at
after a discussion.
In the deliberations of juries each juror
should be free to express any view. No juror should be inhibited
by the presence
of any person who is not a sworn-in member of the
jury, who may be in a position to disclose to the judge or to
anyone else what
a juror has said. Of special importance is the
fact that juries do not furnish reasons for their decisions. A
reasoned decision
allows for close scrutiny of the conclusions
reached in view of the evidence presented and the influence of
irregularities on
a decision are more likely to be detected than in
the case of a finding reached in secrecy.
The applicant
also submits that a perception of bias resulted in a failure of
justice. As stated earlier, perceptions of the
legal system and
its processes are relevant. These would include not only
perceptions formed by an accused and those close to
him or her, but
also the perceptions of complainants, their family and friends, or
the general public. What is at stake is not
only the possibility
that the assessors in a situation such as the one that prevailed in
this case may have received information
or participated in
discussions on the trial. The appearance of closeness between the
assessors and the prosecution, the suspicion
that they may be on
the same side in a criminal justice system as adversarial as ours,
may be damaging indeed. One could imagine
assessors being subtly
or not so subtly influenced by, for example, the sad appearance or
angry attitude of the deceased’s
son, or the way in which the
prosecutor spoke to certain witnesses. As stated above, contact
between judicial officers and one
party to the trial in the absence
of the other does not accord with the ideals and imperatives of
independent courts that function
impartially and free from any
interference. However, the factual events which occurred during
the trial and the reasoning in
the judgment of the High Court are
important.
First, when
counsel for the applicant raised the issue in his initial
application for the special entry to be made, an explanation
and an
assurance were immediately given by the prosecutor: The situation
resulted from a shortage of office space and no discussions
with or
in front of the assessors took place. The explanation was given in
court, where the applicant, his family and friends
and members of
the public who were interested in the proceedings could hear it.
The explanation is part of the record.
Secondly,
counsel for the applicant did not dispute the material aspects of
the explanation. He furthermore did not request the
recusal of the
assessors, even when the judge invited him to do so. It is not
necessary to go into the question whether he waived
any rights on
behalf of the applicant, or whether rights could indeed be waived.
Factually the conduct of counsel, in the presence
of his client who
had just instructed him to apply for the special entry, indicates
that he decided that it was not necessary
to ask for recusal. He
accepted that the assessors would continue and he did so in open
court after the situation had been raised
and debated. The
inference has to be that there was no reasonable apprehension of
bias.
The contact
between the assessors and others was undesirable, unfortunate and
irregular. However, in view of this Court’s judgment
in
Van
Rooyen
49
it is clear that a balanced view of all material information in
this case would not result in a reasonable perception of bias
and
injustice on the part of a thoughtful and objective observer. The
finding of the SCA on this aspect is clearly correct.
In addition to
the above, and as far as the possibility of actual bias or
interference is concerned, it is clear that actual bias
on the part
of the assessors would have resulted in a failure of justice and an
unfair trial. However, there is nothing on the
record indicating
that the assessors were influenced in any way by the proximity of
the prosecutor and others and in any way
biased. Counsel for the
applicant specifically stated that he was not submitting that the
assessors were involved at all in
the discussion of the case. He
refrained from criticizing any aspect of the reasoning and
conclusions of the High Court and
the SCA as to the evidence and
the applicant’s conviction. The evidence of the one state
witness who was indeed seen in the
office, the son of the deceased,
played no role in the findings of the SCA.
Conclusion
It cannot be
said that a failure of justice occurred and that the applicant did
not have a fair trial in accordance with notions
of basic
substantive fairness and justice. There is no need to set the
proceedings in the High Court aside. Thus the question
of a new
trial does not arise.
This
conclusion follows from the specific facts of this case. Similar
irregular proceedings may under other circumstances well
result in
a different finding and a setting aside of a conviction or
sentence. Therefore a note of concern and caution has to
be
expressed on two points.
The first
relates to the status of assessors in our criminal justice system.
As stated above, assessors have considerable power
and could play
an important role in the functioning as well as the legitimacy of
criminal courts. Their dignity, status and
needs must be respected
by all those who interact with them in the performance of their
judicial duties. Assessors must also
be aware of the significance
of their role and act accordingly. It is apparent that the two
assessors were allocated space in
a small office, which was
primarily controlled by the judge’s registrar, and that they were
largely ignored by those who used
the office.
50
Apparently they also did little to assert themselves or to protect
their impartiality. This less than respectful and responsible
approach seems to be systemic, rather than attributable to the
personal attitude of any of the individuals involved in the case.

It is not acceptable.
The second
flows from the High Court’s remarks that the situation regarding
the insufficient office space was not desirable,
but that it had
been the same in an earlier sitting of the court and that it would
be the same in the foreseeable future until
the backlog of awaiting
trial prisoners is reduced. The statement by counsel for the
applicant about his knowledge and apparent
acceptance of the less
than ideal circumstances of circuit courts
51
also indicates that insufficient facilities are not uncommon as far
as criminal courts are concerned. The prosecutor rightfully
complained about the fact that no private office or telephone was
available to him at all.
For the state
to respect, protect, promote and fulfil the rights in the Bill of
Rights,
52
resources are required. The same applies to the state’s
obligation to assist and protect the courts to ensure their
independence,
impartiality, dignity, accessibility and
effectiveness.
53
The right to a fair trial requires considerable resources in order
to provide for buildings with court rooms, offices and libraries,
recording facilities and security measures and for adequately
trained and salaried judicial officers, prosecutors, interpreters
and administrative staff.
Few countries
in the world have unlimited or even sufficient resources to meet
all their socio-political and economic needs.
In view of South
Africa’s history and present attempts at transformation and the
eradication of poverty, inequality and other
social evils,
resources would obviously not always be adequate. However, as far
as upholding fundamental rights and the other
imperatives of the
Constitution is concerned, we must guard against popularizing a
lame acceptance that things do not work as
they ought to, and that
one should simply get used to it. Naturally the relevant
authorities must attempt to see to it that
facilities are provided
as far as possible. Furthermore, all those concerned with and
involved in the administration of justice
− including
administrative officials, judges, magistrates, assessors and
prosecutors − must purposefully take all reasonable
steps to
ensure maximum compliance with constitutional obligations, even
under difficult circumstances. Responsible, careful
and creative
measures, born out of a consciousness of the values and
requirements of our Constitution, could go a long way to
avoid
undesirable situations. (Counsel for the state for example
conceded that more prudent steps could have been taken in this
case.) To compromise the right to a fair trial may in principle be
as dangerous as to cancel or postpone democratic elections
because
of a lack of facilities or resources. This is all the more so in
view of concerns about crime and the need for the satisfactory
conclusion of criminal trials in South Africa.
Because these
remarks need to be brought to the attention of the relevant
authorities responsible for the administration of criminal
justice
and the training of judicial officers and prosecutors, I regard it
as useful to direct that this judgment be referred
to the Director
General of the Department of Justice, the Judges President of the
High Courts, the Magistrates’ Commission,
the National Director
of Public Prosecutions and the Director of Justice College.
The applicant
relied on his rights in terms of the Constitution and the
Criminal
Procedure Act. He
brought a constitutional matter linked to issues
of considerable public significance, such as the circumstances
under which criminal
proceedings sometimes take place, to the
attention of this Court. It is in the interest of justice for this
Court to hear the
matter. The application for leave to appeal must
be granted. For the reasons set out above, the appeal must however
fail and
the decision of the SCA must be upheld.
Order
The following
order is made:
The
application for leave to appeal is granted.
The appeal is
dismissed.
The Registrar
of the Constitutional Court is directed to furnish copies of this
judgment to –
the Director
General of the Department of Justice;
the Judges
President of the High Courts;
the
Magistrates’ Commission;
the National
Director of Public Prosecutions; and
the Director
of Justice College.
Langa ACJ, Madala
J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, Sachs J, Skweyiya
J and Yacoob J concur in the judgment of
Van der Westhuizen J.
For the
applicant: CJ Snyman instructed by Tomlinson Mnguni James.
For the
respondent: S Manilall instructed by the Deputy Director of Public
Prosecutions, KwaZulu-Natal.
1
The application is based on a special entry, the wording of which
appears in para 13 below.
2
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC). See para 43 below for
a quotation from this judgment.
3
S 35(3)
states:
“
Every accused person has a right to a fair trial,
which includes the right—
(a) to be informed of the charge with sufficient
detail to answer it;
(b) to have adequate time and facilities to prepare a
defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without
unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the
accused person by the state and at state expense, if substantial
injustice would
otherwise result, and to be informed of this right
promptly;
(h) to be presumed innocent, to remain silent, and not
to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating
evidence;
(k) to be tried in a language that the accused person
understands or, if that is not practicable, to have the proceedings
interpreted
in that language;
(l) not to be convicted for an act or omission that was
not an offence under either national or international law at the
time it
was committed or omitted;
(m) not to be tried for an offence in respect of an act
or omission for which that person has previously been either
acquitted or
convicted;
(n) to the benefit of the least severe of the
prescribed punishments if the prescribed punishment for the offence
has been changed
between the time that the offence was committed and
the time of sentencing; and
(o) of appeal to, or review by, a higher court.”
4
S 317
states:
“
(1) If an accused is of the view that any of the
proceedings in connection with or during his or her trial before a
High Court are
irregular or not according to law, he or she may,
either during his or her trial or within a period of 14 days after
his or her
conviction or within such extended period as may upon
application (in this section referred to as an application for
condonation)
on good cause be allowed, apply for a special entry to
be made on the record (in this section referred to as an application
for
a special entry) stating in what respect the proceedings are
alleged to be irregular or not according to law, and such a special
entry shall, upon such application for a special entry, be made
unless the court to which or the judge to whom the application
for a
special entry is made is of the opinion that the application is not
made bona fide or that it is frivolous or absurd or that
the
granting of the application would be an abuse of the process of the
court; and
(2) . . .
(3) . . .
(4) The terms of a special entry shall be settled by
the court which or the judge who grants the application for a
special entry.
(5) . . . .”
5
S 322(1)
states:
“
In the case of an appeal against a conviction or of
any question of law reserved, the court of appeal may—
(a) allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong
decision of
any question of law or that on any ground there was a
failure of justice; or
(b) give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the trial;
or
(c) 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.”
6
S 324
states:
“
Whenever a conviction and sentence are set aside by
the court of appeal on the ground—
(a) that the court which convicted the accused was not
competent to do so; or
(b) that the indictment on which the accused was
convicted was invalid or defective in any respect; or
(c) that there has been any other technical
irregularity or defect in the procedure,
proceedings in respect of the same offence to which the
conviction and sentence referred may again be instituted either on
the original
charge, suitably amended where necessary, or upon any
other charge as if the accused had not previously been arraigned,
tried and
convicted: Provided that no judge or assessor before whom
the original trial took place shall take part in such proceedings.”
7
S 145
states:
“
(1)(a) Except as provided in
section 148
, an accused
arraigned before a superior court shall be tried by a judge of that
court sitting with or without assessors in accordance
with the
provisions set out hereunder.
(b) An assessor for the purposes of this section means
a person who, in the opinion of the judge who presides at a trial,
has experience
in the administration of justice or skill in any
matter which may be considered at the trial.
(2) Where an attorney-general arraigns an accused
before a superior court—
(a) for trial and the accused pleads not guilty; or
(b) for sentence, or for trial and the accused pleads
guilty, and a plea of not guilty is entered at the direction of the
presiding
judge,
the presiding judge may summon not more than two
assessors to assist him at the trial.
(3) No assessor shall hear any evidence unless he first
takes an oath or, as the case may be, makes an affirmation,
administered
by the presiding judge, that he will, on the evidence
placed before him, give a true verdict upon the issues to be tried.
(4) An assessor who takes an oath or makes an
affirmation under subsection (3) shall be a member of the court:
Provided that—
(a) subject to the provisions of paragraphs (b) and
(c) of this proviso and of
section 217
(3) (b), the decision or
finding of the majority of the members of the court upon any
question of fact or upon the question referred
to in the said
paragraph (b) shall be the decision or finding of the court, except
when the presiding judge sits with only one
assessor, in which case
the decision or finding of the judge shall, in the case of a
difference of opinion, be the decision or
finding of the court;
(b) if the presiding judge is of the opinion that it
would be in the interests of the administration of justice that the
assessor
or the assessors assisting him do not take part in any
decision upon the question whether evidence of any confession or
other statement
made by an accused is admissible as evidence against
him, the judge alone shall decide upon such question, and he may for
this
purpose sit alone;
(c) the presiding judge alone shall decide upon any
other question of law or upon any question whether any matter
constitutes a
question of law or a question of fact, and he may for
this purpose sit alone.
(5) If an assessor is not in the full-time employment
of the State, he shall be entitled to such compensation as the
Minister, in
consultation with the Minister of Finance, may
determine in respect of expenses incurred by him in connection with
his attendance
at the trial, and in respect of his services as
assessor.”
8
S 146
states:
“
A judge presiding at a criminal
trial in a superior court shall—
(a) where he decides any question of law, including any
question under paragraph (c) of the proviso to
section 145
(4)
whether any matter constitutes a question of law or a question of
fact, give the reasons for his decision;
(b) whether he sits with or without assessors, give the
reasons for the decision or finding of the court upon any question
of fact;
(c) where he sits with assessors, give the reasons for
the decision or finding of the court upon the question referred to
in paragraph
(b) of the proviso to
section 145
(4);
(d) where he sits with assessors and there is a
difference of opinion upon any question of fact or upon the question
referred to
in paragraph (b) of the proviso to
section 145
(4), give
the reasons for the decision or finding of the member of the court
who is in the minority or, where the presiding judge
sits with only
one assessor, of such an assessor.”
9
1961 (4) SA 752
(A). This matter is discussed below in para 45.
10
See
S v Basson
[2004] ZACC 13
;
2004
(6) BCLR 620
(CC) at paras 18-24 and
President of the Republic of
South Africa and Others v South African Rugby Football Union and
Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 30.
This application is distinguishable from
S v Boesak
[2000] ZACC 25
;
2001 (1)
SA 912
(CC);
2001 (1) BCLR 36
(CC).
11
See n 3 above for the wording of
s 35(3).
12
">
12
See ss 10 and 11 of the Constitution.
13
See s 1 of the Constitution.
14
See article 10 of the Universal Declaration of
Human Rights, article 14(1) of the International Covenant on Civil
and Political
Rights, article 6(1) of the European Convention for
the Protection of Human Rights and article 7(1) of the African
Charter on Human
and Peoples’ Rights.
15
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995
(4) BCLR 401
(CC) at para 16. Kentridge AJ referred to s 25(3) of
the interim Constitution, the predecessor of s 35(3).
16
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 22.
17
Id at para 23.
18
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at para 9.
19
Id at para 11. In
S v Twala (South African Human Rights
Commission Intervening)
[1999] ZACC 18
;
2000 (1) SA 879
(CC);
2000 (1) BCLR 106
(CC) at para 9 Yacoob J also stated that “the purpose of s 35(3),
read as a whole, is to minimise the risk of wrong convictions
and
the consequent failure of justice”.
20
S 165(2) of the Constitution.
21
S 165(3).
22
S 165(4).
23
See the quotation from
S v Dzukuda
in para 28 above.
24
S 39(2) of the Constitution states:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
25
De Waal and others
The
Bill of Rights Handbook
4 ed
(Juta & Co, Landsdowne 2003) at 585 point out that s 35(3)
entrenches basic norms of criminal procedure, but does not
replace
ordinary rules and principles of criminal procedure. Statutory and
common law rules of criminal procedure apply, but must
comply with
the Constitution.
26
S 145
of the
Criminal Procedure Act is
quoted in n 7 above.
27
S 145(1)(b).
28
">
28
S 145(3).
29
">
29
S 145(4).
30
">
30
S 146(b)
and (c).
31
">
31
See for example Richings
“Assessors in South African Criminal Trials”
1976
Criminal
Law Review
107
; Van Zyl Smit & Isakow “Assessors and
criminal justice” 1985
SA Journal on Human Rights
218;
Bekker “Assessore in Suid-Afrikaanse Strafsake” in Strauss (ed)
Huldingingsbundel vir W A Joubert
(Butterworths, Durban 1988)
at 32; Van Zyl Smit "The compulsory appointment of assessors"
1979
SA Law Journal
173; Van Zyl Smit "The compulsory
appointment of assessors reassessed” 1984
SA Law Journal
212. The participation of assessors in criminal trials was
sometimes debated within the context of calls for the
re-introduction
of the jury system in South Africa in debates
preceding the constitutional drafting process. See for example Rood
"A return
to the jury system?" October 1990
De Rebus
749.
32
See n 4 above for the wording of
s 317.
33
See for example
S v Xaba
1983 (3) SA 717
(A) at 728D,
S v
Alexander and Others
(1)
1965 (2) SA 796
(A) at 809C-D and
S
v Pretorius en ‘n Ander
1991 (2) SACR 601
(A), as well as the
discussion by Kriegler and Kruger
Hiemstra Suid-Afrikaanse
Strafproses
6 ed (Butterworths, Durban 2002) at 887 and onwards
and Du Toit and others
Commentary on the
Criminal Procedure Act
(Juta
, Cape Town 1997) at 31−15 and onwards.
34
Kriegler and Kruger Id at 888.
35
The State v Mofokeng
1962 (3) SA 551
(A) at 557;
S v
Cooper and Others
1977 (3) SA 475
(T) at 476B-C;
S v
Ramovha en ‘n Ander
1986 (1) SA 790
(A) at 795H;
Sefatsa
and Others v Attorney-General, Transvaal, and Another
1988 (4)
SA 297
(T).
36
See n 5 above.
37
See Du Toit and others n 33 above at 31−18E.
38
1959 (2) SA 352
(A).
39
1952 (3) SA 521
(A).
40
The case was decided under the old Criminal Procedure Act 31 of
1917. Decisions on the admissibility of evidence had to be decided
by the judge alone.
41
1956 (3) SA 411
(A) at 418A-B.
42
1999 (4) SA 915
(SCA), especially at 922D-G, 923B-C.
43
See n 10 above.
44
Id at para 30.
45
Id at paras 36-38.
46
Id at para 41.
47
See n 2 above at paras 32-34.
48
See n 9 above. On jury systems, see Vidmar (ed)
World Jury
Systems
(Oxford University Press, Oxford 2000).
49
See n 2 above.
50
In response to questions counsel for the state indicated that one
would in such a situation ask the permission of the judge’s
registrar to use the telephone, and would be very hesitant to
approach the judge himself with such a request, but that the
permission
of the assessors would not necessarily be asked and was
in fact not asked.
51
Above at para 5.
52
S 7(2) of the Constitution states:
“
The state must respect, protect, promote and fulfil
the rights in the Bill of Rights.”
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S 165(4) states:
“
Organs of state, through legislative and other
measures, must assist and protect the courts to ensure the
independence, impartiality,
dignity, accessibility and effectiveness
of the courts.”