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[2014] ZAWCHC 18
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S v Kirsch (A269/2013) [2014] ZAWCHC 18; 2014 (2) SACR 419 (WCC) (19 February 2014)
Republic of South
Africa
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Review Number: 14172
Magistrate’s
Court Serial Number: H20/2013
Case
Number: A269/2013
DATE:
19 FEBRUARY 2014
REPORTABLE
In the matter
between:
THE STATE
And
DAVID KIRSCH
SPECIAL
REVIEW JUDGMENT DATED 19 FEBRUARY 2014
IN
TERMS OF S 304(4) OF ACT 51 OF 1977
CLOETE J:
[1] This matter came
before me in chambers as a special review in terms of s 304(4) of the
Criminal Procedure Act No 51 of 1977
(‘the CPA’).
[2] The accused, who
was legally represented, was charged in the Paarl magistrate’s
court on 20 August 2013 on one count of
contravening s 27(18) read
with
ss 1
,
2
and
5
(1) of the
National Heritage Resources Act 25 of
1999
, it being alleged that he undertook construction work during
June/July 2011 which did not comply with building plans approved by
the heritage resources authority responsible for the protection of
the site concerned.
[3] He pleaded not
guilty and declined to provide a plea explanation in terms of
s 115
of the CPA.
[4] During the
course of the evidence of the first state witness it emerged that the
state would have to call a witness, Mr Johan
Malherbe, who is a
friend of the presiding magistrate, in addition to which Mr
Malherbe’s secretary is the magistrate’s
neighbour. The
magistrate then adjourned the proceedings until the following morning
in order to consider whether she should recuse
herself therefrom.
[5] Having regard to
the requirements set out in S v Roberts
1999 (2) SACR 243
(SCA) at
paras [32] to [33], which are referred to below, the magistrate
formed the view that the accused might be suspicious,
if convicted,
that she had been biased against him. On 21 August 2013 she informed
the parties of the need for her to recuse herself
and has referred
the matter to this court for the proceedings to be set aside and for
an order that the trial must commence de
novo before another
magistrate. There is a further difficulty in that a portion of the
evidence in the court a quo was not recorded.
[6] S 35(3) of the
Constitution provides that an accused person has the right to a fair
trial. In Roberts at para [26] the court
stated that:
‘It is settled
law that not only actual bias but also the appearance of bias
disqualifies a judicial officer from presiding
(or continuing to
preside) over judicial proceedings. The disqualification is so
complete that continuing to preside after recusal
should have
occurred renders the further “proceedings” a nullity...’
[7] The requirements
set out in Roberts are that: (a) there must be a suspicion that the
judicial officer might, not would, be biased;
(b) the suspicion must
be that of a reasonable person in the position of the accused; (c)
the suspicion must be based on reasonable
grounds; and (d) the
suspicion is one which a reasonable person would, not might, have.
[8] In S v Malindi
and Others
1990 (1) SA 962
AD at 969G-I the court stated the
following:
‘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 offier 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.’
[9] This matter has
been referred to this court in terms of s 304(4) of the CPA. The
question that arises is whether, in the circumstances
set out above,
the High Court has the power of review in terms of s 304(4) or any
other section of the CPA.
[10] S 304(4) of the
CPA provides that:
‘If in any
criminal case in which a magistrate’s court has imposed a
sentence which is not subject to review in the
ordinary course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the
provincial or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were
not in accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record
thereof had been laid
before such court or judge in terms of section 303 or this section.’
(emphasis supplied)
[11] S 304A(a) of
the CPA provides that:
‘If a
magistrate or regional magistrate after conviction but before
sentence is of the opinion that the proceedings in respect
of which
he brought in a conviction are not in accordance with justice, or
that doubt exists whether the proceedings are in accordance
with
justice, he shall, without sentencing the accused, record the reasons
for his opinion and transmit them, together with the
record of the
proceedings, to the registrar of the provincial divsion having
jurisdiction, and such registrar shall, as soon as
is practicable,
lay the same for review in chambers before a judge, who shall have
the same powers in respect of such proceedings
as if the record
thereof had been laid before him in terms of section 303.’
(emphasis supplied)
[12] S 118 of the
CPA provides that:
‘If the judge,
regional magistrate or magistrate before whom an accused at a summary
trial has pleaded not guilty is for any
reason not available to
continue with the trial and no evidence has been adduced yet, the
trial may be continued before any other
judge, regional magistrate or
magistrate of the same court.’ (emphasis supplied)
[13] In the present
matter the accused has pleaded and evidence has already been adduced.
He has also not yet been convicted or
sentenced. Accordingly, the
provisions of ss 304(4), 304A(a) and 118 of the CPA cannot apply: see
inter alia S v Engelbrecht and
Others
2005 (2) SACR 283
CPD at para
[3].
[14] In S v S
1999
(1) SACR 608
(WLD) at 612e-i the court held that:
‘In our view
the scheme of the relevant provisions of the [CPA] reflects an
intention on the part of the Legislature that
all criminal
proceedings in the magistrate’s courts should be capable of
being considered by this Court on review, and corrected
where they
are not in accordance with justice... In addition... this Court is
enjoined by section 39(2) of the Constitution of
the Republic of
South Africa 1996 to “promote the spirit, purport and objects
of the Bill of Rights”, which provides
in section 35(3) that
every accused person is entitled to a fair trial, which includes the
right of “appeal to, or review
by, a higher Court”. In
our view it would be a parsimonious construction of the Bill of
Rights which confined it only to
the immediate consequences of the
trial itself. In our view the clear spirit, purport and object of
that section is to ensure that
no person is condemned to endure a
penalty provided for by the criminal law without recourse being had
to another court in order
to correct any irregularity or injustice
which might have occurred in the course of the proceedings which have
had that result.’
[15] Although the
court is S v S was called upon to consider whether a decision by a
magistrate to put a suspended sentence into
operation fell within the
purview of s 304(4) of the CPA, there is no reason, in my view, why
the aforementioned approach should
not apply equally in the present
matter.
[16] In Magistrate,
Stutterheim v Mashiya
2003 (2) SACR 106
(SCA) at paras [13] and [14]
the Supreme Court of Appeal held that: (a) at common law, which
subsists under the Constitution, higher
courts have supervisory
powers over the conduct of proceedings in lower courts; (b) this
includes the power to intervene in unconcluded
proceedings; and (c)
the power must however be exercised only in cases of ‘great
rarity – where grave injustice threatens
and where intervention
is necessary to attain justice’. See also Engelbrecht at para
[5]; S v Khalema and 5 Similar Cases
2008 (1) SACR 165
CPD at paras
[10] to [13].
[17] S 24 of the
erstwhile Supreme Court Act 59 of 1959 provides that one of the
grounds upon which the proceedings of a lower court
may be brought
under review to a High Court is ‘interest in the cause [or]
bias’ on the part of the magistrate. This
section is relevant,
given that, in terms of
s 52(1)
of the
Superior Courts Act 10 of
2013
, it still applies to any proceedings pending prior to the
commencement of the latter Act on 23 August 2013.
[18] Whilst it is so
that the matter was not brought on application in terms of rule 53 of
the uniform rules of court, nor supported
by any notice of motion and
founding papers, I am in full agreement with the finding of the court
in S v Block
2011 (1) SACR 622
NCK at para [16] that ‘The
review powers of a High Court have been considerably extended by the
Constitution. Thus, greater
flexibility is possible in the
application of s 24 of the Supreme Court Act. Ultimately, what must
be determined is the fairness
of the proceedings.’ I am also in
agreement with the findings in S v Taylor
2006 (1) SACR 51
(CPD) at
paras [15] to [17], where the court, referring to s 173 of the
Constitution (namely, that the higher courts have the inherent
power
to protect and regulate their own process, and to develop the common
law, taking into account the interests of justice) held
that:
‘The approach
suggested in s 173 of the Constitution is indeed comprehensive for it
allows the exercise of the Courts’
inherent power, taking into
account the interests of justice, without being subjected to any form
of statutory constraint.’
[19] It is of course
not suggested that the learned magistrate is biased. This is not the
test in light of the decisions in Roberts
and Malindi. To my mind,
this is one of those exceptional cases where it can only be in the
interests of justice to exercise the
court’s inherent power and
to accede to the magistrate’s request.
[20] In the result
the following order is made:
1. The proceedings
to date in the court a quo are hereby set aside.
2. The case is
remitted to the court a quo to be heard by another presiding officer.
J I CLOETE
YEKISO J:
I agree.
N J YEKISO