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NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN) Case no: 642/2017 Date heard: 30 November 2017 Date delivered: 12 December 2017 In the matter between NONTHUTHUZELO PORTIA SIZANI Applicant and MR. MPOFU N.O. First Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS EASTERN CAPE Second Respondent

JUDGMENT PICKERING J: [1] This is an application by the applicant, Nontuthuzelo Portia Sizani, for the

review and setting aside of a refusal by the first respondent, Mr. Mpofu, an acting

regional magistrate in the Specialised Commercial Crimes Court, Port Elizabeth,

to recuse himself as presiding officer in case number CC1/105/2012 in which

applicant appears as the accused.

[2] The Director of Public Prosecutions, Eastern Cape, Grahamstown, is cited

as second respondent by virtue of his interest in the criminal proceedings.

[3] The applicant was charged with a number of offences in the Specialised

Commercial Crimes Court, the case being enrolled for the first time on 13

December 2012. The trial itself, however, only started before first respondent on

18 August 2014. The trial ran in fits and starts for 42 court days until eventually,

on 23 February 2016, the State’s case was closed. The matter was then

postponed to 26 July 2016 on which date an application for the discharge of the

applicant in terms of section 174 of Act 51 of 1977 was brought. The State

conceded that certain of the charges faced by applicant should be dismissed but

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argument was addressed to first respondent in respect of the remaining charges.

On 29 July 2016 first respondent dismissed the applicant’s application in respect

of these remaining charges.

[4] The matter was thereupon postponed to 21 November 2016. On that date

applicant brought an application for the recusal of first respondent on the basis of

his perceived bias. In support of this application applicant filed an affidavit

(Exhibit AJ) detailing the alleged conduct of first respondent giving rise to her

perception that he was biased against her. She states that when the case

commenced before him she had no reason to doubt his impartiality although she

knew that his wife was employed by the Department of Education as a teacher at

Queenstown. She states further, however, that as the trial proceeded she

developed a perception of bias on his part. She then proceeds to set out the

“events/incidents that singularly and/or collectively caused me to harbour the said

apprehension.” On 24 November 2016 first respondent dismissed this

application. Applicant thereupon launched the present application.

[5] In Motata vs Nair NO and Another 2009 (1) SACR 263 (TPD) the following

was stated by Hancke J and myself at paragraphs 9 and 10:

“[9] It is trite that as a general rule a High Court will not by way of

entertaining an application for review interfere with incomplete proceedings

in a lower court. As stated in Wahlhaus & others v Additional

Magistrate, Johannesburg & another 1959 (3) SA 113 (AD) at 119G, the

High Court will not ordinarily interfere whether by way of appeal or review

before a conviction has taken place in the lower court even if the point

decided against the accused by a magistrate is fundamental to the

accused's guilt. At 119H–120A Ogilvie Thompson JA (as he then was)

stated as follows:

‘It is true that, by virtue of its inherent power to restrain

illegalities in inferior courts, the Supreme Court may, in a

proper case, grant relief – by way of review, interdict,

or mandamus – against the decision of a magistrate's court

given before conviction. (See Ellis v Visser and Another 1956

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(2) SA 117 (W) and R v Marais 1959 (1) SA 98 (T), where

most of the decisions are collated.) This, however, is a power

which is to be sparingly exercised. It is impracticable to

attempt any precise definition of the ambit of this power; for

each case must depend upon its own circumstances. The

learned authors of Gardiner and Lansdown (6th Ed., vol. I

p.750) state:

'While a Superior Court having jurisdiction in review or appeal

will be slower to exercise any power, whether by mandamus or

otherwise, upon the unterminated course of proceedings in a

court below, it certainly has the power to do so, and will do so

in rare cases where grave injustice might otherwise result or

where justice might not by other means be attained . . . In

general, however, it will hesitate to intervene, especially

having regard to the effect of such a procedure upon the

continuity of proceedings in the court below, and to the fact

that redress by means of review or appeal will ordinarily be

available.'

In my judgment, that statement correctly reflects the position in

relation to unconcluded criminal proceedings in the

magistrate's court."

At 120D, the learned Judge continued:

"[T]he prejudice, inherent in an accused's being obliged to

proceed to trial, and possible conviction, before he is accorded

an opportunity of testing in the Supreme Court the correctness

of the magistrate's decision overruling a preliminary, and

perhaps a fundamental, contention raised by the accused,

does not per se necessarily justify the Supreme Court in

granting relief before conviction. (See too the observation of

Murray J at pp 123–124 of Ellis case supra.) As indicated

earlier, each case falls to be decided on its own facts and with

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due regard to the salutary general rule that appeals are not

entertained piecemeal."

[10] In Ismail & others v Additional Magistrate, Wynberg &

another 1963 (1) SA 1 (A) the following was stated at 5H–6A:

"I should point out that it is not every failure of justice which

would amount to a gross irregularity justifying interference

before conviction. As was pointed out in Wahlhaus and Others

v Additional Magistrate, Johannesburg and Another 1959 (3)

SA 113 (AD) at p119, where the error relied upon is no more

than a wrong decision, the practical effect of allowing an

interlocutory remedial procedure would be to bring the

magistrate's decision under appeal at a stage when no appeal

lies. Although there is no sharply defined distinction between

illegalities which will be restrained by review before conviction

on the ground of gross irregularity, on the one hand, and

irregularities or errors which are to be dealt with on appeal

after conviction, on the other hand, the distinction is a real one

and should be maintained. A Superior Court should be slow to

intervene in unterminated proceedings in the court below, and

should, generally speaking, confine the exercise of its powers

to 'rare cases where grave injustice might otherwise result or

where justice might not by other means be attained.'

(Wahlhaus's case, supra at p120)."

[6] In Walhaus and Another v The Additional Magistrate, Johannesburg supra

the following was stated at page 119:

“If, as appellants contend, the magistrate erred in dismissing their

exception and objection to the charge, his error was that, in the

performance of his statutory functions, he gave a wrong decision. The

normal remedy against a wrong decision of that kind is to appeal after

conviction... Nor, even if the preliminary point decided against the accused

by a magistrate be fundamental to the accused’s guilt, will a Superior Court

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ordinarily interfere – whether by way of appeal or review - before a

conviction has taken place in the interior court.”

[7] Also at 119 the court continued:

“[B]y virtue of its inherent power to restrain illegalities in inferior courts, the

Supreme Court may, in a proper case, grant relief – by way of review,

interdict or mandamus – against the decision of a magistrate’s court before

conviction. See Ellis v Visser and Another 1956 (2) SA 117 (W), and R v

Marais 1959 (1) SA 98 (T), where most of the decisions are collated. This,

however, is a power which is to be sparingly exercised ...”

[8] There is no doubt, however, that the High Court will interfere in

unterminated proceedings in a lower court should bias on the part of the presiding

officer be established. As was stated in Mulaudzi v Old Mutual Life Assurance

Company (South Africa) Ltd and Others 2017 (6) SA 90 (SCA) at paragraph 46:

“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. Take and Save Trading CC and Others v Standard Bank of SA

Ltd 2004 (4) SA 1 (SCA) at para 5.”

[9] Therefore, should bias on the part of the first respondent be established,

then, self evidently, grave injustice would be occasioned to applicant should this

Court not intervene in the unterminated proceedings.

[10] In Mulaudzi’s case supra, at paragraph 46, Ponnan JA stated as follows

with regard to the principles relating to recusal:

“The general principles are well-established. They are now enshrined in s

165(2) of the Constitution, which provides ‘the Courts are independent and

subject only to the Constitution and the law, which they must apply

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impartially and without fear, favour or prejudice.’ Thus a judicial officer

who sits on a case in which he or she should not be sitting, because seen

objectively, either he or she is either actually biased or there exists a

reasonable apprehension that he or she might be biased, acts in a manner

that is inconsistent with the Constitution.”

[11] At para 47 the learned Judge referred to his own judgment in S v Le

Grange 2009 (2) SA 434 (SCA) where he stated as follows:

“[14] A cornerstone of our legal system is the impartial adjudication of

disputes which come before our courts and tribunals. What the law

requires is not only that a judicial officer must conduct the trial open-

mindedly, impartially and fairly, but that such conduct must be “manifest to

all those who are concerned in the trial and its outcome ...” The right to a

fair trial is now entrenched in our Constitution ... The fairness of a trial

would clearly be under threat if a court does not apply the law and assess

the facts of the case impartially and without fear, favour or prejudice. The

requirement that justice must not only be done, but also be seen to be

done has been recognised as lying at the heart of the right to a fair trial.

[21] It must never be forgotten that an impartial judge is a fundamental

prerequisite for a fair trial. The integrity of the justice system is anchored

in the impartiality of the judiciary. As a matter of policy it is important that

the public should have confidence in the courts. Upon this social order

and security depend. Fairness and impartiality must be both subjectively

present and objectively demonstrated to the informed and reasonable

observer. Impartiality can be described – perhaps somewhat inexactly –

as a state of mind in which the adjudicator is disinterested in the outcome,

and is open to persuasion by the evidence and submission. In contrast,

bias denotes a state of mind that is in some way predisposed to a

particular result, or that is closed with regard to particular issues. 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.” In common usage bias describes “a leaning,

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inclination, bent or predisposition towards one side or another or a

particular result. In its application to legal proceedings, it represents a

predisposition to decide an issue or cause in a certain way that does not

leave the judicial mind perfectly open to conviction. Bias is a condition or

state of mind which sways judgment and renders a judicial officer unable to

exercise his or her functions impartially in a particular case.

[27] Notwithstanding that a judge’s own insights into human nature will

play a role in credibility findings or factual determinations, judges must

make those determinations only after being open to, and giving proper

consideration to the views of all the parties before them. “The reasonable

person, through whose eyes the apprehension of bias is assessed,

expects judges to undertake an open-minded, carefully considered, and

dispassionately deliberate investigation of the complicated reality of each

case before them.” In the end the only guarantee of impartiality on the part

of the courts is conspicuous impartiality.”

[12] It is trite that the test for apprehended bias on the part of a judicial officer is

objective and that the onus of establishing it rests on the applicant. President of

the Republic of South Africa and Others v South African Rugby Football Union

1999 (4) SA 147 (CC) at 45. The question is whether a reasonable, objective and

informed person would on the correct facts reasonably apprehend that first

respondent has 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. See too: Van Rooyen and Others v The State and

Others 2002 (5) SA 246 (CC) at 272B – 273E; Green Willows Properties v

Rogalla Investment Company Ltd [2015] ZASCA 133 at paragraph 25.

[13] In Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) the following was stated

at para 31:

“What must be stressed here is that which this Court has stressed before:

the presumption of impartiality and the double-requirement of

reasonableness. The presumption of impartiality is implicit, if not explicit,

in the office of a judicial officer. This presumption must be understood in

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the context of the oath of office that judicial officers are required to take as

well as the nature of the judicial function. Judicial officers are required by

the Constitution to apply the Constitution and the law “impartially and

without fear, favour or prejudice.” Their oath of office requires them to

“administer justice to all persons alike without fear, favour or prejudice, in

accordance with the Constitution and the law.” And the requirement of

impartiality is also implicit, if not explicit, in section 34 of the Constitution

which guarantees the right to have disputes decided “in a fair public

hearing before a court or, where appropriate, another independent and

impartial tribunal or forum.” This presumption therefore flows directly from

the Constitution.”

[14] At paragraphs 32 – 34 of Bernert, supra the Court held that it must be

assumed that through their training and experience judicial officers have the

ability to carry out their oath of office and to disabuse their minds of any irrelevant

personal beliefs and predispositions. The effect of this presumption of impartiality

is that a judicial officer will not lightly be presumed to be biased. Mere

apprehensiveness on the part of the applicant that the court will be biased, even a

strongly and honestly felt anxiety, is not enough.

[15] Before turning to consider the grounds set out by applicant that, according

to her, gave rise to her perception of bias, it is necessary to deal with a

preliminary point raised by Mr. Wessels, who appeared on behalf of applicant

both at her trial and before this Court. He raised, in limine, as a “cause for

serious concern” the fact that both respondents are represented in this application

by the State Attorney in Port Elizabeth and by the same firm of attorneys in

Grahamstown. He submitted that in the light of this questions could legitimately

be raised as to whether first respondent’s independence was not compromised

thereby. He submitted that in the event of the application being dismissed a

shadow would be cast over the impartiality of first respondent because of his

apparent association with the prosecution in opposing this application.

[16] Mr. Beyleveld S.C., who appeared on behalf of first respondent, pointed

out, however, that although both respondents were represented by the State

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Attorney in Port Elizabeth they are each represented by a different counsel. Each

respondent was, so he submitted, entitled to representation by the State Attorney.

The Grahamstown attorney is merely the local correspondent of the State

Attorney. Ms. Bakker, who appeared for second respondent, aligned herself with

these submissions.

[17] As submitted by Mr. Beyleveld the first respondent was impelled to file an

answering affidavit in the light of the allegations of bias and irregular conduct

levelled against him. In that affidavit, without in any way making common cause

with the prosecution’s case, he has reiterated, as he did in his judgment on the

recusal application, that he has and will at all times bring an open mind to bear on

the matter.

[18] In my view although it might have been preferable for first and second

respondents to have used different attorneys the allegation in the present

application that the respondents have “seemingly joined forces” against applicant

is devoid of merit.

[19] As set out above applicant stated that at the commencement of the trial

she had no reason to doubt first respondent’s impartiality although she knew his

wife was employed by the Department of Education. She avers, however, that

she was informed during the course of the trial by a “reliable ex-employee” of the

Department of Education, who wished to remain anonymous, that first respondent

was endeavouring to get the Department of Education to transfer his wife from

Queenstown to Port Elizabeth where he is stationed and that in order to achieve

this the co-operation of the Department of Education was required. In the light of

this fact, so she avers, where the Department of Education not only initiated the

investigation of the case against her but is in fact the main complainant, the

relationship between the first respondent and the Department was such “as to

render first respondent to be a judge in his own cause, which disqualifies him

automatically from hearing the matter.” (Compare: S v Dube and Others 2009 (2)

SACR 99 (SCA); Minister of Safety and Security v Jongwa 2013 (3) SA 455

(ECG)).

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[20] The remaining events specified by her relate to the admissibility of a

certain statement (Exhibit W) attested to by a witness, Ms. Tembela Plaatjie, in

respect of counts 13 and 28; the court’s finding at the close of the State’s case in

dismissing an application for the discharge of the applicant that the State’s

evidence was “not of such a poor quality that it could not safely be relied upon”;

the court’s finding at the close of the State’s case that the counts are inextricably

intertwined; and the failure by the State to provide the defence with copies of all

relevant information before the commencement of the trial.

[21] The allegations concerning first respondent’s wife were refuted by first

respondent in his judgment in the recusal application. He stated that his wife had

in fact resigned from the Department of Education at the end of February 2013,

some six months before the commencement of the trial. In response thereto

applicant states that “in the light of the now available information, as placed on

record by the first respondent and accepted by me as correct, and in accordance

with advice from my attorney, Mr. Meyer, I do not wish to proceed with this

ground as a basis for his recusal.”

[22] In his judgment first respondent stated also that “the timing of the raising of

this issue is a cause for concern because the applicant ‘knew’ from the beginning

of this case that my wife was an employee of DOE.” He states that in his view

applicant had not acted in good faith in waiting to bring the application for recusal

based on this ground instead of applying for his recusal at the commencement of

the trial. In reply hereto applicant does not deny that she was in possession of

the information concerning first respondent’s wife at the commencement of the

trial. She states, however, that at the commencement thereof she “had no reason

to doubt the impartiality of the first respondent and that it was only as the trial

progressed that I developed a perception of bias on his part and on receipt of the

information pertaining to the transfer of first respondent’s wife.”

[23] In my view if applicant genuinely believed that first respondent’s

relationship with the Department of Education was such as to automatically

disqualify him from presiding then it is difficult to understand why she did not bring

an application for his recusal at the commencement of the trial instead of waiting,

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in effect, to see which way the wind was blowing. Be that as it may, applicant has

now conceded that her perception of bias in this regard was wrong. It would

appear, as was submitted by Ms. Bakker, that such unwarranted perception may

have coloured the prism through which she viewed first respondent’s conduct of

the proceedings. First respondent’s alleged relationship and dealings with the

Department of Education would have provided, in her eyes, a motive for his

alleged bias, a motive which it now transpires was non-existent.

[24] Given the presumption of impartiality an application for recusal is not to be

lightly made. It is concerning, in my view, that an allegation of bias, such as

would have immediately disqualified first respondent from hearing the matter,

could be made based on hearsay information from an undisclosed source, with

no attempt having been made to verify the allegations. The correct facts would

have been readily ascertainable.

[25] First respondent was addressed at great length on this ground, both by Mr.

Van Rooyen S.C., who was brought into the matter to lead Mr. Wessels for the

applicant on this aspect, as well as by Ms. Brink for the State. Throughout these

addresses, during which copious reference was made to applicable cases, the

first respondent sat silently, during which time the record was turned into

something akin to what Schutz JA referred to in S v Ramavhale 1996 (1) SACR

639 (A) at 651c as a “papery sump.” It was only in his judgment that first

respondent revealed for the first time that applicant’s allegations were incorrect.

It is a matter of considerable surprise that he did not inform the parties of the

correct situation immediately the point was raised. Had he done so a lot of time

and trouble would have been saved.

[26] I turn then to consider the remaining grounds on which the allegations of

bias are based.

THE ADMISSIBLITY OF THE STATEMENT, EXHIBIT W

[27] On 26 June 2015 the State called Ms. Plaatjie as a witness. She was a

so-called section 204 witness. After she had testified at some length the State

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prosecutor applied for her to be declared a hostile witness. Despite opposition

thereto by an attorney representing Ms. Plaatjie, and by Mr. Wessels on behalf of

the applicant, the court on 26 June 2015 declared her to be a hostile witness.

Her attorney then objected to the admissibility of her statement, Exhibit W, on the

grounds that it had been obtained under duress and by threats of prosecution.

Mr. Wessels for the applicant made common cause therewith. He submitted that

it was necessary for a trial within a trial to be held in order to determine the

admissibility of Exhibit W prior to any cross-examination of Ms. Plaatjie on the

contents thereof by the prosecutor. In the course of his address first respondent

stated as follows:

“Mr. Wessels, I am inviting your wisdom in this regard. Would the

consideration of the admissibility of this evidence, when considered at the

consideration of the whole evidence in totality, be something untoward?”

[28] In response thereto Mr. Wessels pointed out that the issue of the

admissibility of the statement had to be addressed before the close of the State

case. He submitted further that the witness could not be cross-examined on the

contents of her statement, Exhibit W, until such time as that statement had been

declared admissible.

[29] The first respondent stated that he needed time to “consider this issue

deeply”. The case was accordingly adjourned until 29 June 2015 when both Mr.

Wessels and the prosecutor addressed further argument to first respondent on

the issue of admissibility. Thereafter the first respondent delivered a short

judgment in the course of which he stated as follows:

“There is nothing in our law that stops us, or that give the authority to the

court to bar the State from cross-examining a witness after that witness

has been declared a hostile witness. At this stage, it will be putting the

wagon ahead of the oxen, if the court were to anticipate that the State will

go the route of trial-within-a-trial or not. Whether this evidence should be

admissible or not, is something that has got to be determined when the

court evaluates the evidence in its totality. So that stage has not yet

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arrived. I am not sure which route the State is going to take, whether it is

going to open a trial-within-a-trial, or what route is it going to take, but the

court will have the duty to evaluate that evidence after, when evidence is

put before it. So based on those grounds, the State would be allowed to

continue and to cross-examine the witness.” (sic)

[30] With respect to the first respondent it would appear from the above

passages that he has confused the issue of the admissibility of the statement with

the issue of the weight to be attached thereto at the end of the trial in the event

that it was declared to be admissible.

[31] The prosecutor accordingly proceeded to cross-examine Ms. Plaatjie as to

the circumstances in which she came to make the statement, Exhibit W. Mr.

Wessels objected to any questions relating to the contents of the statement until

such time that the admissibility of the statement had been resolved. The first

respondent stated that “as to whether the statement is admissible or not, that is

something that will have to be considered at a later stage.” Again Mr. Wessels

objected, submitting that the court would have to resolve the question of

admissibility before the witness could be cross-examined thereon and before the

close of the State case. This was overruled. The cross-examination of the

witness thereafter proceeded with Mr. Wessels objecting every time that a

question was addressed to her concerning the contents of the statement. The

matter was then postponed to the following day, 30 June 2015. At the

commencement of the proceedings on that day Mr. Wessels again raised the

question of the admissibility of Exhibit W. With reference to certain authorities,

including S v Mdygolo 2006 (1) SACR 257 (E), Mr. Wessels submitted that the

failure of the court to hold a trial-within-a-trial in respect thereof might well

constitute a material irregularity vitiating the proceedings. He submitted that

although the witness had been cross-examined on the statement there was

nothing preventing the court from revisiting the matter and directing that the

admissibility issue be dealt with and resolved by way of a trial-within-a-trial.

[32] In argument before us Mr. Wessels referred to a number of other

authorities including S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) in support

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of his submissions concerning the admissibility of Exhibit W. He submitted that

Mhlongo’s case, read with the provisions of section 219A of Act 51 of 1977,

precluded the admissibility of Exhibit W in these proceedings. The judgment in

Mhlongo, supra, was handed down on 25 June 2015 and first respondent was not

referred to it in the course of argument before him on 29 June 2015.

[33] Whatever the merits of Mr. Wessels’ submissions may be, a matter on

which I express no opinion, it seems to me that the matter is possibly not as clear

cut as Mr. Wessels would have it. Firstly, S v Mdygolo supra dealt with the failure

to hold a trial-within-a-trial in respect of a confession allegedly made by an

accused and was not concerned with the issue of a statement allegedly made

under duress by a State witness. Secondly, the matter of S v Panayioutou and

Others, unreported case number CC26/2016 (ECP), is relevant. In that matter a

section 204 witness alleged that his statement implicating the accused had been

procured under duress and torture by the police. The defence submitted that his

statement was accordingly inadmissible and that a trial-within-a-trial should be

held to determine its admissibility. This submission was rejected in no uncertain

terms by Chetty J who stated, at paragraphs 10 to 14 of his judgment, that the

fallacy of the argument advanced was the conflation of the position of a witness

and an accused. Chetty J held that the procedure of a trial-within-a-trial was

available only to an accused person and that the suggestion that a trial-within-a-

trial be held was “a disingenuous attempt to exclude otherwise admissible

testimony.”

[34] As I have said, in the circumstances of this case it would not be

appropriate for me to express a view thereon. The fact is, however, that there is

judicial support for first respondent’s initial refusal to hold a trial-within-a-trial and

nothing sinister can be read into that refusal.

[35] In the course of his address to first respondent and with reference, inter

alia, to S v Mangena 2012 (2) SACR 170 (GSJ) Mr. Wessels also submitted yet

again that the defence must know at the close of the State’s case what evidence

was admissible or not and again reiterated that first respondent could not in the

circumstances only consider the admissibility of Exhibit W at the end of the trial.

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There can be no doubt that his submissions in this regard were correct. As was

stated in S v Molimi 2008 (2) SACR 76 (CC) an accused has the right to know the

case against him or her. At paragraph 42 the following was stated:

“It is not open to question that a ruling on the admissibility of evidence after

the accused has testified is likely to have an adverse effect on the

accused’s right to a fair trial. It may also have a chilling effect on the public

discourse in respect of critical issues regarding criminal proceedings.

More importantly, proceedings in which little or no respect is accorded to

the fair trial rights of the accused have the potential to undermine the

fundamental adversarial nature of judicial proceedings and may threaten

their legitimacy. There are further adverse consequences. For example,

when a ruling on admissibility is made at the end of the case, the accused

will be left in a state of uncertainty as to the case he is expected to meet

and may be placed in a precarious situation of having to choose whether to

adduce or challenge evidence.”

[36] Be that as it may, first respondent stated that “the stand of the court was

not based on the fact that the issue of a trial-within-a-trial would be disallowed in

totality but that court was of the view that the issue of a trial-within-a-trial was not

due at that stage because the State was still cross-examining the witness based

on that statement. But now that we know what type of animal we are dealing

with, we know now whether we are dealing with a domestic animal or a wild

animal; then the court is in a position now to state that to be in a position not to

review its decision per se but since we know now what type of evidence we have,

the issue of a trial-within-a-trial will be allowed at this stage because after the

statement had been made and the cross-examination took place, we now know

what type of an animal we are dealing with. So, based on those grounds, the

court is not necessarily making a review of what it had decided but now that

everything is before it, it deems fit or it deems it prudent that a trial-within-a-trial

can be allowed under the circumstances. So, the court, if the parties deem so fit,

that trial-within-a-trial will be allowed.” (sic)

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[37] Whatever first respondent intended to convey in this passage the fact is

that he was obviously swayed, albeit belatedly, by the submissions made by Mr.

Wessels. A trial-within-a-trial was duly held. At the conclusion thereof first

respondent adjourned the trial until after the weekend stating that “I will be selling

myself short of time if I am going to make a promise to bring judgment tomorrow.

Actually I will not doing justice to the case. Based on the fact that the court needs

some time to apply its mind, and to reach a fair judgment, actually to reach a just

judgment, the court will only pass judgment on this aspect on Monday and not

tomorrow. I need to do justice.”

[38] On resumption of the matter first respondent commenced by indicating his

unhappiness with the manner in which the defence had, in his words, put “some

snares in the court’s path”, stating that the conduct of the defence “is giving me

an indication that this court must not start to consider convicting the accused,

because the case will be taken to another court. There is a proper way to deal

with such matter, and that was, that way is to take the case to the appeal court at

an appropriate time. However, the remedy cannot be used to scare, as a

scarecrow during the proceedings.” First respondent then stated that he had an

obligation to act independently and apply the law impartially without fear, favour

or prejudice. He proceeded to state that “as a judicial officer of this court I will

continue to jealously defend this territory.”

[39] As was submitted by Mr. Wessels this criticism of the conduct of the

defence came as a bolt from the blue. It was not preceded by any statement by

or conduct of Mr. Wessels which would in any way justify it. On the contrary, as

is apparent from the record, Mr. Wessels at all times conducted himself in an

impeccably proper, ethical and respectful manner. Although his defence of

applicant was tenacious and his submissions on occasion forceful he did not in

any way improperly threaten first respondent that should he not rule in applicant’s

favour on any particular issue the matter would be taken on review. It is perhaps

inevitable that tensions will arise in the course of a trial of this nature but first

respondent’s overly defensive reaction was in the circumstances uncalled for and

unfortunate. Apart from this outburst first respondent’s interactions with counsel

and witnesses were beyond reproach. In any event I did not understand Mr.

17

Wessels to rely on these remarks as having contributed to applicant’s alleged

perception of bias.

[40] Dealing with the merits of the admissibility of Exhibit W first respondent

stated that he “deemed it prudent to take a painstaking route of reading the

statement.” He evaluated the evidence and proceeded to make certain highly

critical remarks concerning the testimony of Ms. Plaatjie as to the circumstances

in which she made the statement and rejected her evidence in this regard. He

ruled that the statement was admissible.

[41] Mr. Wessels then raised with first respondent that in his judgment in this

regard he had failed to deal with two specific issues which had been raised by

him in the course of argument, namely, that Exhibit W had been obtained under

the pretext that it would not be used without the consent of Ms. Plaatjie and that

there was no waiver of that right which attached to the making of the statement,

and, secondly, that Ms. Plaatjie was in fact regarded by the police official taking

the statement as a suspect and that there had been non-compliance with what

was required under those circumstances. First respondent’s failure to do so, so

applicant avers, contributed to her ultimate view that he was reluctant to declare

Exhibit W inadmissible because he was biased against her. In response Ms.

Brink on behalf of the State submitted that the issue of the consent of Ms. Plaatjie

for the use of her affidavit was irrelevant as was any alleged promise made to

her. She submitted that consent to use a statement had no part in a criminal trial

and that the right was not constitutionally protected. She submitted accordingly

that Exhibit W was admissible.

[42] First respondent explained his failure to deal with all the specific issues as

follows:

“I was tempted to get to the nitty gritties of this aspect, but being, the

temptation would lead to, the danger of following that route, would be to

give an impression, because I do not want at the end of the day to give a

perspective or to be perceived to be following, or taking this case to a

certain direction. Some of these issues will be detailed when the court is

18

passing the judgment in a proper, in the main trial, but what, today the

main objective of this judgment was just to show that, or to substantiate the

reasons why it has been admissible. Some of the aspects of course, might

not be dealt with here, but when the judgment in the main case is passed,

then there, they can be covered.”

[43] Thereafter the State case was closed whereupon an application was

brought in terms of section 174 of Act 51 of 1977 for the discharge of applicant.

In the course of his submissions in support of this application Mr. Wessels once

again raised the issue of Exhibit W and submitted that the State had failed to

discharge the onus pertaining to the admissibility thereof and that the court

should therefore revisit the issue. First respondent did not do so. In his judgment

on the recusal application and in his affidavit in response to the present review

application he denied that he was in any way biased against applicant. He states

that he carefully considered all submissions made to him throughout the course of

proceedings and that he has, and will continue to do so, brought an open and

impartial mind to bear on the issues before him.

[44] In my view there is nothing in the manner of first respondent’s conduct of

the proceedings on the issue of the admissibility of Exhibit W such as would give

rise to a perception of bias in the mind of a reasonable, objective and informed

person, even if it could be said that first respondent’s reasoning at times is open

to criticism, a matter on which it would not be appropriate to express an opinion.

In my view far from showing an “indefensible reluctance” to declare Exhibit W

inadmissible first respondent was clearly at pains carefully to consider the issue,

even if the result from time to time was not to applicant’s liking. At one stage he

even said to Mr. Wessels that he was “inviting your wisdom in this regard”. It is

clear from the record that his mind was considerably exercised by the issue. He

also took time to consider the submissions made to him so that, as he said, he

could do justice to the case and he was prepared, after further argument, to

reconsider his refusal to hold a trial-within-a-trial. This was hardly the conduct of

a biased judicial officer.

19

[45] Whether the submissions by Mr. Wessels that a trial-within-a-trial was

required were correct or not; and whether first respondent erred in at first

rejecting the application for a trial-within-a-trial to be held; and whether he

thereafter erred in declaring Exhibit W to be admissible despite what Mr. Wessels

submitted to him was clear evidence of a lack of consent by Ms. Plaatjie to the

use of her statement and a failure by the police properly to warn her as a suspect

prior to her making such statement, is not for this court to decide in this

application. Even if it is accepted for purposes of argument that first respondent

may have given wrong decisions on the law or the facts or that his reasons for his

decisions were lacking in some respects, those decisions were not so egregious

as to justify an inference that he made them because he was biased against

applicant. Compare Competition Commission v General Council for the Bar of

SA 2002 (6) SA 606 (SCA) at paragraph 16. It is important to bear in mind that

first respondent’s decisions with regard to Exhibit W are not attacked on the basis

that a gross irregularity vitiating the proceedings was committed but on the basis

that first respondent’s conduct of the trial evinced bias. In my view applicant’s

averments as to bias on this aspect cannot be sustained.

[46] Should the trial proceed and applicant in due course be convicted the

issue can properly be raised on appeal. In this regard what was stated in the

matter of Mendes and Another v Kitching N.O. and Another 1995 (2) SACR 634

(E) is relevant. In that matter it was contended on behalf of the accused that

certain evidence relating to a police trap was inadmissible and that if the issue as

to its admissibility was not decided at the outset, potential prejudice to the

accused would result as such evidence infringed their fundamental rights as

enshrined in the Constitution Act 2000 of 1993. The regional magistrate held that

he did not have the jurisdiction to pronounce on the constitutionality of rules of

evidence contained in the common law. On review it was held, per Kroon J,

Jennett J concurring, that the regional magistrate’s conclusion was wrong. The

headnote of the report, at 635 a – c, which correctly reflects what was stated in

the judgment, reads as follows:

“Held, further, as to the question whether the first respondent’s mistake of

law entitled the applicants to the order they sought, that where a

20

magistrate presiding over a trial has incorrectly applied the law, there was,

generally speaking, no room for a review, at least while the trial was in

progress.

Held, further, that the point would more properly be the subject of an

appeal: such an appeal would only arise if in the result a decision adverse

to the party aggrieved by the mistake of law was given. If no such adverse

decision was made, any appeal or review would be merely academic and

therefore impermissible.

Held, further, that in the present matter, a decision by the first respondent

to admit the evidence in question would not be appealable or reviewable if,

in the result, the applicants were nevertheless acquitted by the first

respondent. The appealability of an affirmative decision on the

admissibility of the evidence would accordingly only arise at the conclusion

of the trial and then only in the event of a conviction.”

JUDGMENT ON DISCHARGE

[47] First respondent was addressed at very considerable length by Mr.

Wessels in support of the application for a discharge. His address runs to over

100 pages of the transcript. In the course thereof he launched a scathing attack

on the credibility of the various State witnesses and submitted that the State

evidence was of so poor a calibre that it amounted in effect to no evidence at all.

With reference to S v Lubaxa 2001 (2) SACR 703 (SCA) he submitted that there

was, in the circumstances, no possibility of a conviction on any of the counts

other than if applicant entered the witness box and incriminated herself and that

applicant was accordingly entitled to her discharge.

[48] In his judgment first respondent made extensive reference to the relevant

principles governing an application for discharge in terms of section 174, and the

authorities pertaining thereto. He stated, inter alia, as follows:

“Both the defence and the State have gone extensively and analysing the

credibility of State witnesses. I am not going to dwell much on this aspect,

save to say I have looked carefully at the evidence of the State witnesses,

21

and my detailed analysis will be divulged in my judgment on the main

case. However, I am convinced that after looking at their evidence

collectively, I have come to a conclusion that it is not of such a poor quality

that it cannot safely be relied upon. Admittedly it has some, it has some

flaws, but it has not been reduced to no evidence. I further gave myself

time to interrogate the evidence both collectively and separately and I have

found that they are inevitably and inextricably intertwined. I am therefore

of the view that throwing water with the baby will do much harm than

justice.” (sic)

[49] In her affidavit applicant states as follows:

“I am extremely perturbed by the finding of Mr. Mpofu at the close of the

State’s case that despite the extensive analysis of the credibility of the

State witnesses by my counsel he is nevertheless convinced that after

looking at the evidence collectively, he has come to the conclusion that it is

not of such a poor quality that it cannot safely be relied upon. This finding,

pronounced at the close of the State’s case, leaves me with a clear

understanding that Mr. Mpofu will ultimately, despite submissions by my

counsel, rely on the evidence of the State witnesses and will therefore not

bring an impartial mind to bear on the adjudication of this case. Mr. Mpofu

has therefore disqualified himself to further sit as presiding officer in this

case.”

[50] Section 174 of Act 51 of 1977 provides as follows:

“If, at the close of the case for the prosecution at any trial, the court is of

the opinion that there is no evidence that the accused committed the

offence referred to in the charge or any offence of which he may be

convicted on the charge, it may return a verdict of not guilty.”

[51] In Hiemstra: Criminal Procedure the following is stated at 22 – 76:

22

“Section 174 creates an exception to the normal trial procedure, primarily

to relieve the trial court of the burden of persisting machine like with a futile

trial when it is clear that there cannot be a conviction. The underlying

purpose is to save time and effort, not to complicate the court’s task. The

working of the Section is simple and its meaning unambiguous. The court

is given the power to render there and then, at the closure of the case for

the prosecution, a judgment of not guilty. There is however a jurisdictional

prerequisite to be satisfied before the power arises in this manner: the

court must be of the view that there is no evidence upon which a conviction

can be based. Therefore, two related but distinguishable decisions have to

be made: is there a lack of evidence, and, if so, should discharge be

granted? The former entails mainly a clinical assessment of the evidential

value of the evidence; the latter requires sound judgement in the light of all

the circumstances of the particular case.”

[52] As was stated in S v Mpetha and Others 1983 (4) SA 262 (C) at 263H the

words “no evidence” mean no evidence on which a reasonable person acting

carefully might convict. Although credibility can be taken into account at this

stage it plays a limited role. In S v Mpetha supra the following was stated at 265

E – F:

“If a witness gives evidence which is relevant to the charges being

considered by the Court then that evidence can only be ignored if it is of

such poor quality that no reasonable person could possibly accept it. This

would really only be in the most exceptional case where the credibility of a

witness is so utterly destroyed that no part of his material evidence can

possibly be believed. Before credibility can play a role at all it is a very

high degree of untrustworthiness that has to be shown.”

[53] I cannot agree with the allegation by applicant that first respondent’s

statement that the evidence of the State witnesses is not of such a poor quality

that it cannot safely be relied upon creates a well founded apprehension that first

respondent will not bring an impartial mind to bear on the adjudication of the

case. First respondent’s statement in this regard, viewed in isolation and

23

divorced from its context, may be unfortunate. But it must, in my view, be seen in

the context of the judgment on the application for a discharge as a whole. In his

judgment first respondent was at pains to deal with the relevant authorities, hence

his statement that the evidence has “some flaws” but that it “has not been

reduced to no evidence”.

[54] It appears, somewhat ironically, that the genesis of first respondent’s

statement lies in the submission made to him by Mr. Wessels. In this regard he

cited what he termed as being Mr. Wessels’s “beautiful summary” of the law,

including his submission that “where the evidence of the State witnesses

implicating the accused is of such poor quality that it cannot safely be relied upon

and there is accordingly no credible evidence upon which a court acting carefully,

may convict, an application for discharge should be granted.”

[55] First respondent was clearly well aware of the role played by credibility at

this stage of the proceedings. It is clear in my view that he was expressing no

more than that in his opinion the State evidence was not of such poor quality that

no reasonable person could possibly accept it.

[56] In the circumstances I am satisfied that applicant’s apprehension of bias

on the part of first respondent is unfounded.

FAILURE BY STATE TO PROVIDE DEFENCE WITH COPIES OF ALL

RELEVANT INFORMATION BEFORE THE COMMENCEMENT OF THE TRIAL

[57] At the commencement of the trial Ms. Brink handed into court a bundle of

documents (Exhibit B) extracted from the police docket. It emerged during the

course of cross-examination of certain witnesses that Exhibit B did not contain

copies of all relevant documentation. On 25 August 2014 Mr. Wessels placed on

record that the State and the defence were agreed that Ms. Brink would call for

certain original files which related to counts 1 to 16. It was further stated that an

application might have to be brought to recall certain witnesses. After some

debate first respondent stated that the State and the defence should work

24

together to see to it that all necessary documentation was provided. First

respondent stated further as follows:

“So, the court, based on the fact that the court does not want, the purpose

of hearing a trial is not just to push everything to rush to an end, but to see

to it that justice is being administered. And to see to it that the accused

person is receiving a fair trial. So the court does not have to do things

according to its feelings, but has to see to it that justice is not only done but

is seen to be done. It is only on those grounds that the court will grant the

application by the defence to have the matter adjourned until tomorrow.

On the conditions that the defence is going to communicate every type of

document that it anticipates to use at a later stage and that the State would

provide the defence with every necessary document.”

[58] Thereafter certain documentation was obtained and the trial proceeded on

26 August 2014 with only three of the twenty nine witnesses who had already

testified being recalled for further cross-examination.

[59] It then emerged that certain other relevant documentation had not been

provided to the defence. On being addressed on this, first respondent reiterated

that he had made a ruling that the State provide all relevant documentation in its

possession and that he could not force the State to furnish documentation it did

not have in its possession. He stressed, however, that it was open to the defence

to bring an application to be placed in possession of relevant information

identified to be in the possession of a particular institution or person. He stated

further:

“But the State will not be allowed to bring now as information that is not

here in the documents that are before this court now, because that will be

tantamount to prosecution by ambush.”

[60] He added that he was concerned “about the developments that keep

mushrooming as the case goes on”; that “the State is now bordering to a place

25

where it can be, it is bordering to prosecute by ambush”; and that “the

constitutional rights of the accused are being threatened at this stage.”

[61] In the meantime Ms. Brink, who placed on record that she had made

everything in her possession available to the defence, requested the Special

Investigating Unit to furnish her with all documents pertaining to the entire

investigation into so-called “ghost Grade R practitioners.”

[62] Eventually, on 2 July 2015, before the close of the State case, boxes of

documents totalling 3669 folios (Exhibit AE) and consisting of in excess of 500

affidavits allegedly pertaining to the case including some additional affidavits of

witnesses who had already testified were produced by the State. First

respondent then granted applicant a postponement to 9 November 2015 to

enable the defence to peruse the documentation. As matters turned out no

application was brought to recall any of the witnesses who had already testified.

According to applicant, however, the information contained in the affidavits may

well have affected the nature of the cross-examination of certain witnesses and

would certainly have affected her preparation for trial and the conduct thereof.

There has been, she submits, no satisfactory explanation from the Special

Investigating Unit as to why these documents had not been handed to the police

and included in the docket, a copy of which would have been handed to the

defence. She alleges that in consequence her right to a fair trial has been

infringed.

[63] This issue was raised by Mr. Wessels at the close of the State case.

[64] In her application before the magistrate and in this application applicant

states:

“When my counsel raised this issue as a separate issue, at the close of the

State’s case with the court and submitted that the court should find that the

circumstances justified a conclusion that I did not have a fair trial, Mr.

Mpofu simply ignored these submissions by not even referring to it in

dismissing my application for a discharge. It is respectfully submitted that

26

the absence of any finding by Mr. Mpofu concerning the withholding of

relevant information to my severe prejudice, does not lend to a conclusion

that there was a proper and reasonable exercise of discretion by Mr.

Mpofu, because, in my respectful submission he is biased.”

[65] I assume that what applicant intends to convey by this somewhat

convoluted submission is that first respondent’s failure to deal with the issue is

indicative of bias on his part.

[66] In this regard first respondent stated only that:

“This is a matter that of deep involvement as such I have decided to deal

with it when I give judgment in the main case.” (sic)

[67] Mr. Wessels submitted that he had dealt with the import of the issue in

extenso and that some response by first respondent had been called for. He

submitted that “when first respondent, in his reserved judgment on the application

for a discharge, did not even mention this issue, I submit that the absolute dismay

and ultimate conclusion by the applicant that there was no proper and reasonable

exercise of discretion by first respondent because he is biased is justified. Even

more so when first respondent’s silence on this issue is considered in conjunction

with the other events/incidents mentioned by applicant.”

[68] In my view there is no merit in this submission. I fail to understand how the

fact that first respondent did not deal with the issue there and then and did not

criticise the conduct of the State justifies an inference that he was biased. He has

stated that he had decided to deal with it when he gives judgment at the end of

the trial. In my view in any event, as set out above, first respondent had already

at an earlier stage strongly criticised conduct which he described as bordering on

prosecution by ambush and threatening the constitutional rights of applicant.

There was no need for him to repeat these admonitions in the course of his

judgment on the application for a discharge.

27

[69] Applicant proceeds to state that the production by the State of the vast

number of documents just before the close of its case is a gross irregularity and a

serious infringement of her right to a fair trial. She submits that the only result

that can follow if the matter stands over to the end of the main case is that she

might incriminate herself should she enter the witness box. In this regard Ms.

Bakker submitted that applicant had failed to show that she was in any way

prejudiced by the later production of the documents more especially as applicant,

having been granted a lengthy postponement to peruse the documentation,

chose not to recall any of the witnesses for further re-examination.

[70] Once again it is necessary to point out that this application concerns one

matter and one matter only and that relates to the issue of bias and first

respondent’s refusal to recuse himself. It is accordingly neither desirable nor

necessary to deal with the issue relating to the alleged unfairness of the

proceedings.

THE FINDING BY FIRST RESPONDENT THAT THE COUNTS ARE

INEXTRICABLY INTERTWINED

[71] It is common cause that immediately after the close of the State case Ms.

Brink informed first respondent that in her view there was no evidence against

applicant in respect of counts 17, 21, 24, 30 and 31. First respondent accordingly

discharged applicant on these counts. Applicant then brought the application for

discharge in respect of the remaining counts. Ms. Brink conceded at that stage

that the State had also not discharged the onus upon it in respect of count 19 and

that applicant should be acquitted on that count. Despite this concession,

however, first respondent made no specific reference to this count. He refused

the application for a discharge as a whole, stating that in his view the various

counts were inextricably intertwined.

[72] Applicant submits that neither the defence nor the State had suggested

that any of the counts were intertwined when the discharge of the other five

similar counts were granted. She submits that the refusal by first respondent to

discharge her on count 19 leaves her “with the apprehension that first

28

respondent’s mind is not open to persuasion by concessions and/or submissions”

and that he was therefore biased.

[73] In my view these submissions cannot be upheld. If first respondent was

biased as alleged in refusing to discharge applicant on count 19 then the question

inevitably arises as to why he granted the discharge on the other five similar

counts which were conceded by the State. Clearly in regard to those counts his

mind was open “to persuasion by concessions.” It may well be that first

respondent erred in finding that the counts were intertwined and erred in not

granting a discharge on count 19 but such an error in the course of a lengthy trial

is not, in my view, in any way suggestive of bias.

CONCLUSION

[74] In S v Dube and Others supra the following was stated at paragraph 7:

“Where the claimed disqualification is based on a reasonable

apprehension, the court has to make a normative evaluation of the facts to

determine whether a reasonable person faced with the same facts would

entertain the apprehension. The enquiry involves a value judgment of the

court applying prevailing morality and common sense.”

[75] In my view, on an application of these principles and bearing in mind the

presumption of impartiality and the consequent formidable onus on applicant,

none of the alleged manifestations of bias viewed either singularly or collectively

would give rise to a reasonable apprehension of bias on the part of a reasonable,

objective and informed person.

[76] In the circumstances the application for a review of first respondent’s

refusal to recuse himself falls to be dismissed. Counsel were agreed that in the

event of the application being dismissed each of the parties should bear their own

costs.

[77] Accordingly the following order will issue:

29

1. The application is dismissed.

2. Each of the parties shall bear their own costs.

_________________

J.D. PICKERING JUDGE OF THE HIGH COURT I agree,

_________________

G.H. BLOEM JUDGE OF THE HIGH COURT Appearing on behalf of Applicant: Adv. Wessels

Instructed by: McCallum Attorneys, Mr. McCallum

Appearing on behalf of First Respondent: Adv. Beyleveld S.C.

Instructed by: Enzo Meyer Attorneys, Mr. Basson

Appearing on behalf of Second Respondent: Adv. H. Bakker

Instructed by: Enzo Meyer Attorneys, Mr. Basson