Case Review: Criminal Procedure

• Jurisdiction: South Africa
• Pages: 88-106
• Date: 16 August 2019
• Author: Michael Cowling
• Citation: (2005) 18 SACJ 88
• Published date: 16 August 2019

88 SACJ • (2005) 1

Criminal Procedure

MICHAEL COWLING

University of KwaZulu-Natal

Appeal –– by the state –– question of law

Section 319(1) of the Criminal Procedure Act 1977 provides for a High

Court to reserve any question of law for the consideration of the Supreme

Court of Appeal. This can be done either by way of application by the

prosecutor or the accused or mero motu. In S v Basson (2000) 3 All SA

(2005) 18 SACJ 88

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Recent cases 89

59 (T) the trial court reserved the question whether the presiding judge

at the trial should have recused himself. The Supreme Court of Appeal

determined that the issue of recusal was a question of fact and not law

and hence dismissed the case. (See S v Basson 2003 (2) SACR 373 (SCA)).

The state then further appealed by way of application for special leave

to the Constitutional Court where the issue of recusal was regarded as a

‘constitutional matter’ thereby conferring jur isdiction on the Constitutional

Court (S v Basson 2004 (1) SACR 285 (CC) at 299). It therefore became

necessary for the court to distinguish between questions of fact and law.

This is an important issue because, unlike the position of the accused,

the state’s right to appeal against any decision of a criminal court is

restricted. This is obviously in order to protect accused persons from the

state (with all the resources at its disposal) utilising an extensive appeal

procedure in order to unnecessarily prolong the accused’s exposure to

the criminal justice process. Thus the Constitutional Court determined

that the correctness of the Supreme Court of Appeal’s conclusion that the

question of recusal of a presiding judicial off‌i cer constituted a question

of fact was an ‘insuperable bar to the State’s application ...’. (at 306e).

Counsel for the state argued that a distinction could be drawn between

those decisions that require the application of a legal standard and those

that do not. On this basis it was contended that, since a recusal decision

requires the application of a legal standard (in the form of the test for

bias) it therefore raises a question of law as opposed to fact. Counsel for

the accused, on the other hand, submitted that the drawing of the types of

inferences from the facts that was required when applying the test for bias

raised only factual issues. Reliance was placed on cases such as Magmoed

v Janse van Rensburg 1993 (1) SACR 67 (A) and S v Coetzee 1977 (4)

SA 539 (A) where it was contended that once a legal standard for the

way in which a relevant determination has been settled, the application

of that standard to particular facts raises a question of fact and not law.

It hence became necessary for the court to concern itself with

these arguments in the context of the refusal of the presiding judge in

the High Court to recuse himself. At the outset the court determined

that a ‘f‌i nding that the conduct of a Judge in fact created a suspicion

in the mind of a particular person that the Judge concerned was or

was not biased may well be one of fact’ (at 309e). However, it was

further held that it did not make any difference whether this f‌i nding

is arrived at by inference (ibid). This is because the issue at this stage

relates purely and simply to the state of mind of a particular person.

However, the court then went on to hold that ‘a conclusion in relation

to the suspicion created in the mind of a hypothetical reasonable

litigant goes beyond a mere inference of fact’ (at 309e–f). In the f‌i rst

place it entails a determination of the facts. In the case of bias the

facts would take the form of the behaviour of the presiding judge such

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