R v Silber

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Hoexter JA, and Fagan JA
• Judgment Date: 21 March 1952
• Citation: 1952 (2) SA 475 (A)
• Hearing Date: 17 March 1952
• Court: Appellate Division

H Schreiner JA:

The appellant was summarily convicted by a magistrate of contempt of court committed in facie curiae and was sentenced to a fine of £10 or fourteen days' imprisonment His appeal to the Transvaal Provincial Division was dismissed but he was given leave to appeal to this Court

Schreiner JA

Then, your Worship, Mr. Stoltz

The appellant, who states that he is an attorney of nearly twentyfive years' standing and that for many years he has appeared almost daily in court, was defending one Hopf in the magistrate's court, Pretoria, in September, 1951. There had been a preparatory examination lasting fifteen days and thereafter the case had been remitted for trial in the A magistrate's court. It was called before the magistrate who had presided at the preparatory examination, but the appellant, who had represented Hopf at the preparatory examination and, at its conclusion, had thanked the magistrate for his 'great courtesy and patience', did not request that the trial should take place before another magistrate. B The trial proceeded and on the 15th day, while the Crown's evidence was still being led, a witness, Pienaar, was called to give evidence identifying the transcripts of a record, made by a sound recording instrument, of a conversation between the witness and the accused, Hopf. The appellant objected to the witness being asked to look at and C identify the transcripts and argument ensued, after which the magistrate ruled that the witness might look at the transcripts.

The record of the trial then proceeds:

'Mr. Silber: I have then to make a further address to the court. Your Worship, what I am about to say I do not like saying but it is my duty to say so and if I have to fail in doing my duty then I D would much rather not take part in the case. The defence has gained an impression from your Worship's rulings and from the court's attitude towards the defence, of bias. I do not say that your Worship is consciously biased, but perhaps having read the depositions at the preparatory examination, the defence, I speak for my learned junior and the accused, seem to think that there is a bias, and decided cases lay down that where there is an E impression on reasonable grounds, it is the court's duty to recuse itself. Now I want to state on what grounds I base my statement. In the first place, when there was an application to amend the indictment I objected on the ground that the prosecution did not show that there was error in the indictment and had not asked on those grounds. Your Worship then asked the prosecutor, are you saying this because of error. The prosecutor F himself did not bring forward that there was an error in the indictment, but it was put to him by the court.

Then an application was made to recall Mr. Stoltz . . .

Court: That was after the court had referred to the section.

Mr. Silber: . . . without any reason being given. I objected, that no recall can take place unless it is shown that this is in the G interests of justice. Again your Worship asked the prosecutor whether it is not in the interests of justice. Then your Worship, I think I have objected with the greatest earnestness and all the ability I have to the recordings. Your Worship has overruled every one of them without giving any reasons for rejecting my most earnest arguments or for overruling my submissions based on decided cases. Your Worship has given every H ruling in this case up to now, against the defence. Every objection against the inadmissibility of evidence has been overruled.

Then, your Worship, Mr. Stoltz was asked by my learned friend to state what was on the dictaphones and your Worship allowed that. I objected to Mr. Stoltz saying what he heard on the dictaphones, the contents, and your Worship intimated that he was allowed.

The questions put to the witnesses in each case leads the defence to think that your Worship has formed an opinion in this matter, adverse to the defence. Your Worship I would like to say that I have the greatest respect for the integrity and honesty of the court and rather than attack such a thing, I would withdraw from the case, but it is an impression that the

Schreiner JA

defence has gained from the court's attitude. I do not say that the court is not fair because I have heard of your Worship's reputation as an impartial and conscientious judicial officer, but the attitude of the court has been one which makes the defence think, and I may say members of the public, that the court has a bias against the defence. Here again we have an example of that, an objection based on a well-known legal principle, a witness should not be allowed to have a statement in front A of him of his conversation. Your Worship overruled my objection without giving any reason. With regret I have to say that members of the public have written to me and spoken to me. I got a letter only this morning that the impression the defence has, is shared by them. I refer to a case of Slade v Pretoria . . . 1943 T.P.D. at 246 - in that case it is laid down that if there is an impression, and it need not exactly be B a bias, but if there is an impression of bias, it is the duty of the court to recuse itself. Slade's case says as follows:

'The test of judicial bias...