Recent Case: Criminal Procedure

• Jurisdiction: South Africa
• Citation: (2017) 30 SACJ 256
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Managay Reddi
• Pages: 256-269

Criminal Procedure

MANAGAY REDDI

University of KwaZulu-Natal, Durban

1 Irregularities in the trial

The appellant i n S v Longano 2017 (1) SACR 380 (KZP) had been convicted

in the high court of the murder of h is live-in partner and sentenced to

15 years’ imprisonment. In his appeal against bot h the conviction and

sentence, the appellant contended that the trial judge had commit ted a

series of irregular ities so gross that they resulted i n a failure of justice

and therefore vitiated the trial proceedi ngs. Included in the grounds

of appeal were the following three issues which are the focus of thi s

discussion: (i) the trial judge’s refusal to recuse herself and the cour t’s

failure to furnish rea sons in its judgment for this decision; (ii) the court

calling a witness (a psychologist named Willows) in terms of s 186 of

the Crimina l Procedure Act 51 of 1977, hereafter ‘the Act’, without

rst inviting submissions from the pa rties to address the cour t on the

regularity of the procedu re; and (iii) the court’s ruling to allow the

state to cross-exami ne the witness (Willows) called in terms of s 186.

The facts giving rise to the application for the recusa l of the trial

judge were that the judge had had sight of a report prepared by the

expert witness for the state, Mr Wil lows, who was thereafter not called

by the state to testify. The contention of the appellant was that the

trial judge had improperly failed to recuse hersel f despite having been

in possession of evidentiary mater ial, which had not been admitted

into the trial duri ng the proceedings. The argument was th at the

given circumstances establi shed a reasonable apprehension of bias

that the trial judge’s imparti ality may have been compromised by the

information which she had had but which had not been presented

before the court.

The guidelines contained i n the judgment of the Constitutional Court

in President of the Republic of South Africa v South Afr ican Rugby and

Football Union (SARFU) 1999 (4) SA 147 (CC) is instructive in dening

the test of ‘apprehension of bias.’ According to the Constitutional

Court, the test is whether ‘a reasonable, objective and in formed person’

would, on the right facts reasonably fear that ‘the Judge has not or wil l

RECENT CASES

256

(2017) 30 SACJ 256

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