S v Basson

• Jurisdiction: South Africa
• Judgment Date: 09 September 2005
• Citation: 2007 (1) SACR 566 (CC)

S v Basson
2007 (1) SACR 566 (CC)

2007 (1) SACR p566

Citation	2007 (1) SACR 566 (CC)
Case No	CCT 30/2003
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
Heard	February 21-24, 2005; February 25, 2005
Judgment	September 9, 2005

Flynote : Sleutelwoorde B

Trial — Presiding officer — Recusal of — State alleging bias on basis of remarks and incorrect legal rulings made by trial Judge — In long criminal trials judge might at times make remarks that were inappropriate or that displayed irritation towards counsel — Complainant having to show that remarks of such number or quality as to go beyond mere irritation on part of judge and establish pattern of conduct sufficient to dislodge presumption of impartiality and replace it with reasonable apprehension of bias — Not inappropriate for judge to express views about certain aspects of evidence — Fact that these views might be incorrect not sufficient to ground claim of D bias — Errors of law also inevitable in long trials, and to assert that these were evidence of bias was to impose counsel of perfection on judicial officers — Such an approach at odds with constitutional order — As to mistakes of fact, necessary to establish that mistake so unreasonable on the record that it must have arisen from bias or given rise to reasonable apprehension thereof — No specific ruling or finding of Judge, nor all E impugned rulings and findings viewed cumulatively, either showing actual bias or giving rise to reasonable apprehension of bias on part of trial Judge.

Evidence — Admissibility — Bail record — Trial Court excluding bail record on basis that prosecutor had unfairly withheld documents from accused at bail hearing and that extensive F cross-examination of accused had been intended to provide platform for cross-examination at trial — Test on appeal not whether this decision correct or not, but whether trial Court exercising its discretion judicially — While different Court might have come to different conclusion, it could not be said that trial Court had not exercised its discretion judicially — Accordingly, not appropriate for Court to interfere with trial Court's decision. G

Indictment and charge — Objection to charge — Charges not disclosing offence — Six charges of conspiracy to commit offence in a foreign country in contravention of s 18(2) of Riotous Assemblies Act 17 of 1956 — Trial Court holding that conspiracy to commit an offence outside borders of Republic not contravening s 18(2) and H quashing charges — While, as general proposition, our courts declining to exercise jurisdiction over persons who had committed crimes in other countries, exception to this rule created by existence of real and substantial link between offence and this country — Nature of offences and connection between Namibia and South Africa at time of I offences leaving no doubt that there was real and substantial link between this country and conspiracy to commit murders in Namibia — Furthermore, conspiracy within South African Defence Force involving high-ranking officers to murder detainees in custody of army, and to commit offences such as those in quashed charges, in territory then being administered by South Africa, having grave implications for South . J

2007 (1) SACR p567

Africa's international standing, and capable of being made subject of an indictment in South Africa — Counts as A formulated indeed disclosing offence and trial Court erring in quashing them.

Appeal — Reservation of question of law — Application for in terms of s 319(1) of Criminal Procedure Act 51 of 1977 — When possible — Nothing in language of s 319 to suggest that State can only request reservation of question of law directed at conviction or acquittal of accused — Section 319(2) B strongly suggesting that intention was to permit appeal against any order upholding or dismissing objection by way of reservation — Long-standing authority having effect not only of preventing State from instituting criminal proceedings where Court quashing indictment on grounds that it did not disclose offence, but also taking away right of State to appeal decision upholding an C exception to its indictment for any other reason — Such interpretation of s 319 inconsistent with right of State to institute criminal proceedings, and thus with Constitution — Also inconsistent with language and purpose of section itself — Section 319 to be construed so as to allow State or accused to appeal against order upholding or dismissing objection to charge. D

Headnote : Kopnota

The respondent had been charged in the High Court on 67 counts, including murder, fraud and conspiracy to commit various offences, the majority of which arose from his alleged activities while serving as a member of a covert division of the South African Defence Force prior to 1994. In April 2002 he was acquitted on all counts, following which the State applied for the reservation of three questions of law. These E related, first, to the alleged bias of the trial Judge and his failure to recuse himself; secondly, to the trial Judge's refusal to admit the respondent's bail record into evidence; and, thirdly, to the quashing of certain charges at the outset of the trial. The trial Court reserved the first two questions conditionally and refused to reserve the third. The State then petitioned the Supreme Court of Appeal (SCA) F for the reservation of the third question. The SCA found that the question of whether a judge was biased gave rise to a question of fact, not of law, and could not be reserved under the provisions of s 319 of the Criminal Procedure Act 51 of 1977. The same finding was made regarding the question of the admissibility of the bail record. Both questions were accordingly struck from the roll. As to the question concerning the quashing of charges, the State's petition had been G procedurally defective and the SCA refused to condone its non-compliance with the Rules. Having failed, therefore, before the SCA on all three questions, the State sought leave from the Constitutional Court (CC) to appeal the SCA's decision. At a preliminary hearing in November 2003, the CC held that all three issues concerned constitutional issues, but that it was premature to deal with the H second requirement for leave to appeal, namely whether it was in the interests of justice for leave to be granted. Full argument on this question was then heard, culminating in the present judgment.

The bias of the trial Judge

In its preliminary judgment the Court had held that the question of whether the conduct of a judicial officer gave rise to a reasonable I apprehension of bias was a question of law. This left the following four questions for consideration: whether, by delaying its application to reserve the question of law relating to recusal, the State was barred from seeking the reservation of the question (the application for recusal had been dismissed by the trial Court in February 2000 but the State applied for the reservation of this question J

2007 (1) SACR p568

only at the end of the trial in April 2002); whether the recusal issue was to be considered on the trial record until February A 2000, when the recusal application had been made, or on the full record; if it was to be considered on the record only up to February 2000, whether the State could rely on events thereafter to establish the existence of bias in February 2000; and whether, if the State succeeded on the question of bias, it could be said that the accused had been in jeopardy of conviction which would preclude his retrial B under the rule against double jeopardy. With regard to the second and third of these questions, the Court assumed that it was entitled to consider allegations of bias related to events that had occurred both before February 2000 and after that date, up to the conclusion of the trial. The facts and allegations upon which the State relied for its contention of bias could be broadly divided into two categories, the first of which consisted of nine separate remarks and interventions C made by the trial Judge which, it was argued, gave rise to a reasonable apprehension of bias. There were seven remarks or interventions which, it was contended, suggested that the Judge was hostile to the State, and two which showed that he had prejudged certain issues. The second category of complaints raised by the State consisted of eight incidents of supposedly incorrect legal rulings, refusals to exercise a D discretion in favour of the State, and factual findings made during the course of the trial or in the judgment which, the State averred, were not only wrong, but were so unreasonable and one-sided as to give rise to a reasonable apprehension of bias.

Held, regarding the legal test for bias, that access to courts that functioned fairly and in public was a basic right under s 34 of the Constitution of the Republic of South Africa, 1996, and E that the impartiality of judicial officers was an essential element of a constitutional democracy, which was closely linked to the independence of courts. Where criminal trials were concerned, the requirement of impartiality was also closely linked to the right of an accused person to a fair trial, which was guaranteed in s 35(3) of the Constitution. In addition, the impartiality of a judicial officer, and the perception thereof, were crucial to the administration of justice. F (Paragraphs [23] - [24], [26] and [27] at 588h - j and 589e - 590d, paraphrased.)

Held, further, that there were two different approaches for determining the appearance of bias. The first focused on whether or not there was a real likelihood of bias, while the second concerned the existence or otherwise of a reasonable...