S v Bruinders

• Jurisdiction: South Africa
• Citation: 2012 (1) SACR 25 (WCC)

S v Bruinders
2012 (1) SACR 25 (WCC)

2012 (1) SACR p25

Citation	2012 (1) SACR 25 (WCC)
Case No	A 400/2009
Court	Western Cape High Court, Cape Town
Judge	Zondi J and Sher AJ
Heard	September 17, 2010
Judgment	June 15, 2011
Counsel	JJ Thaysen for the appellant, instructed by the Legal Aid Board.; E Erasmus for the State.

Flynote : Sleutelwoorde

Trial — Irregularity in — Reasonable apprehension of bias — Where presiding G officer previously presided over bail application of accused — Nature of bail proceedings such that court may become privy to information which could subconsciously prejudice accused in mind of court — Public's perception of such possibility giving rise to reasonable apprehension of bias — In such circumstances, presiding officers should ordinarily recuse themselves to avoid proceedings later being challenged on basis of reasonable apprehension H of bias — In casu, presiding magistrate, having previously presided over bail application of appellant, aware, inter alia, of his previous convictions during subsequent trial — Reasonable, objective and informed observer would, in such circumstances, reasonably have apprehended that magistrate not bringing impartial mind to bear upon appellant's case — Appeal upheld and conviction set aside. I

Headnote : Kopnota

The issue at hand is whether the magistrate's prior hearing of the appellant's bail application precluded her from subsequently presiding over the appellant's trial on the grounds of a reasonable apprehension of bias. To answer this question it is necessary to consider the nature of bail proceedings in our law. The inquiry which a court is required to undertake in bail proceedings may result in the court becoming privy to information about the accused, or the J

2012 (1) SACR p26

A offences with which he/she has been charged, that could result in the court adopting a biased approach even if it is not conscious of doing so. Judicial officers who have presided over such bail applications should ordinarily recuse themselves from presiding over the subsequent trial of the accused to avoid the complications of complaints of reasonable apprehension of bias being raised. After all, even if there were no actual bias on the part of the B presiding officer and the later trial is conducted with scrupulous adherence to the prescripts of fairness and due process, it is the public's perception of the possibility of unconscious bias that is the key. (Paragraphs [57], [75] – [78], [79] and [81] at 41c – d, 44g – 45g and 45i, paraphrased.)

In the present case, had the notional reasonable and objective observer been informed that the magistrate in the appellant's criminal trial had presided over his bail application some three months earlier, at which time details of C his numerous previous convictions were revealed together with details of how he had allegedly committed one of the offences with which he was charged, and the investigating officer had also testified that the appellant had a tendency to commit crimes involving violence and dishonesty, such an observer would have had grave concerns about whether the appellant D would get a fair trial, but would instead reasonably apprehend that the magistrate would not bring an impartial mind to bear upon the appellant's case. In the result, by failing to recuse herself from hearing the appellant's matter the magistrate breached the appellant's constitutional right to a fair trial. The effect of this irregularity is that the proceedings are vitiated for apparent bias and the appellant's conviction and sentence cannot be allowed to stand. (Paragraphs [108] – [110] at 52e – i, paraphrased.)

Annotations:

Cases cited

Reported cases

Southern Africa

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC): considered

BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A): considered F

Council of Review, South African Defence Force, and Others v Mönnig and Others 1992 (3) SA 482 (A): dictum at 495B – C applied

FS v JJ and Another 2011 (3) SA 126 (SCA): considered

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A): G applied

Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA): considered and distinguished

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) (1999 (7) BCLR 725): considered

Rex v Dominic 1913 TPD 582: applied H

S v Collier 1995 (2) SACR 648 (C): considered

S v Dube and Others 2009 (2) SACR 99 (SCA): considered

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252): dictum in para [11] applied

S v Hlati 2000 (2) SACR 325 (N) (2000 (8) BCLR 921): criticised and not followed I

S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423): considered

S v Le Grange and Others 2009 (2) SA 434 (SCA): considered and dictum in paras [30] and [32] applied

S v Moodie 1962 (1) SA 587 (A): applied

S v Naidoo 1962 (4) SA 348 (A): dictum at 354D – F applied J

2012 (1) SACR p27

S v Phiri 2005 (2) SACR 476 (T): dictum in para [15] applied A

S v Roberts 1999 (2) SACR 243 (SCA) (1999 (4) SA 915; [1999] 4 All SA 285): dictum in para [26] applied

S v Shackell 2001 (2) SACR 185 (SCA) (2001 (4) SA 1): considered

S v Stevens 1961 (3) SA 518 (C): dictum at 518H – 519C applied

S v Thusi and Others 2000 (4) BCLR 433 (N): criticised and not followed B

Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (2) SACR 222 (CC) (2002 (5) SA 246; 2002 (8) BCLR 810): considered.

Unreported cases

S v Majikazana (SCA case No 559/2009, 6 March 2010): distinguished. C

Australia

Johnson v Johnson [2000] HCA 48 ((2000) 201 CLR 488): considered

Re Ebner: Ebner v Official Trustees in Bankruptcy (1999) 161 ALR 559 (Aust Fed Ct): considered

Smits v Roach [2006] HCA 36 ((2006) 228 ALR 262; (2006) 80 ALJR 1309): considered D

Webb v R (1994) 181 CLR 41 (Aust HC): considered.

Canada

Committee for Justice and Liberty et al v National Energy Board (1976) 68 DLR (3d) 716: considered

R v Lippé [1991] 2 SCR 114: considered E

R v S (RD) [1997] 3 SCR 484 ((1997) 118 CCC (3d) 353 (SCC); 151 DLR (4th) 193): dictum in para [91] applied

Wewaykum Indian Band v Canada [2003] 2 SCR 259: considered.

England

Davidson v Scottish Ministers [2004] UKHRR 1079 ([2004] UKHL 34): F considered

Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759: considered

Helow v Secretary of State for the Home Department and Another (Scotland) [2009] 2 All ER 1031 (HL) ([2001] UKHL 62): considered

Lawal v Northern Spirit Ltd [2004] 1 All ER 187 (HL) ([2003] UKHL 35): considered G

Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 All ER 65 (CA) ([1999] EWCA civ 3004): considered

Metropolitan Properties Co (FGC) Ltd v Lannon and Others [1968] 3 All ER 304 (CA) ([1969] 1 QB 577): considered and dictum at 310A – D applied H

Panton and Panton v Minister of Finance and Another [2001] UKPC 33: considered

Porter and Another v Magill [2002] 1 All ER 465 (HL) ([2001] UKHL 67): considered

R v Abdroikov and Others [2008] 1 All ER 315 (HL) ([2007] UKHL 37): applied I

R v Barnsley County Borough Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association and Another [1960] 2 All ER 703 (CA): considered

R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL) ([1999] 2 WLR 272): considered

R v Camborne Justices: Ex parte Pearce [1954] 2 All ER 850 (QB): considered J

2012 (1) SACR p28

R v Gough [1993] 2 All ER 724 (HL) ([1993] AC 646): considered A

R v Liverpool City Justices, Ex p Topping [1983] 1 All ER 490 (QB): considered

R v Spencer and Others; R v Smails and Others [1986] 2 All ER 928 (HL) ([1987] AC 128): considered

R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 ([1923] All ER Rep 233): B considered.

European Union

De Carhalvo v Portugal [1994] ECHR 15: considered

De Cubber v Belgium [1984] ECHR 14 ([1984] 7 EHRR 236): considered

Hauschildt v Denmark (1990) 12 EHRR 266 ([1989] ECHR 7: considered C

McGonnell v United Kingdom (2000) 30 EHRR 289: considered

Nortier v The Netherlands (1993) 16 EHRR 38 ([1993] ECHR 24): considered

Padovani v Italy [1993] ECHR 12: considered

Piersack v Belgium (1982) 5 EHRR 169 ([1982] ECHR 6): considered.

Scotland D

Bradford v McLeod 1986 SLT 244: considered

Doherty v McGlennan 1997 SLT 444: considered.

Case Information

Appeal from convictions in a magistrates' court. The facts appear from E the reasons for judgment.

JJ Thaysen for the appellant, instructed by the Legal Aid Board.

E Erasmus for the State.

Cur adv vult.

Postea (June 15). F

Judgment

Sher AJ:

G A. Introduction

[1] That famous wit, Oscar Wilde, is reputed to have once said [1] that it is only shallow people who do not judge by appearances. Appearances are at issue in this matter. Shallow or not, we are required to judge them. They relate to an alleged perception of bias.

H [2] The appellant was arraigned before the magistrate of Mossel Bay on a number of charges. These included two charges of robbery (one aggravated), a charge of malicious damage to property and a charge of assault with intent to do grievous bodily harm.

[3] The appellant pleaded not guilty to all these charges. After hearing I the evidence of a number of witnesses, including the complainants on each of the charges, and the appellant himself, the magistrate convicted him on the two robbery charges (counts 1 and 4), and the charge of assault with intent to do grievous bodily harm (count 3) and acquitted

2012 (1) SACR p29

Sher AJ

him on the charge of malicious damage to property (count 2). She A ...