S v Dube and Others

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Lewis JA, Cachalia JA, Snyders JA and Mhlantla JA
• Judgment Date: 30 March 2009
• Citation: 2009 (2) SACR 99 (SCA)
• Docket Number: 523/07
• Hearing Date: 13 March 2009
• Counsel: PI Shapiro for the appellants. GS Maema for the State.
• Court: Supreme Court of Appeal

Mhlantla JA:

[1] On 26 March 2002 at approximately 09:15 the First National Bank I in Koster was robbed of R119 000 by four armed men. The appellants were subsequently arrested as suspects and charged in the regional court, Rustenburg, with one count each of robbery with aggravating circumstances. They were convicted and sentenced to 16 years' imprisonment each. Their appeal to the Bophuthatswana High Court, before J

Mhlantla JA

A Mogoeng JP and Gura J against both conviction and sentence was based on several grounds, including alleged irregularities in the proceedings, and whether the identity of the appellants had been proved. The appeal was dismissed on all bases. Mr Dube, the first appellant has since died. The appeal to this court is with the leave of the court a quo.

B [2] This appeal is based on a special entry relating to an alleged irregularity in the court a quo, in terms of s 317 of the Criminal Procedure Act 51 of 1977, as well as on the merits. Only the issue relating to the special entry was argued before us.

C [3] Accordingly this judgment deals only with that issue - whether the Judge President should have recused himself mero motu because his wife, a State advocate, represented the State in the appeal before the court; and if so, whether his failure to recuse himself constituted an irregularity which vitiated the appeal proceedings. In answering these questions it is necessary to sketch briefly the background events leading to the application D for a special entry.

[4] According to counsel for the appellants, he and the correspondent attorney learnt on the day of the appeal hearing that the Judge President would be one of the judges presiding over the appeal. At that stage, counsel was aware that Mrs Mogoeng, the Judge President's wife, was E arguing the appeal on behalf of the State. The appellants were not in court during the hearing. Their counsel did not foresee any problems and never considered the possibility of asking the Judge President to recuse himself on the basis that his wife was representing the State. He did not, at the time of arguing, believe that it was necessary to request a F recusal because he had been involved previously in a full bench appeal presided over by Judge President Mogoeng and at which Mrs Mogoeng represented the State - S v Baletseng 2005 (2) SACR 28 (B). That appeal was decided in favour of the appellants.

[5] After the appeal was dismissed in the present matter counsel met the G appellants in prison to discuss the judgment and outcome with them. It was at that stage that the appellants enquired about the similarity of the surnames between that of the Judge President and the State advocate. Counsel thereupon informed them that the two were in fact husband and wife. The appellants were not comfortable with this revelation. This H eventually led to the application for a special entry on the basis that the appellants had a perception of bias on the part of the Judge President. The application for a special entry was granted by the full bench.

[6] The test applicable to determine whether a judicial officer is disqualified from hearing a case by reason of a reasonable apprehension of bias I was enunciated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others. [1] In that case the Constitutional Court said:

Mhlantla JA

'It follows from the foregoing that the correct approach to this application A for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. B The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They C must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable...