S v Dube and Others

• Jurisdiction: South Africa

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

2009 (2) SACR p99

Citation	2009 (2) SACR 99 (SCA)
Case No	523/07
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Lewis JA, Cachalia JA, Snyders JA and Mhlantla JA
Heard	March 13, 2009
Judgment	March 30, 2009
Counsel	PI Shapiro for the appellants.; GS Maema for the State.

Flynote : Sleutelwoorde

Trial — Irregularity in — What constitutes — Presiding judge in appeal hearing H married to counsel for State — Reasonable apprehension of bias — Proceedings tainted regardless of fact that presiding judge having heard matter with another judge — No rule that in every case where judge related to legal representative, he or she disqualified from sitting — Each case to be evaluated according to its circumstances and in light of established principles — Appeal remitted for rehearing before differently constituted I bench.

2009 (2) SACR p100

A Trial — Presiding officer — Recusal of — Judge married to State's legal representative — Reasonable perception of bias, though no actual bias evident — Where judge having relationship with party or legal representative appearing before him or her, judge to consider degree of intimacy of relationship — Greater degree of intimacy, greater need for recusal — Any doubt to be resolved in favour of recusal — Matter remitted for rehearing B before differently constituted bench.

Headnote : Kopnota

Three men were convicted in a regional court on a count of robbery with aggravating circumstances, and each sentenced to 16 years' imprisonment. Following the dismissal of their appeal to the High Court, the appellants C successfully applied for a special entry to be made on the record. The special entry related to an alleged irregularity occasioned by the fact that the judge who had presided at the appeal hearing was the husband of the advocate who had argued it on behalf of the State.

Held, that the impartial adjudication of legal disputes was a cornerstone of the legal system. Judicial officers were to conduct trials open-mindedly, impartially D and fairly, and such conduct must be manifest to all, especially the accused. Not only actual bias, but the reasonable perception of bias, disqualified a judicial officer from presiding over proceedings. This disqualification was so complete that continuing to preside after recusal should have occurred rendered the proceedings a nullity. (Paragraphs [7] and [8] E at 103 d–g.)

Held, further, that in general a judicial officer must not sit in a case where he or she was aware of the existence of a factor which might give rise to an apprehension of bias. The rationale for the rule was the principle that one could not be a judge in one's own cause. Any doubt was to be resolved in favour of recusal. In situations where a judge had a relationship with a party F or a legal representative appearing before him or her, it was always appropriate for the judge to consider the degree of intimacy of the relationship; the greater the degree, the greater the need for recusal. Where it was difficult to avoid having closely connected people working in a given matter it would be preferable to bring in other judicial officers or legal representatives from different jurisdictions. If this was not feasible, the G relationship must be brought to the attention of the parties and their consent canvassed before commencement of the hearing. If consent was given, it must be entered into the record. (Paragraphs [13]–[15] at 104i–105 e.)

Held, further, that it was the litigant, not counsel, who must entertain a H reasonable apprehension of bias in order for the disqualification to be sustained. While it was so that the appellants' counsel had been aware of the judge's relationship to the State advocate, the appellants themselves had learnt of it only when the result of the appeal had been conveyed to them. Consequently, their counsel's lack of objection at the appeal hearing itself was irrelevant. There was also no merit in the argument that the appellants' I apprehension of bias would have been justified only if the judge had been sitting alone. The proceedings had been tainted regardless of the fact that he had heard the matter with another judge. A reasonable litigant would have been justified in entertaining a reasonable perception of bias; however, this did not mean that any actual bias had been established. Furthermore, it could not be laid down as a rule that in every case where the judge was J related to one of the legal representatives, he or she would be disqualified

2009 (2) SACR p101

from sitting. Each case was to be evaluated according to its circumstances A and in light of the established principles. (Paragraphs [16]–[19] at 105 f–106 g.)

Special entry upheld. Order of court a quo set aside and matter remitted to High Court for hearing before a differently constituted full bench.

Annotations:

Cases cited

Reported cases

Southern Africa

B 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): dictum at para [48] applied C

S v Baletseng 2005 (2) SACR 28 (B): referred to

S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620): referred to

S v Roberts 1999 (2) SACR 243 (SCA) (1999 (4) SA 915): referred to

S v Sharp 2002 (1) SACR 360 (Ck): compared

SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 D (3) SA 705 (CC) (2000 (8) BCLR 886): referred to

Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA): referred to.

England

Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 All ER 65 E (CA): referred to

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

R v Sussex Justices, Ex Parte McCarthy [1924] 1 KB 256 ([1923] All ER Rep 233): referred to. F

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 317: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-403.

Case Information

Appeal based on a special entry made by the Bophuthatswana High Court (Mogoeng JP and Gura J). The issues appear from the judgment G of Mhlantla JA, in which Mthiyane JA, Lewis JA, Cachalia JA and Snyders JA concurred.

PI Shapiro for the appellants.

GS Maema for the State.

Cur adv vult. H

Postea (March 30).

Judgment

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

2009 (2) SACR p102

Mhlantla JA

A ...