S v Le Grange and Others

• Jurisdiction: South Africa

S v Le Grange and Others
2009 (2) SA 434 (SCA)

2009 (2) SA p434

Citation	2009 (2) SA 434 (SCA)
Case No	40/2008
Court	Supreme Court of Appeal
Judge	Mpati P, Brand JA, Ponnan JA, Cachalia JA and Mhlantla AJA
Heard	August 21, 2008
Judgment	September 18, 2008
Counsel	BC Bredenkamp SC for the appellants.; JJ Cloete for the State.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to fair trial — Judicial officers to conduct trials open-mindedly, impartially and freely — Such conduct must be manifest, especially to accused — Fairness of trial clearly under threat if court failing to apply law and assess facts impartially and without fear, favour or prejudice — Judicial officers to avoid impatience wherever possible C — Judicial officers able to perform demanding and socially important duty properly only if mindful of own weaknesses and personal views, and able to control them.

Criminal procedure — Trial — Irregularity — What constitutes — Presiding officer's questioning of witnesses and accused — Record replete with questions D intended to discredit accused — Impression that judge's questions designed to produce answers favourable to State — Certain comments made by presiding judge meaning only that he had decided, before hearing accuseds' evidence, that State's case true — Not approaching accuseds' case objectively and impartially — Judge's language suggesting certain preconceived biases — These irregularities vitiating trial — Convictions E and sentences set aside.

Judge — Duties and functions — Judicial officers to conduct trials open-mindedly, impartially and freely — Such conduct must be manifest, especially to accused — Fairness of trial clearly under threat if court failing to apply law and assess facts impartially and without fear, favour or prejudice — Judicial officers to avoid impatience wherever possible — Judicial officers able to F perform demanding and socially important duty properly only if mindful of own weaknesses and personal views, and able to control them.

Headnote : Kopnota

The three appellants appeared in the High Court on a count of murder. The first appellant was convicted as charged and sentenced to 24 years' imprisonment. The other two appellants were convicted of being accessories after G the fact to the murder and sentenced to effective terms of six and five years, respectively. Leave to appeal conviction and sentence was granted to all three appellants on petition to the Supreme Court of Appeal. During the course of the trial the defence applied unsuccessfully for the recusal of the presiding judge on the grounds, firstly, that he had irregularly curtailed or interrupted the cross-examination of certain State witnesses; and, secondly, H that the presiding judge had questioned the first appellant in a manner that, having regard to his judicial functions, was impermissible or excessive. The main contention on appeal was that, having regard to the manner in which the presiding judge had conducted himself, the appellants had not had a fair trial.

Held, that the law required not only that a judicial officer must conduct a trial I open-mindedly, impartially and freely, but that such conduct must be manifest, especially to the accused. The requirement of impartiality was closely linked to the right of an accused person to a fair trial, and such fairness would clearly be under threat if a court failed to apply the law and assess the facts impartially and without fear, favour or prejudice. (The court proceeded to examine extensive portions of the trial record.) Presiding over J criminal trials was a difficult task, and cross-examination could sometimes

2009 (2) SA p435

appear protracted and irrelevant. However, impatience was something that A a judicial officer must wherever possible avoid, and always strictly control. It could impede his perception, blunt his judgment and create an impression of enmity or prejudice in the person against whom it was directed. A judicial officer could perform his demanding and socially important duty properly only if he stood guard over himself, mindful of his own weaknesses and personal views, and controlled them. (Paragraphs B [14] and [18] at 449A - E and 457J - 458C.)

Held, further, that many of the presiding judge's questions to the appellants had been legitimately put for elucidation or supplementation, but the record was also replete with questions that were intended to discredit the appellants, compounded in many instances by disbelief and scepticism. Far from merely clarifying matters, the questioning sought to pick holes in the C appellants' version, and must have seemed to them to have been designed to produce answers favourable to the State. This questioning strongly indicated that the judge had made up his mind at an early stage that the State witnesses were telling the truth and the appellants lying. While judicial officers could, and did, form provisional views on the credibility of witnesses, it remained their fundamental duty not to close their minds to D the possibility of changing such views until the last word had been spoken. Certain comments made by the presiding judge could mean only that he had decided, long before the cross-examination of the State witnesses, let alone before hearing the evidence of the appellants, that the State's case was the truth. He had not approached the appellants' case objectively and impartially, and the language used suggested that he had certain preconceived E biases, which he had allowed to affect his judgment. (Paragraphs [20] and [23] at 458G - 459A and 461A - F.)

Held, further, that some of the irregularities complained of would, in themselves, not have constituted sufficient indication that the appellants had not enjoyed a fair trial. Taken cumulatively, however, they compelled the conclusion that the presiding judge had not been fair and impartial during F the trial. Under the circumstances the proceedings were invalid and the convictions and sentences could not stand. The irregularity was such as to have vitiated the trial entirely; the possibility of double jeopardy did not arise, and the institution of a new trial would not infringe s 35(3)(m) of the Constitution. There was a pressing societal demand for, and public interest in, the case, which involved a most serious charge; accordingly, there would G be a miscarriage of justice should a proper trial not ensue. (Paragraphs [29] and [31] at 463G - H and 464E - 465B.)

Convictions and sentences set aside. Matter remitted to the High Court for retrial before a different judge.

Cases Considered

Annotations

Reported cases H

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

Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA): referred to

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

S v Basson 2007 (3) SA 582 (CC) (2007 (1) SACR 566; 2005 (12) BCLR 1192): referred to

S v Jaipal 2005 (4) SA 581 (CC) (2005 (1) SACR 215; 2005 (5) BCLR 423): dictum in para [29] applied J

2009 (2) SA p436

S v Meyer 1972 (3) SA 480 (A): referred to A

S v Moodie 1962 (1) SA 587 (A): referred to

S v Naidoo 1962 (4) SA 348 (A): followed

S v Rall 1982 (1) SA 828 (A): followed

S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243): dictum in para [25] applied

S v Sallem 1987 (4) SA 772 (A): referred to B

S v Tyebela 1989 (2) SA 22 (A): dictum at 29G applied

Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) ([2004] 1 All SA 597): referred to.

Foreign cases

R v Gough [1993] AC 646 (HL) ([1993] 2 All ER 724): referred to C

R v S (RD) [1997] 3 SCR 484 (SCC) (118 CCC (3d) 353; 151 DLR (4th) 193): dicta in paras [35] and [104] - [106] applied

Strickland v Washington 466 US 668 (1984): dicta at 681 and 689 applied

Yuill v Yuill [1945] 1 All ER 183 (CA): dictum at 189A applied.

Statutes Considered

Statutes D

The Constitution of the Republic of South Africa, 1996, s 35(3)(m): see Juta's Statutes of South Africa 2007/8 vol 5 at 1-26.

Case Information

Appeal from a decision of the Northern Cape Division (Kgomo JP). E The facts appear from the judgment of Ponnan JA, in which Mpati P, Brand JA, Cachalia JA and Mhlantla AJA concurred.

BC Bredenkamp SC for the appellants.

JJ Cloete for the State.

Cur adv vult. F

Postea (September 18).

Judgment

Ponnan JA:

G [1] The first appellant, his son - the third appellant, and the latter's friend, the second appellant, were indicted before the Kimberley High Court (per Kgomo JP), on one count of murder. The first appellant, who was convicted as charged, was sentenced to imprisonment for a term of 24 years. The remaining two appellants were convicted of being accessories H after the fact to murder and were sentenced to imprisonment for terms of eight and seven years respectively, a period of two years of which in each instance was conditionally suspended. The effective sentence imposed on the second and third appellants was thus imprisonment for terms of six and five years, respectively. Leave to appeal was granted by the trial court to the first appellant solely in respect of the I sentence imposed on him. This court, on petition to it, extended the scope of the appeal to encompass all of the convictions as well as the sentences imposed pursuant thereto in respect of all of the appellants.

[2] The deceased, 13-year-old Biron Phetlo, had spent the greater part of Sunday, 24 March 2004, at the Prieska Golf Course in the company J of his two friends, 14-year-old Curtis Maritz and 17-year-old Jaco Botha.

2009 (2) SA p437

Ponnan JA

Two of the three had managed to secure work as...