S v Radebe

• Jurisdiction: South Africa
• Citation: 1973 (1) SA 796 (A)

S v Radebe
1973 (1) SA 796 (A)

1973 (1) SA p796

Citation	1973 (1) SA 796 (A)
Court	Appèlafdeling
Judge	Rumpff AR, Wessels AR en Muller AR
Heard	September 19, 1972
Judgment	November 11, 1972

Flynote : Sleutelwoorde A

Strafproses — Verhoor — Plig van Regter — Moet sy taak sonder vrees uitvoer — Aanranding op Regter — Weiering om te onttrek — Nie 'n onreëlmatigheid nie — Strafreg — Persone, verantwoordelikheid van — Geestestoestand — Sulks deur beskuldigde geopper — Omvang en toepaslikheid van arts. 28 en 29 van Wet 38 van 1916.

Headnote : Kopnota

Aangesien daar 'n vermoede bestaan dat 'n Regter sy taak sonder vrees sal uitvoer, kan dit ontmoontlik bevind word dat 'n bedreiging of 'n poging om 'n Regter aan te rand, sonder meer, 'n feit is wat in die algemeen die onpartydigheid van die Regter wesenlik sou kon benadeel. Die weiering van so 'n Regter om hom te onttrek is geen onreëlmatigheid nie.

Die omvang van artikels 28 en 29 van Wet 38 van 1916 en wanneer hulle toegepas moet word bespreek.

Flynote : Sleutelwoorde

Criminal procedure — Trial — Duty of Judge — Must carry out his task fearlessly — Assault on Judge — Refusal to recuse himself not an irregularity — Criminal law — Persons, liability of — Mental state — Such raised by accused — Scope and applicability of secs. 28 and 29 of Act 38 of 1916.

Headnote : Kopnota

Whereas a presumption exists that a Judge will carry out his task fearlessly, it would be impossible to hold that a threat or an attempt to assault a Judge, pure and simple was a fact which in general would materially affect the impartiality of the Judge. The refusal of such a Judge to recuse himself is not an irregularity.

The scope of sections 28 and 29 of Act 38 of 1916 and when they should be applied, discussed.

Case Information

Appèl teen 'n skuldigbevinding in die Durban en Kus Plaaslike Afdeling (MULLER, R.). Feite wat nie van belang is nie is weggelaat.

G. B. Muller, Q.C., (bygestaan deur J. J. Lapping), namens die appellant op versoek van die Hof: On the question of recusal: After the events described in annexure B the Court a quo should have recused itself. In spite of the wish by the appellant that the trial should continue the continued hearing constituted an irregularity, more E particularly in the light of the Court's prior order and appellant's expression of mistrust and the fact that the incident occurred in open Court and was reported in the Press. A right minded person could think that there was a real likelihood of bias on the part of the Court. See Metropolitan Properties Co. (F.G.C.) Ltd., v Lannon and Others, (1968) F 3 All E.R. at pp. 309H - 310D; Smith v Ring van Keetmanshoop N.G.K., Suidwes-Afrika, 1971 (3) SA at p. 362. The Court itself had misgivings about the propriety of continuing the trial, but apparently decided to continue because it had heard the evidence of Dr. van Straaten that appellant was fit to stand trial. The Court a quo was mistakenly of the G opinion that, provided it was satisfied in its own mind that the appellant would receive a fair trial, that was the end of the matter. The real test is not actual bias but whether a reasonable man would believe there existed a real likelihood of bias. Cf. Slade v The Pretoria Rent Board, 1943 T.P.D. at p. 251. The whole incident appears to have D

1973 (1) SA p797

arisen from the fact that the appellant had previously been convicted of robbery by the same presiding Judge. The appellant apparently considered that he was not getting a fair trial. If his belief was reasonable that in itself would be enough to bring about a recusal. Cf. R. and Another v Foya and Another, 1963 (3) SA at p. 463C.

A This case falls within the second category of the rules relating to irregularities and the provisos to secs. 369 (1) of Act 56 of 1955 and sec. 103 (4) of Act 32 of 1944. See S. v Moodie, 1961 (4) SA at p. 758E - H; Metropolitan Properties' case, supra. The administration of justice is the concern of the public at large and in a criminal case there can be no waiver of the duty of a Court in a trial. See S. v. B Lwane, 1966 (2) SA at p. 444C - F; cf. Springs T.C. v Badenhorst, 1968 (2) SA at p. 121D - E; Swallow & Pearson v Middlesex C.C., (1953) 1 All E.R. at p. 580B; Spencer Bower, Estoppel by Representation, 2nd ed., at pp. 134, 135.

C As to the appellant's state of mind there was an allegation and it appeared before judgment, that the appellant was not of sound mind. Accordingly, the appellant should have been sent for observation in terms of sec. 28 (3) of the Mental Disorders Act, 38 of 1916, as read with sec. 182 of Act 56 of 1955. See S. v Nell, 1969 (1) SA at p. D 146; R. v Linda, 1959 (1) SA at p. 104; R. v Mfuduka, 1960 (4) SA 770. Appellant should have been sent for observation as was done in R. v Linda, supra. Neither the Court nor Dr. van Straaten had expert medical knowledge of mental unsoundness. Whatever may have been appellant's fitness to stand trial, the evidence clearly reveals that he was not mentally sound. It was fundamental to a fair trial that there E should have been observation in terms of sec. 28 (3). The failure to have proper examination by an expert is an irregularity which per se amounted to a failure of justice. See S. v Moodie, supra at p. 756.

Re statement by the witness Petrus: The Court relied heavily on the evidence of this witness. Neither the Court nor the defence were aware F that his evidence conflicted with his statement to the Police. See R. v Steyn, 1954 (1) SA at p. 337; Swift, Law of Criminal Procedure, 2nd ed., p. 529; R. v White, 1962 (4) SA at p. 154H.

Re sentence: It is urged that if appellant was rightly convicted it should have been found that extenuating circumstances existed. Cf. S. v Webb, 1971 (2) SA at pp. 344 - 5.

J. S. Jansön, namens die Staat: The appellant received a fair trial in accordance with the accepted tenets of adjudication and the need did not arise for the Court to recuse itself. Because the accused, in acting in the way he did, chose to reveal his previous conviction to the Court, this fact did not disqualify the Court from trying his case and therefore did not make the proceedings irregular within the meaning of H sec. 369 (1) of Act 56 of 1955. See R. v Essa, 1922 AD at p. 246; R. v Mgwenya, 1931 AD at pp. 6 - 7, Khan v Koch, N.O., 1970 (2) SA at pp. 404D - 405B. The appellant's 'expression of mistrust', although understandable was not reasonable in the circumstances and cannot be seen as anything more than the morbid suspicion of an unreasonable person. See R. v Justices of County Cork, 1910 I.R. 271. The Court is the best judge as to whether it can conscientiously discharge its functions, G

1973 (1) SA p798

and in deciding whether or not to preside at a trial. A Judge must follow his conscience. See Selective Voet (Gane's translation), p. 62, and an Appeal Court will not easily intervene between a man and his conscience. The correct test to be applied is that the Court must itself A examine its judicial conscience in a matter of this nature and, in determining whether a real likelihood of bias exists, approach the issue from the viewpoint of a reasonable lawyer and not that of the reasonable layman. See R. v Milne and Erleigh, 1951 (1) SA at pp. 11 - 12; R. v T., 1953 (2) SA at p. 483. R. and Another v Foya and Another, 1963 (3) SA 459, does not correctly reflect the test and approach to be B followed by a Court confronted with the issue of recusal. After the incident the Court took great pains in adhering faithfully to the fundamental rule that 'justice should not only be done, but should manifestly and undoubtedly be seen to be done'. See R. v Sussex Justices: Ex parte McCarthy (1924) 1 K.B. 256.

Re the appellant's state of mind: The appellant himself testified as to his normality. The proceedings were regular and according to law, and they in no way jeopardised or imperilled the basic concept of a fair trial. Notwithstanding the fact that different considerations apply to pro deo cases, as distinct from other cases in which it would be the D responsibility of the defence to obtain evidence of the accused's mental state. See R. v Linda, 1959 (1) SA 103, R. v Mfunduka, 1960 (4) SA 770. At no stage was the defence set up that appellant was not criminally responsible on the ground of insanity. There was no firm application by defence for a medical expert to be called by the Court, E but this was left to the discretion of the Court, who at that late stage still had no doubts as to the appellant's sanity. C

As to statement by Petrus: Counsel for the State, being well aware of the dicta in S. v Steyn, 1954 (1) SA 324, and R. v White, 1962 (4) SA 153, and as such conversant with the duties of a prosecutor, exercised his discretion in not, (i) directing the Court's attention to F deviation, or (ii) in making the statement available to the defence for cross-examination for special and cogent reasons. The irregularities or illegalities are not of such a nature as per se to amount to a failure of justice as is contemplated by sec. 369 (1) of Act 56 of 1955 and a reasonable court, properly directing itself, would inevitably have G convicted the appellant. See R. v Moodie, 1961 (4) SA 752. The Court has then to decide for itself whether, on the totality of the evidence and the findings of credibility, unaffected by the irregularity or defence, there is proof of appellant's guilt beyond a reasonable doubt. See S. v Tuge, 1966 (4) SA 565; S. v Yusuf 1968 (2) SA 52.

H As to sentence: The evidence did not reveal the appellant to have such a pronounced psychopathic personality that it could extenuate this crime. There was no suggestion that the crime committed by appellant was in anyway prompted by his addiction to dagga. S. v Ndhlovu, 1970 (1) SA at p. 433G. The Court, properly addressing itself to the existence...