S v Serame

• Jurisdiction: South Africa
• Judge: Grant AJ
• Judgment Date: 01 August 2019
• Citation: 2019 (2) SACR 407 (GJ)
• Docket Number: SS 126/2018
• Hearing Date: 18 June 2019
• Counsel: Adv Williams for the state. Mr Jaggan (attorney) for the accused.
• Court: Gauteng Local Division, Johannesburg

Grant AJ: B

[1] The accused is charged with the crime of murder read with s 51(1) of the Criminal Law Amendment 105 of 1997, in that on 13 July 2018, and at or near House 9530, Phase 2, Braamfisherville, Roodepoort, in the district of Johannesburg West, the accused did unlawfully and C intentionally kill Keikantseng Regina Motswana (hereinafter referred to as the deceased), an adult female person.

[2] The state alleged that the accused and the deceased were in a love relationship and that, during the evening of Friday 13 July 2018, neighbours heard the deceased scream. As the neighbours went to D investigate the screams they found the accused viciously assaulting the deceased by stabbing her with broken glass pieces. The accused, who had locked the door of their room, informed the neighbours that he was going to kill the deceased. The accused at one stage also took a hairdryer and hit the deceased with the hairdryer.

[3] E The state further alleges that, whilst some neighbours went to call the police, the accused took a piece of the broken glass and caused injuries to his own neck. The accused then took photos of the deceased with his cellphone and sent them to her family and friends.

[4] F The neighbours managed to break open the burglar bars and found the deceased lying in a pool of blood. The accused was also lying near the deceased. The police arrived and transported the accused to a hospital. The deceased died at the crime scene, of a penetrating incised wound to the chest and blunt-force trauma to the head and face.

[5] G On 29 May 2019 the defence sought to enter a guilty plea in this case under s 112 of the Criminal Procedure Act 51 of 1977 (the CPA). It handed in a s 112(2) statement, which was read into the record.

[6] The facts relate to a brutal attack by a man on a woman, in which the man had inflicted fatal wounds upon her with broken glass — while both H were locked in a room.

[7] I enquired from the defence counsel whether he had consulted with the accused about his capacity at the time — to which the defence counsel responded that he had not.

[8] I I then indicated that I would like to ask the accused what happened on the day. Defence counsel then offered for the accused to take to the witness box. I agreed that in the circumstances I deemed it appropriate.

[9] The accused walked over to the witness box — which took about a minute — and was duly sworn in by the interpreter. This became the J subject of a recusal application — discussed below.

Grant AJ

[10] It is significant to note that neither the state nor the defence A objected to the accused being placed under oath — despite the extended period of time available to do so. Indeed, the defence had offered for the accused to take the stand.

[11] I commenced by asking the accused what happened on the day. B He explained that it had been an ordinary day and that he had gone with the deceased to work at about 11h00 on that day.

[12] The style of questioning which I adopted was very open-ended — in which I prompted by asking the accused to explain what happened, and what happened next, or more about something that he said. C

[13] The accused went on to say that he did not know why they had started fighting on that day, and that, perhaps, it could have had something to do with the 'drinking'.

[14] I asked him to tell me more about the 'drinking'. He proceeded to D explain that:

[14.1]

He had already been out that morning, had purchased a bottle of whisky, and returned with it to where he and the victim resided together. He explained that they had drunk about half of it by the time they left (around 11h00) for her work. E

[14.2]

He explained that, once they arrived at her place of work — a salon — they sat in a room at the back and continued to drink. This room appears to have been a self-standing shed and is the room in which the conduct in question occurred.

[14.3]

He continued that they had finished the bottle of whisky by about lunchtime, and that they then switched to drinking beers. F They would, he explained, send a child to purchase the beer for them. The accused could give no further account of the amount of beer, or otherwise how much alcohol, he consumed.

[14.4]

He indicated that sometime around dusk a friend came to collect him, and he explained that he was unable to go — this he G attributed to having not been properly authorised by his wife/girlfriend. It appears possible, though, that his state of sobriety may have played a role in him not having gone with his friend as scheduled.

[15] He estimated that, upon his return to the room, it was approximately H 19h00. He recalls an argument which had something to do with a mobile phone. He reported, though, that he could recall nothing after that, and could only recall awakening in the hospital.

[16] I indicated to the defence and state that I could not accept a plea of I guilty in the circumstances, in that it appeared to me that there were serious questions to be addressed relating to the accused's capacity, his voluntariness, and otherwise — according to the case of S v Chretien 1981 (1) SA 1097 (A).

[17] I rejected the plea of guilty tendered in terms of s 112(2). J

Grant AJ

Recusal application A

[18] The matter was postponed to 30 May 2019 for the state and defence to make enquiries regarding the possibility of the accused being submitted for some form of expedited observation. On the appointed date the state brought an application for my recusal — on the grounds, it B explained, of an 'irregularity'.

[19] Part of the allegations made by the state was that I had struck evidence from the record — to its detriment. The record was replayed, and it became clear that this was, in fact, not true. I had instead rejected the accused's plea explanation.

[20] C In addition, it was submitted that I had committed an irremediable irregularity by questioning the accused under oath — since this made it 'evidence', and, so the argument went, once it was 'evidence', both the state and the defence were prejudiced.

[21] I asked the state to find authority on the point — prohibiting a D judicial officer from questioning the accused, under s 112, under oath. The court adjourned the matter until 18 June 2019 for argument and invited the defence to file its own heads of argument.

[22] The state submitted heads of argument on about 13 June 2019, and the defence opted not to — indicating, in court, that it stood by the E arguments raised in the heads of argument of the state.

Recusal

[23] Having considered the state's heads of argument and heard its arguments, it is clear that the state persists in submitting that the court had struck evidence from the record — despite all having reviewed the F record and having agreed that this was not the case.

[24] In addition, the state submitted that the court had insisted that the accused take the stand, as if it was at the instance of the court and contrary to the wishes of the defence and the state. The truth — that the defence counsel had offered that the accused take the stand — is not G reflected.

[25] Thus, at least, the application was premised on two factual errors. In addition, it is based on the legal error that a judicial officer can recuse themself by virtue of having committed an 'irregularity'.

[26] H As indicated in the case of 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; [1999] ZACC 9) (the SARFU case), a judicial officer can only entertain an application for recusal based on the allegation of bias. This extract appears in the Commentary on the Criminal Procedure Act:

'The I Constitutional Court summarised these guidelines in President of the Republic of South Africa & Others v South African Rugby Football Union & Others 1999 (4) SA 147 (CC) at [28] as follows:

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the J judge has or will not bring an impartial mind to bear on the

Grant AJ

adjudication of the case, that is a mind open to persuasion by A evidence and the submissions of counsel.'

[Emphasis added.]

[27] As indicated, the state sought my recusal on the basis of irregularity. This is unknown in our law. An application for recusal may be brought based on allegations of bias. B

[28] That bias must be the basis for the application, is obvious from the authority which the state correctly relies upon. The state, however, expressly alleges no bias.

[29] Counsel for the state did submit, however, in argument, that, although the court was not biased in any sense traditionally understood, C or as would be detected...