S v Zuma and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa

S v Zuma and Another
2023 (1) SACR 621 (KZP)

2023 (1) SACR p621

Citation	2023 (1) SACR 621 (KZP)
Case No	CCD 30/2018 P
Court	KwaZulu-Natal Division, Pietermaritzburg
Judge	Koen J
Heard	October 17, 2022
Judgment	January 30, 2023
Counsel	WJ Downer SC (with KL Singh and I du Plooy) for the state.; D Mpofu SC (with T Masuku SC, M Qofa, N Buthelezi and N Xulu) for the first accused.

Flynote : Sleutelwoorde

Trial — Presiding officer — Recusal of — On grounds of appearance of bias — What constitutes — Earlier involvement by judge in decisions upholding title of prosecutor to prosecute — Reasonable possibility of perception of court's predisposition — Judge to recuse himself.

Headnote : Kopnota

The two accused were standing trial in the High Court on various charges. The first accused raised a special plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 that the prosecutor lacked title to prosecute. The court had delivered a judgment dismissing the special plea and refused leave to appeal against that judgment. A petition to the Supreme Court of Appeal was also refused. An application for reconsideration of the refusal of the petition was also refused. The first accused then filed an application to the Constitutional Court for leave to appeal against the reconsideration application, which was still pending when the trial came before the same judge. The matter was then postponed, and the first accused then commenced private-prosecution proceedings against the prosecutor for allegedly having leaked his confidential medical information. The Constitutional Court then refused the reconsideration application on the grounds that the first accused could seek leave from the Constitutional Court to appeal against the High Court's judgment to it. The first accused then availed himself of that opportunity and the criminal trial was then postponed.

The presiding judge then, of his own accord, became concerned that certain conclusions and comments expressed in his previous judgments might require his recusal, specifically in the context of the ongoing constitutional imperative that the first accused had to receive a fair trial. Once the private prosecution of the prosecutor in the main trial had subsequently become a reality and the prosecutor having appeared in court, the presiding judge was of the opinion that the implications and the impact thereof needed to be considered very carefully and dispassionately. The judge then made an order inviting written submissions from the parties as to whether he should continue presiding over the case. Both parties accordingly filed submissions.

After considering the matter, the presiding judge opined that two questions were reasonably anticipated to arise for determination in the main trial, namely whether the prosecutor should remain as prosecutor or whether he should be removed, and secondly, whether the first accused received or would have received a constitutionally fair trial. Foundational to those two questions was the private prosecution of the prosecutor and other grounds of complaint previously raised by the first accused in the special-plea proceedings, and the issue of him remaining as prosecutor was inextricably linked to the merits of the private prosecution. The issue regarding the second question was an important enquiry and something that should be ever present to a judge's mind during a trial. (See [50].)

The presiding judge remarked that he had concluded that it would not be unlawful for a prosecutor to deal with enquiries from the press to ensure that the public was properly informed of the work of the National Prosecuting Authority (the NPA). Although the court had described some of those views as ruminations without the benefit of having heard considered

2023 (1) SACR p622

argument, they were nevertheless views held and seriously expressed. (See [53].) The judge held that it was undoubtedly so that, irrespective of the outcome of the private prosecution, the fact that the prosecutor was being privately prosecuted would require a determination of the question whether he should remain as prosecutor. The answer to that question would not only be objectively important to a person in the position of the first accused, but would also reasonably affect the public confidence in the judiciary, the NPA and the general administration of justice. The mere fact that a private prosecution was being pursued against a prosecutor in a pending trial was a matter of considerable concern and might suggest, perhaps even strongly suggest, that he should be removed as prosecutor, although it was not per se necessarily conclusive on the issue of his removal. (See [59] – [60].) A prosecutor was a constitutional officer duty-bound by an oath of office to prosecute cases and, naturally, most would consider themselves bound by the oath of office and one had to proceed on the basis that prosecutors would ordinarily, and certainly as a matter of probability, not act unlawfully and in deliberate breach of the oath of office. Furthermore, it was undoubtedly so that in a criminal prosecution, as the liberty of an accused was to be decided, constitutional concerns were implicated in a more profound manner than in civil cases. It also had to be recognised that the prosecutor did not have the luxury of choosing the cases in which he or she prosecuted, but was appointed and assigned to cases in the discretion of a particular Director of Public Prosecutions and/or the NPA, and he or she did not have a choice in the matter. (See [63] – [65].)

The court did not want to be understood as anticipating the outcome of the private prosecution or dealing with objections raised to the validity of the private prosecution. Regardless of what those courts might find, the objective facts were that the present court had already expressed views contrary to the argument advanced by the first accused in respect of the alleged unlawful disclosure of his medical condition, which was at the foundation of the criminal charge in the private prosecution and the issue whether the prosecutor should be removed from the criminal trial. Any objective accused person in the position of the first accused could reasonably not be expected to be satisfied with having a judge who had expressed views and made findings regarding the alleged leaking of his medical information, and whether those constituted an infringement of his constitutional rights and a contravention of ss 41(6) and (7) of the NPA Act 32 of 1998. (See [71] – [72].) The court's findings on the disclosure of the first accused's medical condition were not simply en passant. Reasonably construed, they conveyed a perception of the disposition to conclude and view those complaints to be without merit. In the light of past litigation, the issue of the court's independence, and whether the judge should recuse himself, was an issue which would be contested — if not now, then certainly in the future. The trial had reached a stage where the proceedings to date were beyond criticism and reproach. It was ready to proceed on its merits and had to be determined by a judge who could not reasonably be accused of having previously expressed any conclusions or views on matters which would arise for decision. The judge accordingly decided to recuse himself and withdraw from the trial. (See [81] – [84].)

Cases cited

Southern Africa

Basson v Associated Portfolio Solutions (Pty) Ltd and Others [2018] ZAWCHC 184: applied

2023 (1) SACR p623

Basson v Hugo and Others 2018 (3) SA 46 (SCA) ([2018] 1 All SA 621; [2018] ZASCA 1): applied

Bennett and Another v The State; In re: S v Porritt and Another 2021 (1) SACR 195 (GJ) ([2021] 1 All SA 165): referred to

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): applied

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to

Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) ([2015] 2 All SA 517; 2015 (5) BCLR 560; [2015] ZASCA 58): referred to

De Lacy and Another v South African Post Office 2011 (9) BCLR 905 (CC) ([2011] ZACC 17): dictum in para [49] applied

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658; [1996] ZACC 10): referred to

Ex parte Goosen and Others 2020 (1) SA 569 (GJ) ([2019] 3 All SA 161): dictum in para [14] applied

Mbana v Shepstone & Wylie [2015] ZACC 11: dictum in para [65] applied

MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga 2021 (4) SA 131 (SCA) ([2020] 1 All SA 52; [2019] ZASCA 147) : referred to

Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others 2023 (2) SA 68 (CC) ([2022] ZACC 37): dictum in para [52] applied

Minister of Safety and Security v Jongwa and Another 2013 (2) SACR 197 (ECG) (2013 (3) SA 455): dicta in paras [43] – [44] applied

MJ Vermeulen Inc v Engelbrecht NO and Another [2020] ZAWCHC 148: applied

Mulaudzi v Old Mutual Co (South Africa) Ltd and Others 2017 (6) SA 90 (SCA) ([2017] 3 All SA 520; [2017] ZASCA 88): dicta in paras [59] and [68] applied

Nundalal v Director of Public Prosecutions, KwaZulu-Natal and Others [2015] ZAKZPHC 25: referred to

Peermont Global (North West) (Pty) Ltd v Chairperson of the North West Gambling Review Tribunal and Others [2022] ZASCA 80: dictum in para [137] applied

Phillips v Botha 1999 (2) SA 555 (SCA) ([1999] 1 All SA 524; [1998] ZASCA 105): dictum at 565E – F applied

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): dictum in para [48] applied

S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620; [2004] ZACC 13): dictum in para [53] applied

S v Basson 2007 (1) SACR 566 (CC) (2007 (3) SA 582; 2005 (12)...