Court name
High Court Main Division
Case number
CRIMINAL 60 of 2013
Title

S v Aribeb (CRIMINAL 60 of 2013) [2013] NAHCMD 273 (04 October 2013);

Media neutral citation
[2013] NAHCMD 273
Coram
Damaseb JP
Hoff J













REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 60/2013







In the matter between:







THE STATE



and



REWARDT ARIBEB
........................................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 1209/2013











Neutral citation:
State v Aribeb
(CR 60/2013) [2013] NAHCMD 273 (04 October 2013)











Coram: DAMASEB JP
and HOFF J







Delivered: 04
October 2013











Summary: A
magistrate who intends mero motu to recuse himself or herself
may only do so in certain circumstances for instance where it appears
that the judicial officer has an interest in the case or where there
is some other reasonable ground for believing that there is a
likelihood of bias on the part of the judicial officer.



In such an instance the
magistrate must afford the parties ie. the prosecutor and the accused
(or his or her legal representative) an opportunity to address the
court on the issue of the intended recusal by the magistrate.







Where the record of
proceedings disappeared before a conviction the magistrate and/or
clerk of the court as part of their administrative duties must
compile afresh the record of the completed part of the trial in any
manner which is fair and reliable as possible – The magistrate
may thereafter in terms of s 186 of Act 51 of 1977 recall any witness
to give evidence in respect of the correctness of the reconstructed
record and such a witness will then be subjected to cross-examination
on the correctness of the record and on the contents of his or her
evidence against the accused – Thereafter the trial takes its
normal course.







A court of review may not
in such a case order that proceedings should start de novo.









ORDER





(a) To the extent that it
is necessary the mero motu recusal by the presiding magistrate
is set aside.







(b) The matter is
referred back to the presiding magistrate to reconstruct the record
as well as possible along the lines discussed herein, to hear the
accused on the validity of the reconstructed record and thereafter to
proceed with the trial.









SPECIAL REVIEW
JUDGMENT









HOFF J (DAMASEB JP
concurring):







[1] This matter was sent
on special review by magistrate L Pretorius attached to Gobabis
Magistrates Court in which he pointed out that magistrate Boluwade
who was previously attached to that court had
mero
motu r
ecused herself from a partly heard
case.







[2] It appears from the
record that the accused person had pleaded to a charge of
contravening the provisions of s 43(1) of the Anti-Corruption Act 8
of 2003 before magistrate Boluwade in Gobabis. A state witness
thereafter testified and was cross-examined by Mr Scholtz, the legal
representative of the accused, and the matter was then postponed.







[3] When the proceedings
resumed on 18 May 2011 it appears that the record of the proceedings
had gone missing. The presiding officer, Ms Boluwade, stated in court
that she had in the interim been transferred to Rundu, that what had
happened must have been an ‘inside work’, that she would
not ‘hold fast unto this matter’, and thereafter
announced that she was recusing herself and that the case must start
de novo before another
magistrate.







[4] Mr Pretorius, in his
letter, stated that the presiding magistrate could not have recused
herself since there was no enmity between her and any one of the
parties, that there is ‘no similar case between the magistrate
and another person in which judgment has not been pronounced’,
that the magistrate has not acted as a legal representative for any
of the parties in the case, and that the magistrate has not noted
that she has an interest in the case or that she would be biased.







A magistrate may only
recuse himself or herself
mero motu
in certain circumstances.







[5] In S
v Malindi and Others
1990 (1) SA 962 (A)
Corbett CJ in dealing with the discharge of an assessor in terms of s
147 of Act 51 of 1977 considered the common law principles regarding
recusal and remarked as follows on 969G-970I:







The common
law basis of the duty of a judicial officer in certain circumstances
to recuse himself was fully examined in the cases of
S
v Radebe

1973 (1) SA 796 (A) and
South
African Motor Acceptance Corporation (Edms) Bpk v Oberholzer

1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises
where it appears that the judicial officer has an interest in the
case or where there is some other reasonable ground for believing
that there is a likelihood of bias on the part of the judicial
officer: that is, that he will not adjudicate impartially. The matter
must be regarded from the point of view of the reasonable litigant
and the test is an objective one. The fact that in reality the
judicial officer was impartial or is likely to be impartial is not
the test. It is the reasonable perception of the parties as to his
impartiality that is important.







Normally recusal would follow upon an
application (exceptio recusationis) therefore by either or
both of the parties, but on occasion a judicial officer may recuse
himself mero motu, ie without any such prior application [...]







It would thus seem that at common law
the recusal of an assessor is a proceeding in open court and that it
is an issue upon which the parties would be afforded an opportunity
to be heard. Obviously, this would be so where one of the parties
moved for the assessor’s recusal; and, in my opinion, it should
also be so where the assessor or the court acts mero motu.
A recusal would normally result in the proceedings being quashed and
a new trial being directed’.



(Emphasis provided).







[6] It is common cause
that the parties (ie the State and the accused or his legal
representative) were not given the opportunity to address the
presiding magistrate on the issue of her intended recusal. The
magistrate should have afforded them the opportunity to address her
on this issue.







[7] In any event there is
no apparent lawful reason why the presiding officer had to recuse
herself, except to state that it appears the presiding magistrate was
annoyed when she was informed that the record of the proceedings went
missing.







[8] In S
v Haibeb
1994 (1) SACR 657 (Nm) it was held
that it is the duty of the presiding officer to keep an intelligible
record of the proceedings.







[9] It appears to me that
different procedures apply in respect of the reconstruction of a
record where an accused person has been convicted or sentenced and
the instance where the accused has not yet been convicted.







[10] In the first
instance (ie after conviction or sentence) the clerk of the court
would be directed to reconstruct the record with the assistance of
state witnesses, the magistrate, the prosecutor, the interpreter or
the stenographer. This reconstructed record is then submitted to the
accused (or his or her legal representative) to obtain his or her
agreement with it. The response of the accused is recorded under
oath. (See
S v Gumbi 1997
(1) SACR 273 (W);
R v Wolmarans
1942 TPD 279; S v Makanji en
Andere
1974 (4) SA 113 (T); S
v Whitney
1975 (3) SA 453 (N); S
v Stevens
1981 (1) SA 864 (C); S
v Quali
1989 (2) SA 581 (EC); S
v Joubert
1991 (1) SA 119 (A). In such a case
the clerk of the court endeavours to obtain the best secondary
evidence regarding the content of the record and there is no room for
a second ‘trial’.







[11] The situation is
different where the record disappears before conviction. In
S
v Catsoulis
1974 (4) SA 371 TPD the following
appears from the headnote:







Where the
record of a part-heard criminal trial in a magistrate’s court
is lost there is no legal ground upon which a re-trial at this stage
can be ordered either by the trial court or by the Supreme Court. In
such a case the position is as follows: that the trial was, up to the
stage that it had reached, a proper, valid trial and there is neither
reason nor jurisdiction to declare the part-heard trial to be a
nullity; that it is the administrative task of the magistrate and/or
the clerk of the court to compile afresh a record of the completed
part of the trial in any manner which is fair and as reliable as
possible; that this embraces an administrative enquiry and action and
has nothing to do with the trial as such; that at the resumption of
the trial, after the record has been restored as well as possible,
the magistrate is in terms of section 210 of the Criminal Procedure
Act, 56 of 1955, entitled to recall any witness to give evidence, to
lay his reconstructed evidence before him and to ask whether it
tallies with the evidence which he originally gave at the trial. The
witness will then be subject to cross-examination by the defence on
his answers to the magistrate’s questions on the correctness of
the record and on the contents of his evidence against the accused.
Thereafter the trial can take its normal course’.



Section 186 of Act 51 of
1977 is similarly worded as s 210 of Act 55 of 1956.







[12] This procedure was
followed in
S v Matthys 1985
(1) SA 209 CPD where it was also held that a court of review is not
empowered to order a re-trial, ie order that the proceedings should
start de novo, where the record of the case went astray before
conviction in a magistrate’s court



(See also S
v Rakgoale
2001 (2) SACR 317 TPD).







[13] In my view this is
also the procedure to be followed in respect of the proceedings in
the magistrate’s court in Gobabis.



[14] In the result the
following orders are made:







(a) To the extent that it
is necessary the mero motu recusal by the presiding magistrate
is set aside.







(b) The matter is
referred back to the presiding magistrate to reconstruct the record
as well as possible along the lines discussed herein, to hear the
accused on the validity of the reconstructed record and thereafter to
proceed with the trial.































---------------------------------



E P B HOFF



Judge



























----------------------------------



P T DAMASEB



Judge-President