Court name
Supreme Court
Case number
SA 10 of 2010
Case name
Munuma and Others v S
Media neutral citation
[2013] NASC 10
Judge
Shivute CJ












REPORTABLE


CASE
NO: SA 10/2010






IN
THE SUPREME COURT OF NAMIBIA






In
the matter between:


































































PROGRESS
KENYOKA MUNUMA



1st
Appellant



SHINE
SAMULANDELA SAMULANDELA



2nd
Appellant



MAKENDANO
MANUEL MANEPELO



3rd
Appellant



ALEX
SINJABATA MUSHAKWA



4th
Appellant



DIAMOND
SAMUNZALA SALUFU



5th
Appellant



FREDERICK
NTAMBILWA ISAKA



6th
Appellant



HOSTER
SIMASIKU NTOMBO



7th
Appellant



BOSTER
MUBUYEATA SAMUELE



8th
Appellant



JOHN
MAZILA TEMBWE



9th
Appellant



ALEX
MAFWILA LISWANI



10th
Appellant











and















THE
STATE



Respondent







Coram:
SHIVUTE, CJ, MARITZ,JA and STRYDOM AJA





Heard:
23 March 2012


Delivered:
15 July 2013



____________________________________________________________________



APPEAL JUDGMENT



____________________________________________________________________






STRYDOM
AJA (SHIVUTE CJ and MARITZ JA concurring)








  1. The appellants were part
    of a group of twelve people who were deported by the authorities in
    Botswana during September and December 2002 and who were arrested by
    the Namibian Police when they set foot in Namibia. They were
    arraigned before a Judge of the High Court and charged with:









  1. High Treason;



  2. Sedition;



  3. Public Violence; and



  4. Three charges related to
    offences committed under the Arms and Ammunition Act, Act No. 7 of
    1996 in contravention of s 29(1)(a),(e) and (b) respectively.








Background




  1. After a protracted trial
    in which more than 60 witnesses testified,all but two of the
    appellants were convicted of the crime of High Treason. In regard to
    the two accused persons, namely accused 4 and 5, the State conceded
    that it did not prove their complicity in the crime and they were
    found not guilty and were discharged.









  1. As described by
    MrTjombe, who appeared for the appellants in this Court, the trial
    was a tumultuous affair. It started off by appellant No. 10 refusing
    to accept the legal representative appointed for him by the Legal
    Aid Directorate because this person was in the employ of the State.
    The Court ordered that a private Legal Practitioner be appointed for
    the appellant. This was done and all the accused persons were then
    represented by Mr. Grobler and MrNdauendapo.









  1. The next step was a
    challenge to the jurisdiction of the Court in terms of s106(3) of
    the Criminal Procedure Act, Act No. 51 of 1977. Special pleas were
    entered by all the accused persons with the exception of accused No.
    8, i.e. appellant No 6. During the proceedings concerning the
    jurisdictional challengethe appellants, with the exception of
    accused No. 11 (appellant No. 9),gave evidence in which they stated
    that they sought, and were granted, political asylum in Botswana.
    Most of them were accommodated in a refugee camp at Dukwe. They also
    testified that, at the time, it had been explained to them that it
    would be a breach of the conditionsof their status as political
    refugees should they ever return to Namibia. They stated that since
    their entry into Botswana they never returned to Namibia. They
    further claimed that they had been abducted from Botswana and that
    the authorities in Namibia and Botswana connived to achieve their
    return to Namibia. The State also presented evidence and Cst.
    Kambungostated that they, i.e. the State, had available evidence
    that the appellants did return to Namibia between the dates when
    they had left Namibia and were deported.









  1. The Court dismissed the
    jurisdiction plea of the appellants and found that, in terms of this
    Court’s decision in S v Mushwena and Others2004 NR
    276(SC), the High Court had jurisdiction to hear the matter.
    Thereupon all the appellants, with the exception of appellant No. 6,
    i.e. accused No. 8,applied for leave to appeal to this Court. The
    Court a quo struck the application from the roll as
    ill-conceived and irregular.









  1. Because of certain
    findings of the learned Judge in his judgment dismissing the plea of
    jurisdiction, all the appellants then applied for his recusal. This
    application was refused and the accused’s application for
    leave to appeal against the Judge’s refusal to recuse himself,
    also met a similar fate.









  1. The stage was then set
    for the trial to begin. All the accused refused to plead to the
    charges and pleas of ‘not guilty’ were recorded in
    respect of each of them. At this stage the appellants also had some
    dispute with their legal representatives and they promptly
    terminated their mandates. From this stage on the appellants started
    to disruptthe court proceedings. Whenever they appeared in Court
    they started to sing and to chant slogans and they demonstrated
    disrespect for the Court. At one stage they were convicted of
    contempt of Court and were sentenced to 30 days imprisonment each.
    Their conduct in Court was such that the Judge had no choice but to
    have them removed from the courtroom and to conduct the proceedings
    in their absence. They were from time to time brought back into
    Court when their rights were explained and, on each occasion, they
    were invited and given a further opportunity to attend the
    proceedings. They, however, did not desist from their disruptive
    conduct.









  1. After the appellants had
    been convicted and sentenced, they applied in the High Court for
    leave to appeal to this Court. The applications in regard to their
    convictions were refused but they were granted leave to appeal
    against the sentences imposed by the Court a quo. They then
    petitioned the Chief Justice for leave to appeal also against their
    convictions. General leave to appeal was refused but leave was
    granted to appeal as follows:








'That leave to appeal is hereby
granted to all the Petitioners to appeal against their conviction on
the ground that a material irregularity affecting the fairness and
validity of the trial proceedings before the Court a quooccurred
pursuant to the refusal by the Presiding Judge to recuse himself on
the grounds relied on by the petitioners’ application for
recusal.'








  1. As previously stated Mr.
    Tjombe represented all the appellants in this Court whereas Mr.
    Small, assisted by Ms. Lategan, appeared for the State. Counsel
    representing the State also appeared in the trial whereas Mr. Tjombe
    was not involved in the trial.









  1. During argument we
    allowed Mr. Tjombe to go much wider than the “grounds
    relied on by the petitioner’s application for recusal.”
    (e.g. see Moch v Nedtravel (Pty) Ltd t/a American Express
    Travel Service
    1996 (3) SA 1 (AD).)








The Law




  1. Until the decisions in
    Monnig and Others v Council of Review and Others 1989 (4) SA
    866(C) and BTR Industries South Africa (Pty) Ltd v Metal and
    Allied Workers’ Union and Another
    1992 (3) SA 673 (A)
    there was some uncertainty as to what the correct approach was in
    order to establish a plea of bias on the part of a presiding
    officer. Two tests were applied. The one test required that a
    complainant would have to show that there was ‘a real
    likelihood’
    of bias occurring whereas the other test
    required only a ‘reasonable suspicion’ that bias
    would occur. From the use of these expressions it is clear that in
    the instance of the ‘reasonable suspicion’ test the
    emphasis was on what a reasonable litigant would suspect. It was
    also said that the first test was more exacting. (See BTR
    Industries South Africa (Pty) Ltd v Metal and Allied Workers Union
    and Anothersupra,
    at p. 691).









  1. In the BTR-case,
    Hoexter JA reviewed various South African cases as well as cases in
    English law and the old Roman Dutch writers. The learned Judge
    concluded that for South African law the correct test to apply was
    the reasonable suspicion test. At page 695 the learned Judge stated
    the following:








'It is the right
of the public to have their cases decided by persons who are free not
only from fear but also from favour. In the end the only guarantee of
impartiality on the part of the courts is conspicuous impartiality.
To insist upon the appearance of a real likelihood of bias would, I
think, cut at the very root of the principle, deeply embedded in our
law, that justice must be seen to be done. It would impede rather
than advance the due administration of justice. It is a hallowed
maxim that if a judicial officer has any interest in the outcome of
the matter before him (save an interest so clearly trivial in nature
as to be disregarded under the de minimis principle) he is
disqualified, no matter how small the interest may be. See in this
regard the remarks of Lush J in Sergeant and Others v Dale
(1877) 2 QBD 558 at 567. The law does not seek, in such a case, to
measure the amount of his interest. I venture to suggest that the
matter stands no differently with regard to the apprehension of bias
by a lay litigant. Provided the suspicion of partiality is one which
might reasonably be entertained by a lay litigant a reviewing Court
cannot, so I consider, be called upon to measure a nice balance the
precise extent of the apparent risk. If suspicion is reasonably
apprehended then that is an end to the matter.'








  1. This exposition of the
    law was overall accepted, also by the Constitutional Court of South
    Africa. (See,inter alia, Moch v Nedtravel, supra; 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); S v Khala1995 1 SACR 246 and S v Basson2007 (1)
    SACR 566 (CC). In the latter instance the Court was of the opinion
    that it would be more correct to formulate the test as a ‘reasonable
    apprehension’ of bias rather than a ‘reasonable
    suspicion’ because of the many nuances associated with the
    word ‘suspicion’.









  1. On the basis of these
    and other authorities this Court,too, concluded in Christian v
    Metropolitan Life Namibia Retirement Annuity Fund and Others
    2008
    (2) NR 753 (SC) 769 in fine at par [32] that the test for the
    recusal of a Judge is ‘whether a reasonable, objective and
    informed person would on the correct facts reasonably apprehend that
    the Judge has not or will not bring an impartial mind to bear on the
    adjudication of the case’.Art. 12 of our Constitution clearly
    lays down that all persons shall be entitled to have their disputes
    adjudicated upon by an impartial and independent Court. That goes
    for civil as well as criminal cases. The reason for this is not far
    to seek. Impartiality and objectivity of Judges lie at the root of
    the independence of the judiciary and the respect it commands as an
    organ of State. The application of the principle justice must not
    only be done but also be seen to be done has over many years formed
    the cornerstone of judicial approachfor Judges in fulfilling of
    their arduous duties, even before the advent of Bills of Rights. It
    is against this backdrop, and seen in the light of emerging
    constitutional provisions safeguarding specifically the rights of
    persons, that the less exacting test of a reasonable apprehension
    finds its niche, more so than the more exact test of a real
    likelihood of bias. In the BTR-case the learned Judge
    referred with approval to what was stated in this regard by Edmund
    Davies LJ in the matter of Metropolitan Properties Co (FGC) Ltd v
    Lannon and Others
    1968 3 All ER 304 (CA) at 314 C-D, namely:








'With profound respect to those who
have propounded the “real likelihood”test, I take the
view that the requirement that justice must manifestly be done
operates with undiminished force in cases where bias is alleged, and
any development which appears to emasculate that requirement should
be strongly resisted.'







I respectfully agree with
what was stated by Edmund Davies LJ.








  1. The onus is on an
    applicant for recusal to show a reasonable apprehension that the
    Judge would be biased. (See Christian v Metropolitan Life Namibia
    Retirement Annuity Fund and Others, ibid;S v Ismail and Others

    2003 (2) SACR 479 at 482i;South African Commercial Catering and
    Allied Workers Union v Irvin and Johnson
    2000 (3) 705 (CC) at
    714A and President of the Republic of South Africa and Others v
    South African Rugby Football Union and Others, supra,
    at 177.)
    The test is an objective one and the cases further point out that in
    order to succeed an applicant will have to show not only that the
    apprehension is that of a reasonable person but that it is also
    based on reasonable grounds. The requirement of reasonableness is
    therefore two pronged. (See SACommercial Catering and Allied
    Workers
    –case, supra,at para[14].)









  1. In the matter of Moch,
    supra,
    p 13, the Court stated that judges should, when hearing
    an application for their recusal, not be unduly sensitive and should
    not take such application as a personal affront. A Judge should,
    however, not recuse himself where the reasons for the application
    are frivolous. (See Christian v Metropolitan Life Namibia
    Retirement Annuity Fund and Others, supra
    at 770D-F para
    [33];South African Motor Acceptance Corporation (Edms) Bpk v
    Oberholzer
    1974 (4) SA 808 (T) at 812.)









  1. The cases further draw a
    clear distinction between instances where the bias arises as a
    result of outside factors and instances where a litigant complains
    of the conduct of the Judge during the trial itself. (See S v
    Silber
    1952 (2) SA 475 (A) at 481 C-H; S v Khala1995 (1)
    SACR 246(A) at 252e and S v Basson2007 (1) SACR 566 (CC) at
    594h. Because of the presumption of impartiality on the part of the
    Judge it was stated in the Basson-case that such presumption
    was not easily dislodged and that the instances where bias was
    claimed as a result of the conduct of the Judge during the trial
    itself, were indeed rare. (Compare also the dictum of L'Heureux-Dube
    J and McLachlin J in R v S (RD)(1997) 118 CCC (3d) 353 [1997]
    3 SCR 484 (SCC); 151 DLR (4th) 193) in para 117 quoted with approval
    in Christian v Metropolitan Life Namibia Retirement Annuity Fund
    and Others, supra,
    at 769D-G para [32].) In regard to these
    cases it was also said that a reasonable litigant would be aware of
    the presumption and would take that into consideration. (See S v
    Jaipal
    2005 (1) SACR 215 (CC).








The grounds for the
recusal application




  1. The words complained of,
    and which triggered the application for the recusal of the Judge,
    appeared in the judgment delivered in regard to the challenge to the
    High Court’s jurisdiction. In deciding that the High Court had
    jurisdiction to try the accused persons, the learned Judge relied on
    this Court’s decision in the matter ofS vMshwena and Others
    where a similar challenge was raised against the jurisdiction of
    the Court. It was there decided that to have jurisdiction a Namibian
    Court need not enquire into the reasons why the accused personshad
    been deported from the foreign country or whether that country had
    complied with its own laws in so deporting the applicants. However,
    the learned Trial Judge in this appeal matter went on to say –




'The impression conveyed by the
evidence of the accused and the inference I draw from the omission of
dates from accused 11’s plea explanation is that they were all
untruthful on their whereabouts between the dates of their entry into
Botswana and expulsionfrom Botswana. This lends credence to the
evidence of the police that they had information of these accuseds’
presence in Caprivi during the period that they allege they were in
Botswana. Therefore, the balance of probability favours the State
version as supported by the documentary evidence.'(My emphasis.)









  1. Accused 1 to 7, 9, 10and
    12 filed affidavits in support of the recusal application. In these
    affidavits they stated, inter alia, that the evidence as to
    their whereabouts after they had entered Botswana was crucial to
    their defence of an alibi in the main trial. Given the fact that the
    presiding Judgehad rejected this evidence during the
    plea-proceedings as ‘untruthful’, they could not see how
    he would change his mind and believe them when they would present
    this evidence again as part of their defencein the main trial. They
    went on to state that they wereharbouring
    a reasonable suspicion that the learned judge would be biased
    against them and that they would not get a fair hearing. Coupled to
    this objection was also the credibility finding which the presiding
    Judge had made by implication when he accepted the police evidence
    that the State had information that the accused persons were in
    Namibia during the period that they said they were in Botswana.








The submissions by
counsel




  1. Mr. Tjombe submitted
    that the finding by the Court in the preliminary proceedings that
    the appellants had been untruthful about their whereabouts after
    entering Botswana and when they were deported from Botswana, dealt a
    ‘final blow’ to their defence of an alibi which they
    were to raise in the trial. With reference to various cases Mr.
    Tjombe submitted that the inquiry should be whether the finding of
    the trial Judge during the preliminary proceedings would leave a
    right-thinking observer or litigant with the impression that the
    trial Judge would be biased when considering the veracity of their
    alibi-defence to be raised at the trial. Counsel further submitted
    that where the trial Judge had made anadverse finding on the
    credibility of the appellants and afavourablefinding
    on the credibility of the State witnesses during the jurisdiction
    application, and thus effectively dismissing the intended defence of
    the appellants of an alibi, the appellants were reasonable in their
    apprehension that the trial Judge would not be impartial for the
    remainder of the trial, particularly on the crucial aspect of their
    defence even before it was properly tested under cross-examination.
    Although counsel conceded that this Court would be entitled to look
    at all the evidence presented in the matter and then decide the
    issues, he also submitted that the damage done by the finding of the
    Court a quoto the appellants’ right to a fair trial was
    irreparable. In this regard counsel referred the Court to cases such
    as R v Milne and Erleigh (6) 1951 (1) SA 1 (A) at 6H and S
    v Molimi
    2008 (2) SACR 76 (CC). It seems to me that counsel’s
    concession must be read subject to the qualification that this was
    an instance where this Court could not sever the bad from the good
    as the adverse findings by the Court a quo were in breach of
    a fundamental principle, namely the right to a fair trial.









  1. Various other points
    were also raised by MrTjombe in support of his submission that there
    was a reasonable apprehension that the Judge would be biased against
    the appellants. Because of the conclusion to which I have come it is
    not necessary for me to deal with these issues.It, nevertheless,
    seems to me that there would have been more force in the submissions
    of counsel had the issues complained of by him been raised by the
    appellants when they were recalled to the Court.However, on being
    questioned by the Court, they stated either that the case had
    nothing to do with them or that they should have been granted legal
    representation. In regard to the latter reason, it must be noted
    that they knew full well that they could apply to the Director of
    Legal Aid to provide them with legal representation. The Court even
    gave them an opportunity to do so but they squandered it by applying
    for a legal representative to sue the Government of Namibia and not
    for someone to represent them in the criminal trial. This was a case
    which was heard over a period of some years. However, the
    appellants, through their conduct and their attitude completely
    divorced themselves from the trial and failed to make any meaningful
    contribution. To that extent they have only themselves to blame.









  1. Mr Small, appearing for
    the respondent, devoted much of his time setting at rest the other
    so called irregularities on which MrTjombesought to rely to
    demonstrate and to support his submission that the Judge was biased.
    In regard to the findings of the Judge that the appellants were
    untruthful concerning their whereabouts after they had entered
    Botswana and when they were deported by that Country, counsel
    submitted that the Court of Appeal should look at all the evidence
    and, if it nevertheless came to the conclusion that the trial had
    been fair, then it should not set aside the proceedings. This it
    must do by excising the bad parts and, if what remained, still
    proved beyond reasonable doubt that the accused had committed the
    crimes charged, to give effect to that finding. This was illustrated
    by counsel by saying that, although there might have been a
    reasonable suspicion that the Judge would be biased, that perception
    might have been wrong and,for that reason, the Court of Appeal must
    look at all the evidence and if it concluded that the trial was fair
    caeditquestio. Secondly, counsel submitted that the issue of
    the alibis of the appellants was not part of the jurisdiction
    proceedings and that the Court a quo merely mentioned this in
    passing as it was completely unnecessary to make such a finding in
    the jurisdiction proceedings. Counsel further submitted that it was
    explained by the Court, in its recusal judgment, that the State had
    to prove the accused’scommission of the crimes beyond
    reasonable doubt. There was no onus on the appellants and, if there
    was a reasonable possibility that their evidence might be true, they
    would be entitled to be acquitted. Thirdly, counsel submitted that
    the indictment alleged that high treason was committed during the
    period from September 1998 up to 12 December 2003. From their
    affidavits in the jurisdiction proceedings it appeared that during
    September 1998 they were all still in Namibia. Therefore, so counsel
    submitted, they were covered by the period alleged in the charge
    sheet, whereas their so-called alibi evidence did not cover them for
    this whole period.Consequently, so it was submitted, the finding of
    the Court a quo did not even give rise to a reasonable
    perception of bias and the application for recusal was merely a
    technical application brought after a judgment had been given
    against them. If I understood counsel correctly, he submitted that
    if the appellants were proved to have been in Namibia still during
    the period covered by the indictment, but prior to their entryinto
    Botswana,then their claim to an alibi was of no assistance to them
    and the finding of the Court a quo in this regard had no
    effect upon their defence.









  1. During argument Mr Small
    conceded that the sentencing proceedings in the Court a quo were
    irregular and counsel requested the Court to refer that part of the
    proceedings back to the High Court to hear evidence and/or argument
    in regard to those proceedings. Because of the conclusion to which I
    have come, I need not deal with the third point of argument raised
    by Mr Small.








The findings by the
Court a quo.




  1. Mr. Ndauendapo who, at
    the time of the recusal application, still represented some of the
    appellants in the Court, relied on S v Dawid1991 (1) SACR 375
    (Nm) and, so it seems, as a case in point where the Judge recused
    himself because of a prior adverse finding on the credibility of the
    accused who had previously been a witness in a different case.
    Although the Judge found that the Dawid-case covered all the
    points and arguments advanced for and against his recusal, he
    concluded that the case was distinguishable on various points. With
    reference to the words complained of in the jurisdiction judgment,
    the Judge stated that the excerpt was quoted out of context and the
    Judge went on to quote the full paragraph which the excerpt formed
    part of. Furthermore, the Judge stated that the appellants
    completely misunderstood and confused the nature of the jurisdiction
    proceedings. Their evidence that they had not left the refugee camps
    in Botswana or that they had not entered or re-entered Namibia
    during their stay as refugees in Botswana was totally irrelevant to
    the issue for determination in the jurisdiction proceedings. The
    jurisdiction proceedings were not a trial and to have drawn any
    conclusion that thefindings relied on by the accused to suggest that
    the Court might be biased was consequently wrong.The Court stated
    that in the trial to come it would not be necessary to change his
    mind about his finding in the jurisdiction proceedings because that
    finding was water under the bridge. It seems that the Judge was here
    referring to his finding that the Court had jurisdiction to hear the
    matter. The Judge stated that what the State would have to prove in
    the main trial was that the accused persons were present at the
    scene where the offence was committed. The Judge stated that where
    the accused might or might not have been would be totally
    irrelevant. Consequently, the accused’s concern about their
    credibility on the question of their whereabouts at the relevant
    time or times was unfounded. The Judge referred to the principle
    that in a criminal trial there was no onus on an accused and if
    there was a reasonable possibility that his evidence might be true,
    he should be acquitted. The Judge went on to say that it was
    therefore irrelevant whether the evidence of the accused was
    believed or not believed, unless the evidence was beyond reasonable
    doubt proved to be false, there was still the possibility of an
    acquittal. The Judge then concluded that there was no substance in
    the application for his recusal. The application was fanciful and
    was not rooted in reasonable perceptions of bias. A Court should
    guard against an application which is based on whims or sudden
    fancies, so the trial court concluded.








Should the Trial Judge
have recused himself?




  1. In my opinion this is an
    instance where the Judge should have recused himself. After the
    appellants had given evidence in the jurisdiction proceedings, it
    must have been clear that their main defence was that they could not
    have committed the crimes for which they were charged because, once
    they had entered Botswana, they did not leave again and they never
    returned to Namibia during the period mentioned in the indictment.
    It was specifically on this evidence that the Judge came to the
    conclusion that theyhad all been untruthful. This finding was made
    by the Judge immediately after he had dealt with the evidence of the
    appellants so that the chance that this was only a passing remark
    could be ruled out. This was a specific finding on the truthfulness
    of the appellants in regard to their evidence that after their entry
    into Botswana they did not return to Namibia.It was of no comfort to
    them to be told later during the recusal judgment that they need not
    concern themselves with this finding because, even if they had been
    lying there was still the possibility of an acquittal because there
    was no onus on them and their story might still be accepted as
    reasonably possibly true.









  1. It seems to me that in
    an instance where the finding of untruthfulness made at the outset
    of a trial on an issue whichis at the heart of an accused’s
    defence,the dividing line between what is false and what may
    reasonably be true becomes somewhat blurredfrom the perspective of
    an accused person. In my opinion it is also a fallacy to argue that,
    because the finding of untruthfulness was irrelevant to the
    particular issue which the Court had to decide in the jurisdiction
    proceedings, it may simply be ignored. In the circumstances of this
    case, the finding of the Court cannot be compartmentalised and the
    books closed on the finding that the Court had jurisdiction. The
    jurisdiction proceedings were part and parcel of the main trial. The
    Judge who sat in the jurisdiction proceedings also sat in the main
    trial and the accused in those proceedings were still the same in
    the main trial and so was their defence.









  1. This brings me to the
    case of S v Dawid.In this case the presiding Judge (O’Linn
    J) sometime, after the commencement of the case, realised
    that the accused, who was charged with murder, was the same person
    who had earlier given evidence in a diamond trapping case (S v Da
    Costa and Others) -
    which had also been heard by the learned
    Judge and in respect of whom the learned Judgehad made an adverse
    finding of credibility. Because the credibility of Dawid was an
    issue in the Da Costa-case and was again a crucial issue in
    the murder case,the learned Judge came to the conclusion that in the
    circumstances the accused could harbour a
    reasonable fear that the trial Judge would perhaps again be inclined
    to reject his evidence in his own trial. The Judge thereupon recused
    himself.









  1. The Judge a quo
    decided that there were some important factors which distinguished
    the Dawid case from the present matter. These were:








Firstly, the Dawidcase
concerned the issue of credibility in two separate trials presided
over by the same judge.







Secondly, the proceedings in both the
Da Costa and the Dawid cases were criminal trials in
which the innocence or guilt of the accused was the sole issue and
the result dependent on the credibility of Dawid.







By contrast, the present matter
concerns a judgment by which the Court dismissed the accused’s
special pleas on jurisdiction and the question of the innocence or
guilt of the accused applicants on any offence did not arise because
this was not the purpose of the hearing.







Thirdly, Dawid’s credibility was
crucial in the Da Costa trial because in that trial he had
given evidence as a State witness. His credibility was equally
crucial in his own trial because he was an only witness and he
testified that he killed in self-defence. The learned Judge’s
involvement in the Da Costa trial did not involve giving an
opinion in the course of the trial but returning a positive finding
dependent largely if not solely on Dawid’s credibility as a
State witness.’








  1. With due respect to the
    finding by the learned Judge, I am satisfied that in principle there
    is no basis on which to distinguish the Dawid–case from
    the present case.The fact that in the Dawid–case the
    findings of credibility were made in two separate cases does not
    distinguish the case from the present case. If by that it is said
    that when the findings of credibility concern the same case it would
    not have the same effect, then I cannot agree. (See S v Somciza
    1990 (1) SA 361 (A).) In my opinion the case is stronger where the
    adverse credibility findings were made in the same case because it
    showed an attitude which was applicable to the further adjudication
    of that very case. The second distinguishing feature referred to by
    the Court has to do with the notion that the complained words were
    part of a judgment which did not directly deal with credibility and
    which was not the issue in that part of the trial. I have already
    dealt with that issue herein before and in my opinion an adverse
    finding on the credibility of the appellants cannot be ignored
    simply because it formed part of a separate judgment more
    particularly because that very issue was still to be decided. The
    finding may not have been relevant to the issue of jurisdiction but
    it was relevant to the trial where the same Judge had to decide the
    credibility of the same accused persons whose defence was the same.
    The third distinguishing factor is again based on the fact that the
    previous issue was only a findingby the Court in an interlocutory
    matter and did not involve positive findings on credibility. I
    cannot agree that this would distinguish the present case from the
    Dawid–case as far as the issue of an apprehension of
    bias is concerned.









  1. The Court a quo also
    relied on the case of R v T1953 (2) SA 479 (A)in which it was
    held that ‘there is no rule in South Africa which lays down
    that a Judge in cases other than appeals from his judgments is
    disqualified from sitting in a case merely because in the course of
    his judicial duties he has previously expressed an opinion in that
    case’(482G-H). In the matter of SA Commercial Catering and
    Allied Workers Union v Irvin and Johnson Ltd (Seafoods Division Fish
    Processing)
    2000 (3) SA 705 (CC) at para [37] doubt was
    expressed whether what was stated in R v T was still good law
    today where a judicial officer ‘had already in the earlier
    trial decided an issue that was “live and significant”
    in the second trial’. I, with respect, share this viewwhere
    findings of fact had been made.









  1. The submission by Mr
    Small that the affidavits of the appellants in the jurisdiction
    proceedings showed that they only left Namibia after the date
    alleged in the charge sheet, namely September 1998, and that they
    could therefore not have raised a reasonable perception of bias
    cannot be accepted. In this regard the learned Judge made a specific
    finding that their evidence as to where they had been during the
    period between the dates when they left Namibia and were deported
    back to Namibia was untruthful. The finding therefore covers
    specifically the period that they said they had not been in Namibia.









  1. Mr Small’s
    submission that, even where a reasonable perception of bias exists,
    that perception may be proved to be wrong after the
    appellatecourt,having considered all the evidence, comes to the
    conclusion that the trial was fair in every respect, and should then
    uphold the conviction, is in my opinion an application of the overly
    stringent ‘real likelihood’ of bias test. It negates the
    principle that justice must manifestly be done. As was stated in S
    v Roberts
    1999 (2) SACR 243(A) at 253b-c the real likelihood test
    depends on the view from the Bench whereas the reasonable
    apprehension test depends on the view from the dock.









  1. I agree with the law as
    submitted by MrTjombe and I have therefore come to the conclusion
    that in the mind of a reasonable litigant,the finding by the Court
    that the appellants were untruthful as to their whereabouts after
    they had entered Botswana and were deported to Namibia,would raisea
    reasonable apprehension that the Court would be biased against them
    when the same issue would again be raised during their defenceon the
    merits against the charges. I am also satisfied that this
    apprehension was based on reasonable grounds.









  1. The question that
    remains is whether the damage done is irreparable to such an extent
    that it vitiates the whole proceedings or whether the Appellate
    Court can sever the bad from the good and, after re-assessment of
    the remaining evidence,besatisfied that the evidence remaining still
    proves the complicity of the appellants in the commission of the
    crime, dismiss the appeal. (See Take & Save Trading (CC) and
    Others v Standard Bank SA Ltd
    2004 (4) SA 1 (A) at par[4].)








[35] This is not an
instance where the Court a quo expressed itself during the
proceedings in regard to the credibility of a single witness and
where the Court of Appeal could then excise such evidence and look at
what remained in order to decide the appeal. (SeeS v Molefe1962
(4) 533 (A) andS v Shikunga and Another1997 NR 156 (SC).) In
this instance the finding of the Court a quo concerns the
evidence of the appellants which evidence sets out their defence to
the charges against them. Under the circumstances I am of the opinion
that it would not be possible for this Court to sever the good from
the bad to see if what remained still proved the complicity of the
appellants in the commission of the crime. A further complication is
the fact that, after the dismissal of their recusal application, the
appellants completely distanced themselves from the trial and did not
give evidence in their defence.








  1. I have herein before
    mentioned the fact that an allegation of bias which has arisen
    during the proceedings is rarely upheld because of the presumption
    of impartiality of the Judge. This is illustrated by cases such as R
    v Silber, supra,
    and S v Basson, supra.To this I must add
    that neither of these cases concerns a premature expression in
    respect of the credibility of the accused or their witnesses.









  1. In any event the above
    test can only apply in circumstances where the damage done is not
    irreparable to such an extent that it vitiates the whole
    proceedings. Where the proceedings are vitiated it matters not that
    the evidence may prove the commission and complicity of the
    appellant in the crime charged. There can be no re-assessment of the
    evidence where that is the case. Under what circumstances then will
    a Court of Appeal hold that the damage done was irreparable in a
    particular instance?








  1. In the matter of S
    v Somciza, supra,
    the accused was convicted
    by the magistrate but before sentence was imposed the matter went on
    appeal. The appeal succeeded and the matter was referred back to the
    magistrate’s court to be heard
    de novo.
    The magistrate who sat in first instance was of the
    opinion that he was competent to sit again after the matter was
    referred back. There was another appeal and the proceedings were
    again set aside. The Court of Appeal set aside the proceedings on
    the basis that the magistrate had made some strong findings of
    credibility in regard to the State’s witnesses, whose evidence
    the magistrate had accepted when he convicted the accusedin the
    first trial. In upholding the appeal the Appeal Court stated (at

    365H – 366A)as follows:








'However dispassionately the
magistrate might feel he would be able, because of his judicial
training, to weigh up the evidence afresh once he has heard the
appellant's evidence, the appellant is, understandably, unlikely to
feel complacent about his prospects of receiving a fair trial before
that magistrate.'








  1. A further matter which
    is in my opinion relevant in this regard is the case of SA
    Commercial Catering and Allied Workers Union and Others v Irvin and
    Johnson.
    The facts of the case are correctly set out in the
    headnote which reads as follows:








Certain of the respondent's
employees had participated in industrial action (the first matter),
which resulted in some being dismissed and others being given final
written warnings. Subsequent thereto there was protest action against
these dismissals (the second matter), which resulted in further
dismissals, including employees to whom final warnings had been
given. Separate proceedings arising out of this action were
instituted in the industrial court. Both matters were then referred
to the Labour Appeal Court (LAC), with the second matter being heard
first. The LAC found in favour of the respondent, with the Court
reciting evidence which was uncontested in that case, but which was
in issue in the first matter. When the first matter came before the
LAC, two of the Judges who had heard the second matter were due to
preside over the appeal. The applicants brought an application for
the recusal of those Judges. The application was refused, with the
LAC finding, inter alia, that the issues in the two cases were not
identical. The applicants then applied for a certificate to apply for
leave to appeal to the Constitutional Court, but were granted a
negative certificate by the LAC. They then lodged an application for
leave to appeal to that Court, which heard the application together
with the merits of the appeal. During the course of argument the
applicants advanced different grounds for recusal from those advanced
before the LAC.’








  1. In their application for
    leave to appeal the applicants in the Irvin and Johnson-case
    alleged that the issues decided in the second trial and the
    witnesses were identical to thosebefore the LAC in the first trial.
    It was also alleged that in the first trial the evidence ofone Ms
    Holland, an official of the Union, was rejected. The applicants also
    widened the scope of their attack by referring to certain remarks
    expressed in the judgment of the first trial which they said
    amounted to criticism of the Union. On appeal the Constitutional
    Court found that it was not permissible to advance different grounds
    for recusal from those advanced before the LAC as the LAC had no
    opportunity to deal with the new issues. It further found that the
    issues in the second trial were not identical to those of the first
    trial and that those issues were left uncontested in the first
    trial. The Court further found that although the evidence of Ms
    Holland was criticisedin the first trial, it was not rejected. The
    Constitutional Court consequently allowed the applicants leave to
    appeal but dismissed the appeal.









  1. During the course of his
    judgment Cameron AJ, who wrote the majority judgment, referred with
    approval to the case of the High Court of Australia, namely Livesey
    v The New South Wales Bar Association
    (1983) l5l CLR 288 and
    remarked that this case illustrated how high the threshold was that
    a litigant had to pass in order to succeed with an application of
    bias based on conduct of a Judge during the proceedings. In para[32]
    the Court said the following:








The high threshold a litigant
must pass in a trial alleged to involve the same issues or witnesses
was usefully formulated in
Livesey
v The New South Wales Bar Association
,
where "the central issues" in the case had already been
determined by the Judges whose recusal was sought, and they had
expressed a "strong view" destructive of the credibility of
a witness crucial to both hearings. In finding that the Judges in
question should have recused themselves, the High Court of Australia
stated as far as trial proceedings are concerned that a fair-minded
observer might entertain a reasonable apprehension of bias by reason
of prejudgment







". . . if a Judge sits to hear a
case at first instance after he has, in a previous case, expressed
clear views either about a question of fact which constitutes a live
and significant issue in the subsequent case or about the credit of a
witness whose evidence is of significance on such a question of
fact."(p 300).’



(The test for bias in
Australia is the same as that laid down by the cases here and in
South Africa, although they also favour the word ‘apprehension’
over the word ‘suspicion’. See the Livesey-case,
supra, at 293 to 294.)








  1. Referring to the test in
    the Livesey-case, and applying that test, the learned Judge
    remarked as follows in para [33]:








[33] As will appear below, this
test cannot be applied without reservation to appellate proceedings,
where the presumption of impartiality has an added practical force.
Assuming, however, in favour of the applicants that the test for
trial proceedings is applicable, the question is whether there is "a
live and significant issue" in the pending appeal on which (or
about the credibility of a witness significant to which) the Judges
in question expressed "clear views" in Nomoyi. The answer
must, in my view, be No. The logic of the Labour Appeal Court's
ruling that the issues in the two cases are not identical, and that
credibility findings directly adverse to the union were not made in
Nomoyi, is difficult to assail and MrBrassey made only a circumspect
attempt to do so.’







The reference to Nomoyiis
a reference to the first trial. The reservation mentioned by the
learned Judge in regard to appellate proceedings had to do with the
nature of such proceedings and the fact that such Judgeswere more
experienced. As a result the presumption of impartiality applies with
added force in the case where an application for recusal is brought
concerning an Appellate Judge or Judges. (See paras [41] and [42] of
the judgment.) In the present matter this reservation is not
relevant.








  1. The principle which was
    established in the SA Commercial Catering-case as well as in
    the S v Somciza-case is that a Judge should recuse himself if
    he had previously expressed himself in regard to an issue or the
    credibility of a witness which was still live and which was of real
    or significant importance in the matter now before him. (See also
    Take & Save Trading (CC) and Others v Standard Bank of South
    Africa Ltd, supra,
    para 17 and S v Dawid.)









  1. There can in my opinion
    not be any doubt that the issue of the defence of the appellants was
    still alive issue and that it was important and significant. The
    finding concerned the credibility of the appellants in regard to
    their evidence that they were not in Namibia since they had left the
    country for Botswana and until they were deported by that country,
    and that they could therefore not have committed the crimes with
    which they were charged. That the Court’s finding in this
    regard was not one made per incuriam is further clear from
    the fact that the learned Judge did not state so in his recusal
    judgment and further that this finding was used to elevate the
    hearsay evidence of Cst. Kambungo, namely that there was evidence
    that the appellants had been back in Namibia after their departure
    from the Country, to real and believable evidence. The Court
    accepted that Kambungo was telling the truth when he said so. The
    Court therefore not only rejected the alibi evidence of the
    appellants but also accepted that, in contrast to what they said,
    the State had at its disposal evidence to the contrary.









  1. The impartiality of a
    Judge goes to the heart of a matter and is fundamental to a fair
    trial. In the matter of S v le Grange and Others2009 (1) SACR
    125 (A) at 151a it was stated that bias denotes a mind that is in
    some way predisposed to a particular result, or that is closed with
    regard to particular issues and not perfectly open to conviction. In
    my research I have not come across a case where the Judge has,
    during the proceedings, made an adverse credibility finding which
    directly affects the defence of an accused whilst that issue was
    still live and it seems to me that no re-assessment of the evidence
    is, first of all, possible and secondly would cure the damage done
    thereby. I am therefore of the opinion that the refusal by the Judge
    to recuse himself render the continuing of the proceedings a nullity
    and that the appeal must therefore succeed.









  1. The question is now
    whether this Court must refer the matter back to the High Court to
    start proceedings afresh or whether it should be left to the
    Prosecutor-General to decide what to do. In the Le Grange-case,
    supra, the Court referred to what was said by Holmes JA, in
    regard to irregularities committed during the proceedings, in S v
    Naidoo
    1962 (4) SA 348(A) at 354D-F, as follows:








Broadly speaking they fall into
two categories. There are irregularities (fortunately rare) which are
of so gross a nature as
per
se
to vitiate the trial. In
such a case the Court of Appeal sets aside the conviction without
reference to the merits. There remains thus neither a conviction nor
an acquittal on the merits, and the accused can be re-tried in terms
of sec 370(c) [now s 324] of the Criminal Code. That was theposition
in
Moodie's
case, in which the irregularity of the deputy sheriff remaining
closeted with the jury throughout their two hour deliberation was
regarded as so gross as to vitiate the whole trial.







On the other hand there are
irregularities of a lesser nature (and happily even these are not
frequent) in which the Court of Appeal is able to separate the bad
from the good, and to consider the merits of the case, including any
findings as to the credibility of witnesses. If in the result it
comes to the conclusion that a reasonable trial Court, properly
directing itself, would inevitably have convicted, it dismisses the
appeal, and the conviction stands as one on the merits. But if, on
the merits, it cannot come to that conclusion, it sets aside the
conviction, and this amounts to an acquittal on the merits. In such a
case sec 370(c) of the Code does not permit of a re-trial.’







In the Le Grange
matter the Court then continued to state at p156 para [21]:







Plainly, the irregularity
encountered here falls into the first category alluded to by Holmes
JA in
Naidoo.
The possibility of double jeopardy thus does not arise and the
institution of a new trial will not infringe s 35(3)(m) of the
Constitution. There remains a pressing societal demand for and
compelling public interest in, what after all is a case involving a
most serious charge. The right of an accused to a fair trial, as the
Constitutional Court has observed in
S
v Jaipal
, "requires
fairness to the accused, as well as fairness to the public as
represented by the State. It has to instill confidence in the
criminal justice system with the public, including those close to the
accused, as well as those distressed by the audacity and horror of
crime." There will accordingly be a miscarriage of justice
should a proper trial not ensue. It follows that the matter must be
remitted to the High Court for retrial in accordance with s 324 of
the Criminal Code.’







(See also our s 324 of
Act No 51 of 1977, which seems to be to the same effect.)








  1. What was stated in
    regard to the type of irregularity in the Le Grange-case is
    also relevant to the present case. Here also the irregularity falls
    within the first category mentioned by Holmes, JA, in the
    Naidoo-case. In deciding on the most appropriate course of
    action to follow, this Court must be mindful that the crime of high
    treason with which the appellants were charged is of a very serious
    nature. It is generally acknowledged (amongst others, by Milton in
    The South African Criminal Law and Procedure, Vol. 2 (3rd
    ed.) pp 2-3) that it isthe ‘(f)irst among public crimes, in
    order of origin and gravity’ and that society hascriminalised
    treasonous conduct to protect its members,that
    collectivelyconstitute the State, from violent attack; to protect
    the organs and institutions of State from violence and coercion and,
    finally, to protect the democratic character of the State and its
    constitution from destruction. This consideration must be accorded
    due weight in considering whether it may not be in the interest of
    justice to remit the matter to the High Court for retrial.









  1. However, this is not the
    only consideration. I have also considered the duration of the
    appellants’ detention as trial-awaiting suspects and as
    accused persons during the trial itself - as well as the period of
    their incarceration after the conviction to be set aside by this
    judgment –in assessing the most appropriate course to follow.
    I have no doubt that the limitation of their freedom for that period
    has caused – and is still causing – them great
    hardship.This consideration raises the question whether it would not
    be more appropriate to simply allow the appeal and leave it to the
    Prosecutor-General to decide whether they (or any one or more of
    them) should be prosecuted again and, if so, on which charges. In
    that event, the appellants would be entitled to their immediate
    release from custody.









  1. After reflection on
    these and other considerations, I have concluded that, in the
    interest of the administration of justice, the considerations of
    personal liberty must in this instance yield to the interest of
    society, as a collective, in the security of the State, its organs
    and institutions; in the safety of its people and in upholding the
    constitutional values that unify us as a Nation. In arriving at this
    conclusion, I had to consider that the charges formulated in the
    indictment are not mere allegations but that it is also evident that
    the State possessesstatements by numerous witnessesprima facie
    implicating the appellants. I must hasten to say that, although
    an important consideration in determining the appropriate course of
    action to be taken by this Court, the veracity of that evidence must
    still be tested under cross-examination and be assessed within the
    totality of evidence to be adduced – including those of the
    appellants, if any – in the course of a fair trial by an
    independent, impartial and competent Court. Our Constitution demands
    no less. However, given the inevitable delay to be occasioned by the
    retrial of the appellants,the High Court must be urged to enroll the
    matter as soon as possible and to take such measures as it may deem
    appropriate to expedite the trial.









  1. In the result the
    following order is made:








1. The appeal succeeds.







2. The convictions and
sentences imposed on each of the appellants are set aside.







3. The matter is remitted
to the High Court for trial before another Judge on the original
charges, suitably amended where necessary, or upon any other
additional charges as if the appellants had not previously been
arraigned, tried and convicted.







4. The registrar of the
High Court is directed to re-enroll the matter by no later than 1
August 2013 and the appellants are to remain in custody until then.











________________________



STRYDOM AJA











________________________


SHIVUTE
CJ











________________________


MARITZ
JA


APPEARANCES






















APPELLANTS



NTjombe


Instructed
by the Directorate of Legal Aid











RESPONDENT:




D F Small (with him A
Lategan)


For
the State