Dichaba v Regional Court Magistrate, Vryburg and Another (M312/2019) [2022] ZANWHC 35 (14 July 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: M312/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrate: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

KEAOBAKA DICHABA APPLICANT

and

REGIONAL COURT MAGISTRATE, VRYBURG 1st RESPONDENT

THE STATE 2nd RESPONDENT

REVIEW APPLICATION

CORAM: PETERSENJ;GURAJ

ORDER

1. The application that:

1.1 the order in terms of which the first respondent recused himself from the criminal trial under case number VRC/139/13, be reviewed and set aside, is dismissed.

1.2 the order in terms of which the first respondent ordered the trial to commence de novo is reviewed and set aside.

1.3 the proceedings under case number VRC/114/14, which resulted from the order that the trial commence de novo, is declared invalid and set aside.

1.4 the proceedings under case number VRC/139/13 be re­ instated and referred back to the first respondent to deliver judgment on an application by the State before the first respondent's recusal and order that the trial commence de novo, and continuation of the trial, is dismissed.

1.5 the trial is to commence de novo before another Regional Magistrate.

UNIFROM RULE 53

REVIEW JUDGMENT

PETERSEN J

Introduction

[1] This review application was initially enrolled on 01 November 2019. It has been removed from the roll on no less than four (4) occasions as the papers were not in order. This Court heard the application on 10 June 2022. The applicant seeks relief in the following terms:

1. That the recusal decision and order of trial de novo by the Regional Court Magistrate Mr. Sevlall, in the Case No. VRC/139/13 be reviewed and set aside;

2. That the proceedings under Case No. VRC/114/14, which resulted from recusal and order de novo be declared invalid and set aside;

3. That the proceedings under Case No. VRC/139/13 be reinstated and referred back to the Regional Court Magistrate, Mr. Sevlall to deliver judgment on the application by the State before the Learned Magistrate recused himself and ordered trial de novo, and continuation of the trial.

4. Further and/or alternative relief."

Background and basis of the review application

[2] The background set out by the applicant in the founding affidavit may be succinctly summarized as follows. The applicant was charged under case number VRC/139/13, in the Vryburg Regional Court on the following charges:

2.1 Count 1: contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (rape), alleged to have been committed between 17 and 20 August 2011;

2.2 Count 2: contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (rape), alleged to have been committed between 13 and 16 September 2012;

2.3 Count 3: contravening section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (sexual assault), alleged to have been committed between 27 and 30 September 2012;

2.4 Count 4: Robbery with aggravating circumstances, alleged to have been committed between 27 and 30 September 2012; and

2.5 Count 5: contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (rape), alleged to have been committed between 27 and 30 September 2012.

[3] Following the recusal of the first respondent, the applicant was tried de novo before another Regional Magistrate under case number VRC/114/2014. This case is said to be pending, awaiting finalization of the present review application.

[4] The circumstances alleged to have given rise to the recusal of the first respondent are set out as follows in the founding affidavit:

"5.ADFACTS

5.1. I appeared at the Regional Court, Vryburg from 10/12/2012 and subsequently on a number of occasions under Case No. VRC/139/13, facing above mentioned charges. Various factors and circumstances occasioned remands, however I will refer the court to those that are relevant for purposes of this application.

5.1.1 On 25/02/14 my case was postponed to 26/03/14 for obtaining DNA results.

5.1.2 Then on 26/03/14 the DNA results were not available and a further remand was granted for the same reason, to 22/05/14.

5.1.3 Once more, on 22105/14 the DNA results were not available and the case was postponed to 27/05/14 for DNA results and arrangement of trial date.

5.1.4 On 27/05/14 the case was postponed for copies of the docket and consultation to 30/05/14.

5.1.5 Then on 30/05/14 the case was declared trial ready and postponed to 16 July 2014 for trial. It should be pointed out that even then when the matter was declared trial ready, the DNA results were still not available. I therefore accepted it that the State wished to continue with the matter in the absence of any DNA results. It was also possible that the court would not be inclined to postpone the matter again for DNA results.

5.2 On the 16 July 2014, the trial started before the Hon. Regional Court Magistrate, Mr. Sevlall (1st Respondent) and the State led the evidence of about 6 witnesses.

Record p7 - 65

I should mention that even when the trial commenced, there was no DNA results and I prepared for my defense on the basis of the information provided to us then by the state.

5.2.1

The evidence was of the complainants and their witnesses in different charges preferred against me. It should be highlighted that none of them implicated me to the offences at hand and as such my Counsel did not have cross examination to them.

5.2.2

Of importance to note is that, not only did the complainants and their witnesses not implicate me in their viva voce evidence, but there was no evidence from the contents of the docket supplied to my Counsel that sought to implicate me when the trial so started.

5.3 At the end of the witnesses that the State had on that day, the State indicated to Court that he still wanted to call the Doctors who examined the complainants, the police Officer who picked up the exhibits because the State's case is going to be primarily reliant or dependent on DNA results.

Record p 65 lines 8 - 13

5.4 The State further indicated to court that I was refusing to submit to the taking of saliva samples by the Investigating Officer for purposes of confirming the preliminary DNA results linking me to the offences.

Record p 65 lines 18- 24

5.5 I gave my Counsel instructions to oppose this apparent application by the State to get me submit to the taking of saliva samples, on the basis that, on at least 3 occasions before the matter was declared trial ready, it has been postponed for the DNA results. On those occasions there was no issue of anything else outstanding but the results.

Record p 66 lines 2 - 8

At no state on previous occasions that the State indicated and or applied to Court that my saliva samples were sought and I was not cooperating with the Investigating Officer.

5.6 Then the Hon. Regional Court Magistrate (first Respondent) engaged the State around the issue of how the matter was set down for trial if my samples were not yet taken for DNA analysis and a dialog ensued in this regard.

Record p 66 lines 9 - 25

Record p 67 lines 1 - 25

Record p 68 lines 1 - 25

Record p 69 lines 1 - 25

Record p 70 lines 1 - 25

5.7 It is during the dialog between the State and the Court where the State indicated that:

“Your Worship the accused as he is standing here he is already convicted in another case which he just ... "

Record p 67 lines 10- 14

5.8 It would appear that because of that statement made by the State Prosecutor, the Learned Regional Court Magistrate was of the view that he ought to recuse himself and order trial de novo.

Record p 70 lines 19- 24

Record p 71 lines 15- 16

5.8.1

It has to be mentioned at this point that I align myself with the view adopted by the State in response to the recusal that, that disclosure had nothing to do with this case or the merits hereof.

Record p 70 lines 22 - 23

5.9.1

I am advised that this ground alone is not sufficient for the recusal and therefore the Learned Regional Court Magistrate committed a procedural error, which is to my prejudice."

[5] The applicant against the aforesaid circumstances avers in the founding affidavit that the recusal of the first respondent is prejudicial to him in that:

"6. The recusal by the First Respondent prejudices me in that:

6.1 There is likelihood that if the court gave a ruling on the application by the state to have my saliva drawn on 16 July 2014, at the back of a number of remands for availability of DNA results, that ruling would have been in my favor;

6.2 The trial de nova will further delay the already old case on the roll and in contravention of my constitutional right to a speedy trial;

6.3 Trial de nova would give the State an unfair second chance to retry me and by pass the inexplicable belated application for saliva samples which would have amounted to further investigations during the trial."

The submissions on behalf of the applicant

[6] The submissions on behalf of the applicant are essentially aligned with the following contentions in the founding affidavit:

"5.10 Firstly, the Court ought to have made a ruling regarding the application made by the State for my submission to saliva samples been taken, which application was opposed. The court rule on this aspect.

5.11 Secondly, there are no basis for recusal and trial de novo.

5.11.1 The mere mentioning that I was already convicted . . . is not relevant to the case at hand. The instant case has to be dealt with on its own merits.

5.11.2 It is a common knowledge that accused persons who are accompanied by members of Correctional Services to courts are invariable serving sentences and therefore convicted. But that knowledge does not, in the abstract, lead to recusal of Presiding Officers.

5.12 In the case of President of the Republic of South Africa And Others v South Africa Rugby Football Union And Others [1999] ZACC 9; 1999 (4) SA 147 (CC), at paragraph 48 the following yardstick was laid on recusal applications:

"The question is whether a reasonable, objective and informed person would on correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bare on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of Counsel. The reasonableness of the apprehension must be assessed in the light of Oath of office taken by the Judges to administer justice without fear of favor, and their ability to carry out that Oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact they have a duty to sit in any case in which they are not obliged to recuse themselves ... "

In the case of Sagar v Smith, 2001 [3] SA 1004 (SCA) at 1009, Mthiyane AJA as he then was said, "what is said in respect of Judge applies equally to a Magistrate".

5.12.1 It is my humble submissions in the light of the above mentioned cases, the Learned Magistrate would objectively be in a position to disabuse his mind of the disclosure by the state and deal with the matter accordingly. He probably acted out of emotions following the interaction with the State on this aspect and therefore recused himself without pronouncing on the application by the State

6. The recusal by the First Respondent is prejudices me in that:

6.2 The trial de novo will further delay the already old case on the roll and in contravention of my constitutional right to a speedy trial;

6.3 Trial de novo would give the State an unfair second chance to retry me and by pass the inexplicable belated application for saliva samples which would have amounted to further investigations during the trial.".

The circumstances giving rise to the first respondent's recusal

[7] The circumstances giving rise to the first respondent's recusal as referenced by the applicant in the founding affidavit at pages 65 to 71 of the transcribed record, are as follows:

"PROSECUTOR: Your Worship the State still intends to lead the evidence of the doctors who examined all three complainants and also the police officer who attended the scene who picked up the exhibits because the State's case is going to be primarily reliant or dependant on DNA results.

COURT: Ja it is late now, we can postpone.

Prosecutor: Yes that is what I am trying to do Your Worship.

COURT: We cannot go on anymore.

PROSECUTOR: However Your Worship I have got a problem with the accused, the accused is refusing blatantly to submit himself so that the investigating

officer could take just some samples of his saliva for purposes of confirming the preliminary DNA results which up to so far confirms

that he is linked to these three or all these offences which he was charged with.

COURT: Mr Nkhahle can address me on that. Mr Nkhahle?

MR NKHAHLE: Your Worship maybe if I may put this into proper perspective that the matter has been postponed on previous occasions with the information that we are waiting or the DNA results are outstanding and now this application by the State to have the saliva of the accused withdrawn is opposed by the defence Your Worship.

COURT: How can you set the matter down if you did not get DNA samples from the accused? There is no reference sample and so forth, what is the situation, what is going on, why was the matter to be set down then?

PROSECUTOR: Your Worship if I may, Your Worship it could not be the fault of the State at all. The matter was already set down for trial, the accused, indications for the accused ... (intervenes)

COURT: No you cannot put the matter down for trial if you have not completed your investigations. Now you was the trial to proceed and the investigations to go side by side.

PROSECUTOR: No Your Worship we have already preliminary results here which indeed confirms that the accused is linked to the commission of these

offences. All that is needed from the forensic sciences laboratory is for the accused to submit the saliva so that for purposes of final determination or confirmation.

COURT:

(intervenes)

What sample did you get as a reference sample from the

PROSECUTOR: Your Worship the investigating officer would shed more light on that and I am prepared to call him.

COURT: What sample did you get, did you get his blood, did you get his ... (intervenes)

PROSECUTOR: Your Worship the accused as he is standing here he is already convicted in another case which he is just ... (indistinct) ... (intervenes)

COURT: No you cannot ... (indistinct) Mr Prosecutor, you cannot

... (intervenes)

PROSECUTOR: Your Worship that is what the Court is asking me to lay the basis to explain how do we say not the accused is linked. In that case, the samples that were collected from him in that case is the one that reflected that indeed it matches with the samples in this case and I have provided a copy of that preliminary result long time ago to the defence Your Worship for purpose of the accused to give ... (indistinct).

COURT: Why did you not make the application for the saliva to be obtained well before the trial started and before reaching this point in time?

PROSECUTOR: Your Worship I informed, spoke to my learned colleague

... (intervenes)

COURT: Ja but why do you not do it before you started the evidence, before you started this trial? That is what I am asking you.

PROSECUTOR: Your Worship it was because of consensus reached between the State and the defence. I informed them that I am prepared to proceed with trial, I am ready however the accused is refusing to submit fro his saliva to be taken for purposes of confirmation of the DNA results so the defence indeed agreed that let us rather proceed with the matter without wasting time Your Worship but I did clearly discuss this matter with my learned colleague this morning Your Worship.

COURT: Ja but why was it then, that is, I am coming back to my first question, why was the matter even set down for trial if that was not done? Why was this application not done beforehand? What kind of case are you coming now to court with?

PROSECUTOR: I am ... (intervenes)

COURT: If you have not finished all your investigations?

PROSECUTOR: But it is not because of the fault on my part or that of the investigating officer, it is because of the accused.

COURT: It is the fault on your part ... (intervenes)

PROSECUTOR: No Your Worship.

COURT: It is the fault on the part of the accused ,,,(intervenes)

COURT: And it is the fault of everybody. PROSECUTOR:I beg to differ with the honourable Court.

trial.

Because this should have been finished before you stated this

PROSECUTOR: If the accused is making it difficult for the State to complete its investigations ... (intervenes)

COURT: Then you should have made an application before you started with the matter.

PROSECUTOR: Yes Your Worship, that is why I discussed the matter with my learned colleague.

COURT: No, no, you are not making, you are making an application now

after you called a number of witnesses.

PROSECUTOR: Your Worship I would not like to argue with the Court,

COURT: Yes I am not arguing with you.

PROSECUTOR: Let us go and discuss this matter rather in chambers.

COURT: I am telling you, you call the SPP in now while you are standing there.

PROSECUTOR: Your Worship I am not going to call the SPP, he is not here.

COURT: Where is the orderly, where is the orderly?

PROSECUTOR: He is not here, I am the acting SPP therefore I would like to discuss this matter, if the Court want to engage me further on this matter

COURT: No, I am engaging you ... (indistinct) ... (intervenes)

PROSECUTOR: I expect the Court to call me in chambers.

COURT: I do not want to engage you. My question to you is why was this application not brought before you started with the trial?

PROSECUTOR: I have already provided reasons Your Worship.

COURT: In any event I am going to recuse myself in this matter because you told me that the accused was convicted and that is how the DNA was

PROSECUTOR: That has got nothing to do with this case Your Worship or the merits of this case.

COURT: The Court recuses itself.

PROSECUTOR: So be it Your Worship.

COURT: The Court recuses itself. That is all I can do.

COURT: Because there will be a mistrial ... (indistinct).

PROSECUTOR: If the Court is forming that view I cannot really disagree with the Court, it is the Court's, the Court is entitled to make such a decision.

COURT: (Indistinct).

MR NKHAHLE: As the Court pleases Your Worship. Unless we, if the Court wants me to address me it this issue ...(intervenes)

PROSECUTOR: The Court has already recused itself.

COURT: I am recusing myself because I do not want a mistrial.

MR NKHAHLE: As the Court pleases.

COURT: Court has recused itself. The trial will start de novo."

The applicable legal principles and authority

[8] The relief sought by the applicant conflates two distinct issues inherent in the orders of the first respondent, first, the recusal by the first respondent and second, the order that the matter commence de novo.

The recusal issue

[9] On the first issue, the recusal by the first respondent, the authorities are clear. The common law authority sets the position as follows in Voet (Gane-interp.) Vol. II 55 that:

"It seems that we should rather believe that those who are bound by a Sworn and tested loyalty, and have been raised to the function of judging for their eminent industry and dignity will not so readily and for such slender causes depart from their straight path of justice and give judgment in defence of their own inner sense of duty."

[10] A magistrate may recuse himself from a matter mero motu if the peculiar circumstances of a case justifies such recusal. This, ordinarily but not exclusively will be the case where bias is

manifest in the actions of the judicial officer against one of the parties. In such circumstances, a judicial officer must recuse himself.[1]

[11] In S v Suliman[2], the Appellate Division dealt with the question of recusal in similar circumstances as follows:

"The vital question for decision, however, is whether, in all the circumstances, the recusal constituted an irregularity resulting in a failure of justice...

The ground for the relief thus sought is the contention that VAN WYK DE

VRIES, A.J.'s action in recusing himself was - notwithstanding that such recusal was avowedly made in the interests of appellant himself - an irregularity.

Mr. Margo cited no direct authority in support of this last-mentioned contention, and I have been unable to find any. The contention thus depends for its validity solely upon the correctness of the submission that the recusal per se amounted to a failure of iustice or, alternatively that. because of the preiudice it occasioned to the appellant, the recusal resulted in a failure of iustice. In this context it is inherent in the concept of a failure of iustice that the accused has, for some reason. not had a fair trial...

The mere fact that appellant had pleaded not guilty before VANWYK DE VRIES, A.J., does not. therefore, in itself entitle appellant to insist upon his trial being concluded before that Judge.

Now the basis underlying a iudicial officer's recusal of himself is that. for some reason or other, he fears that he is incapable of impartially adiudicating, or may be thought to be incapable of impartially adiudicating, in a legal proceeding upon which he is about to embark or with which he is already seized. Often the request that he recuse himself is addressed to the iudicial officer by one or other of the parties, or sometimes, in relatively rare instances, by both of them; but on occasion a iudicial officer may himself. without any such prior request. recuse himself. In such last-mentioned case, the judicial officer is in reality intimating either that for some reason or other - e.g. relationship or friendship with one of the parties - he feels unable to adjudicate impartially, or that he is apprehensive lest it even be suspected that he might conceivably not be impartial (cf. R v Venter, 1944 AD 359 at p. 365). Manifestly the existence of objectively sound reasons why a judicial officer should, in the absence of any request in that behalf from either party. recuse himself, will render a decision to recuse beyond challenge. But, inasmuch as the criterion is that of impeccable impartiality, much must inevitably be left to the discretion of the individual judicial officer concerned. It accordingly appears to me that, if a Judge presiding in a criminal trial bona fide recuses himself during the trial upon what he conceives to be sufficient grounds, this Court, even if it does not share the trial Judge's view that recusation was in the circumstances necessary. should be very slow indeed to hold that such recusation constitutes an irregularity.

Having regard to the various factors I have mentioned, I come to the conclusion that when a trial Judge bona fide, albeit mistakenly and on objectively inadequate grounds, recuses himself from continuing with a criminal trial, he commits no irregularity amounting to a failure of justice, even though such recusal occasions expense and inconvenience to the accused concerned.

The second portion of the special entry raises the question whether a failure of justice resulted from the learned Judge's failure to 'afford the defence an opportunity of being heard as to the expediency of such recusal'."

[12] From Suliman it is clear that where a judicial officer recuses himself or herself, albeit mistakenly and upon grounds which, when objectively considered, are inadequate, he or she commits no irregularity, which would be tantamount to a failure of justice, even if the recusal would inconvenience an accused or bring unnecessary financial hardship to bear on an accused.

[13] In Mgubane v Van der Merwe N0[3], the court held that the recusal of a magistrate renders him not only functus officio but the proceedings itself becomes a nullity, the effect of which is that if the accused is charged again, the trial becomes a fresh trial against the accused.

The trial de novo issue

[14] In respect of the order that the trial commence de novo, it is trite that a Magistrates' Court is a creature of statute and only has the powers conferred on it by statute. In Santam Insurance Co v Liebenberg NO and another[4], the following was said in this regard:

"It has oflen been stated that a magistrate's court, being a creature of statute with no jurisdiction beyond that granted to it by the statute creating it, does not possess the inherent jurisdiction which Superior Courts have (cf. Connolly v Ferguson, 1909 T.S. 195). It is thus not at all clear that a magistrate's court has any power to prevent the abuse of its process, and it may well be necessary in a proper case to approach the Supreme Court having jurisdiction, even though its order will relate to a matter pending in the magistrate's court."

[15] A Magistrate has no authority to order that a matter commence de novo before another Magistrate. Such authority vests solely with the High Court. The correct procedure would be for the Magistrate to refer the matter to the High Court for such declaration upon recusal. In this regard, whilst not analogous to the present matter, the principle enunciated in S v Richter[5] finds equal application. In Richter, Traverso J remarked as follows:

"At 313A-C: It is trite that a magistrate's court is a creature of statute and accordingly its powers are limited to those conferred upon it by statute. (Santam Insurance Co Ltd v Liebenberg NO and Another 1976 (4) SA 312 (N) at 323H.) There is no statutory authority for a magistrate to order that the trial should be instituted de nova before another court. Accordingly, where such a declaration is required, the matter should be referred to the High Court for the setting aside of the proceedings and a direction that it should proceed de novo. (See S v Mbothoma en 'n Ander 1978 (2) SA 530 (0) at 533; S v Fourie (supra); but cf: S v Sass en Andere 1986 (2) SA 146 (NG).)

At 313 D-G: Mr Gibson remarks that what the magistrate in fact intended doing was to recuse herself. Whether that was what she intended doing or not, is immaterial. That is not the ruling that she made. Whatever motivated her to order that the matter should be heard de novo, is irrelevant. The effect of her order was to bring the proceedings before her to an end and to order that the matter should proceed de novo before another magistrate. That order being incompetent, it is self-evident that the proceedings before magistrate Gibson were a nullity.

It is accordingly necessary that the proceedings before Ms Van der Merwe and Mr Gibson (in so far as this may be necessary) be set aside and that the matter be referred back to be heard de novo before another regional magistrate."

Discussion

[16] The recusal of the Regional Magistrate is premised on the prosecutor's indication during an address on the obtaining of a buccal sample from the applicant that the accused was already convicted in another case where a DNA sample was seemingly already obtained. A reading of the record reflects that the Regional Magistrate correctly so in my view did not want to discuss the matter with the prosecutor and defence in chambers at request of the prosecutor. Following a heated debate between the Regional Magistrate and the prosecutor, the Regional Magistrate, without hearing the prosecutor or defence on the issue of his recusal and based on the

prosecutor's disclosure that the accused had already been convicted in another matter, summarily recused himself, indicating that he does not want a mistrial. The prosecutor's response was simply "So, be it" and that he could not disagree with the Regional Magistrate on his recusal as he was entitled to reach that decision. The Regional Magistrate after recusing himself, ordered without further ado that the trial would commence de novo.

[17] In Nd/eve v Director of Public Prosecutions North Gauteng, Pretoria and Another[6], Ratshibvumo AJ, as he then was, in dealing with a review application predicated on the refusal of a Regional Magistrate to recuse herself from a criminal trial after the disclosure of previous convictions of the applicant to her, had the following to say:

"10. One thorny aspect is the utterances by the counsel for the State just before the trial began to the effect that the appellant had a previous conviction of similar nature. Sections 89, 197, 211 and 271 of the Criminal Procedure Act 51 of 1977 are all against the disclosure of previous convictions at any stage before the conviction of an accused person. Section 211 in particular provides, "Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted." There can be no doubt as such that for the counsel of the State to inform the presiding officer of the previous conviction that the appellant had was an irregularity. The gravity of such irregularity and whether it vitiates the right to a fair trial that the appellant is entitled to, is for this court to weigh.

12. The Supreme Court of Appeal held in S v Roberts 1999 (2) SACR 243 (SCA) at 249, that the vital ingredient of a fair trial is that on hallowed authority, justice be done and be seen to be done. In what is seen to be done, appearances play a varied role in the fulfilment of the need for fairness. The appearance of bias may be enough to vitiate a trial in a whole or in part. In S v Bruinders 2012 (1) SACR 25 (WCC) at 29. the fact that the accused knew that the magistrate who presided over the trial knew his previous convictions since he had presided over his application to be released on bail. and decided not to ask for his recusal was not good enough to cure what otherwise is prima facie irregular. According to this decision. presiding over a case while a iudicial officer is biased is against the constitutional provisions wherebv a iudicial officer is called upon to applv the law without fear. favour and preiudice.

Perception of bias has the same impact as the actual bias since it vitiates the trial proceedings.

13. It is a long standing practice in our courts that for the presiding officer to be informed of the previous convictions before the accused is convicted constitutes an irregularity nullifying the proceedings as a whole. In S v Mavuso 1087 (3) SA 499 (A), the Appellate Division set aside the conviction and the sentence because it held that the proceedings were irregular for the same reason. In S v Mdletye [2005] JOL 13933 Tk, the High Court did not attach any weight to the fact that the accused had pleaded guilty to the charge, thereby minimizing the prejudice. Once the previous conviction were known to the magistrate during the questioning in terms of section 112 (1) (b) of the Criminal Procedure Act. it constituted irregularity and thereby nullified everything that followed. In S v Mofokeng and Others (unreported iudgment. case no. A421/11 bv the Gauteng South. Johannesburg delivered on the 12th October 2011 ). although evidence to the effect that the accused were guilty of housebreaking with the intention to steal and theft was overwhelming, the knowledge of previous convictions to the magistrate constituted an irregularity that nullified the proceedings as a whole."

[18] This Court has expressed similar views to the Nd/eve decision and cases cited therein.[7] The Regional Magistrate in my view was correct in recusing himself from the matter upon the disclosure of the poisonous information disclosed by the prosecutor in respect of the applicant having been convicted in another matter where DNA was a factor. This approach accords with the authorities as aforesaid. Inasmuch as the applicant feels aggrieved by the recusal of the Regional Magistrate, this Court cannot endorse proceedings before the Regional Magistrate to continue who clearly, albeit mero motu found himself in position where he was of the view that the continuation of the proceedings would be tainted.

[19] The Regional Magistrate's order that trial commence de novo, however, does accord with the authorities referred to supra. That decision is subject to review by this Court.

[20] The applicant's complaint that the State in a trial commencing de novo would be placed in a position of having the DNA evidence it did not have in the proceedings sought to be reviewed, does not advance the matter for the applicant. The applicant retains to challenge the admissibility of such evidence on the same basis raised at the time the Regional Magistrate recused himself.

Conclusion

[21] Having considered the submissions on behalf of the applicant and having had regard to the authorities and peculiar circumstances of this matter, I am of the view that the relief sought to review and set aside the recusal decision of the Regional Magistrate stands to be dismissed; the order that the trial commence de novo be reviewed and set aside and that the proceedings under VRC/114/14, which resulted from the order that the trial commence de novo, be declared invalid and set aside; and that an order be granted that the trial commence de novo before another Regional Magistrate.

Order

[22] In the result the following order is made:

1. The application that:

1.1 the order in terms of which the first respondent recused himself from the criminal trial under case number VRC/139/13, be reviewed and set aside, is dismissed.

1.2 the order in terms of which the first respondent ordered the trial to commence de novo is reviewed and set aside.

1.3 the proceedings under case number VRC/114/14, which resulted from the order that the trial commence de novo, is declared invalid and set aside.

1.4 the proceedings under case number VRC/139/13 be re­ instated and referred back to the first respondent to deliver judgment on an application by the State before the first respondent's recusal and order that the trial commence de novo, and continuation of the trial, is dismissed.

1.5 the trial is to commence de novo before another Regional Magistrate.

AH PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

SAMKELO GURA

FOR THE APPLICANT:

MR G A MOKAA

(Attorney with Right of Appearance in the

High Court)

DATE OF HEARING:

10 JUNE 2022

DATE OF JUDGMENT: 14

JULY 2022

[1] Hatch 1914 CPD 68

[2] 1969 (2) SA 385 (A) at 391.

[3] 1969 (2) SA 417 (N)

[4] 1976 (4) SA 312 (N) at 323H.

[5] 1998 (1) SACR 311 (C).

[6] (A877/11) [2013] ZAGPPHC 108 (22 April 2013); 2013 (2) SACR 541 (GP)

[7] HC 08 AND 09/2021, S v Mmusi and S v Maruping at paragraph 21