Makaphela and Others v Acting Regional Court Magistrate Mr Dumani and Others (816/18) [2019] ZAECBHC 22; 2020 (2) SACR 427 (ECB) (14 November 2019)

Makaphela and Others v Acting Regional Court Magistrate Mr Dumani and Others (816/18) [2019] ZAECBHC 22; 2020 (2) SACR 427 (ECB) (14 November 2019)

The High Court found that the magistrate's refusal to recuse himself was erroneous and created a reasonable apprehension of bias, particularly after convicting a co-accused who implicated the remaining accused. The review application was granted, and the criminal trial was ordered to commence de novo before another magistrate. However, the court held that neither malice nor grossly improper conduct was established on the part of the magistrate, and thus a personal costs order was not justified. The court further determined that magistrates are not employees of the Minister of Justice and that the State should not be held vicariously liable for costs in criminal review proceedings....

Citation
[2019] ZAECBHC 22
Parties
Applicant: Busiswa Beryl Makaphela; Applicant: Andiswa Mbebe; Applicant: Novakalisa Albertina April; Applicant: Nokubonga Jongihlathi; Respondent: Acting Regional Court Magistrate Mr Dumani; Respondent: Director of Public Prosecutions Bhisho; Respondent: Deputy Director Specialised Commercial Crimes Unit, Port Elizabeth; Respondent: Minister of Justice & Correctional Services
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
14 November 2019
Case Number
816/18
Procedural Posture
Review Application / High Court Review of Magistrate's Refusal to Recuse Himself in Part Heard Criminal Trial
Outcome
Review application granted; magistrate's refusal to recuse himself set aside; criminal trial to commence de novo before another magistrate; no order as to costs.
Judges
I. T. Stretch, B. R. Tokota
Legal Topics
Recusal of Judicial Officer, Review of Magistrate Decision, Costs in Criminal Review, Judicial Independence
Criminal Law Civil Procedure Recusal of Judicial Officer Review of Magistrate Decision Costs in Criminal Review Judicial Independence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 23 Party arguments 2
Sign in to unlock

Parties

Busiswa Beryl Makaphela

Applicant

Andiswa Mbebe

Applicant

Novakalisa Albertina April

Applicant

Nokubonga Jongihlathi

Applicant

Acting Regional Court Magistrate Mr Dumani

Respondent

Director of Public Prosecutions Bhisho

Respondent

Deputy Director Specialised Commercial Crimes Unit, Port Elizabeth

Respondent

Minister of Justice & Correctional Services

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Refusal to Recuse Himself in Part Heard Criminal Trial

Legal Issues

  1. 1 Whether the magistrate's refusal to recuse himself from the criminal trial was reviewable and should be set aside.
  2. 2 Whether the applicants are entitled to a costs order against the magistrate or the State.
  3. 3 Whether magistrates are employees of the Minister of Justice for purposes of vicarious liability for costs.

Ratio Decidendi

The High Court found that the magistrate's refusal to recuse himself was erroneous and created a reasonable apprehension of bias, particularly after convicting a co-accused who implicated the remaining accused. The review application was granted, and the criminal trial was ordered to commence de novo before another magistrate. However, the court held that neither malice nor grossly improper conduct was established on the part of the magistrate, and thus a personal costs order was not justified. The court further determined that magistrates are not employees of the Minister of Justice and that the State should not be held vicariously liable for costs in criminal review proceedings....

Court Disposition

Review application granted; magistrate's refusal to recuse himself set aside; criminal trial to commence de novo before another magistrate; no order as to costs.

Orders

  • The applicants' failure to bring the review application timeously is condoned.
  • The first respondent's decision not to recuse himself as presiding officer in the part-heard criminal matter is reviewed and set aside.