Makoro v Erasmus and Another (M 133/2019) [2020] ZANWHC 15 (12 March 2020)

Makoro v Erasmus and Another (M 133/2019) [2020] ZANWHC 15 (12 March 2020)

The court found that Magistrate Erasmus displayed bias in favour of the state witnesses and against the accused's legal representative, as evidenced by his conduct in leading evidence, making premature remarks about the clarity of testimony, and repeatedly interrupting cross-examination. These actions constituted gross irregularity and created a reasonable apprehension of bias in the mind of an informed and objective observer. The refusal to recuse himself was therefore improper, and the proceedings before him were vitiated. The court held that the trial should be reviewed and set aside, and a new trial should commence before a different magistrate.

Citation
[2020] ZANWHC 15
Parties
Applicant: Baleseng Pienaar Makoro; Respondent: The Magistrate, Mr Petrus Erasmus; Respondent: The Director of Public Prosecutions
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 March 2020
Case Number
M 133/2019
Procedural Posture
Review Application / Judgment on Review of Refusal to Recuse Magistrate
Outcome
Application for review granted; proceedings before Magistrate Erasmus set aside; trial to commence de novo before a different magistrate.
Judges
Hendricks, Nonyane
Legal Topics
Recusal of Judicial Officer, Apprehended Bias, Gross Irregularity, Review of Magistrates Court Proceedings
Criminal Law Civil Procedure Recusal of Judicial Officer Apprehended Bias Gross Irregularity Review of Magistrates Court Proceedings

Case Brief

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Parties

Baleseng Pienaar Makoro

Applicant

The Magistrate, Mr Petrus Erasmus

Respondent

The Director of Public Prosecutions

Respondent

Procedural Posture

Review Application / Judgment on Review of Refusal to Recuse Magistrate

Legal Issues

  1. 1 Whether the presiding magistrate committed a gross irregularity by refusing to recuse himself on grounds of alleged bias.
  2. 2 Whether the conduct of the magistrate during the trial created a reasonable apprehension of bias.
  3. 3 Whether the proceedings before the magistrate should be reviewed and set aside.

Ratio Decidendi

The court found that Magistrate Erasmus displayed bias in favour of the state witnesses and against the accused's legal representative, as evidenced by his conduct in leading evidence, making premature remarks about the clarity of testimony, and repeatedly interrupting cross-examination. These actions constituted gross irregularity and created a reasonable apprehension of bias in the mind of an informed and objective observer. The refusal to recuse himself was therefore improper, and the proceedings before him were vitiated. The court held that the trial should be reviewed and set aside, and a new trial should commence before a different magistrate.

Court Disposition

Application for review granted; proceedings before Magistrate Erasmus set aside; trial to commence de novo before a different magistrate.

Orders

  • The proceedings in State vs Baleseng Pienaar Makoro, Case No 291/2018, Delareyville Magistrate Court, before Magistrate Erasmus are reviewed and set aside.
  • The trial must start de novo before a different Magistrate, other than Magistrate Erasmus.