S v Jenkins, In re: S v Moosagie and Another (CC 29/2010) [2013] ZAECPEHC 6 (4 February 2013)

S v Jenkins, In re: S v Moosagie and Another (CC 29/2010) [2013] ZAECPEHC 6 (4 February 2013)

The court found that the applicant's perception of bias was ill-founded, frivolous, and opportunistic, arising only after the disappearance of accused no. 1 and not during the two and a half years the trial was in progress. The allegations of bias were based on hearsay and contradicted by the record, which showed no...

Source-derived case information.

Citation
[2013] ZAECPEHC 6
Parties
Applicant: Desire Jenkins; Respondent: The State
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
4 February 2013
Case Number
CC 29/2010
Procedural Posture
Recusal Application / Application for Recusal and Special Entry Following Conviction, Prior to Sentencing
Outcome
Application for recusal dismissed; condonation refused; application for special entry dismissed.
Judges
Chetty
Legal Topics
Recusal of Judge, Apprehended Bias, Fair Trial Rights, Conflict of Interest, Special Entry, Criminal Procedure Act
Criminal Law Civil Procedure Recusal of Judge Apprehended Bias Fair Trial Rights Conflict of Interest Special Entry Criminal Procedure Act

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Summary, issues, holding and outcome

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Parties

Desire Jenkins

Applicant

The State

Respondent

Procedural Posture

Recusal Application / Application for Recusal and Special Entry Following Conviction, Prior to Sentencing

Legal Issues

  1. 1 Whether the presiding judge should recuse himself due to alleged bias against accused no. 2 and the erstwhile accused no. 1.
  2. 2 Whether the applicant is entitled to condonation for late filing of the special entry application under section 317(2) of the Criminal Procedure Act.
  3. 3 Whether the applicant's right to a fair trial was infringed due to alleged conflict of interest and lack of opportunity to cross-examine accused no. 1.

Ratio Decidendi

The court found that the applicant's perception of bias was ill-founded, frivolous, and opportunistic, arising only after the disappearance of accused no. 1 and not during the two and a half years the trial was in progress. The allegations of bias were based on hearsay and contradicted by the record, which showed no suggestion of bias until the recusal application. The court held that the objective test for apprehended bias was not met, as a reasonable, informed person would not perceive bias on the facts. The complaints regarding conflict of interest and lack of consultation were similarly contrived and unsupported by the record, which demonstrated that the applicant was adequately...

Court Disposition

Application for recusal dismissed; condonation refused; application for special entry dismissed.

Orders

  • The application for recusal of the presiding judge is dismissed.
  • Condonation for late filing of the special entry application is refused.