S v Libeso and Another (693/2005) [2005] ZAFSHC 59 (23 June 2005)

S v Libeso and Another (693/2005) [2005] ZAFSHC 59 (23 June 2005)

The magistrate erred in referring the matter for special review before deciding the application for her recusal. It is the duty of the presiding officer to hear and consider the objections raised in an application for recusal and to make a decision with reference to the relevant authorities. Only after ruling on the application and, if circumstances justify, may the matter be referred for review with a complete record. The review court cannot make the decision on recusal in the absence of the grounds for objection and a ruling by the magistrate. The matter is therefore remitted to the magistrate to deal with the case according to the guidelines set out in this judgment.

Citation
[2005] ZAFSHC 59
Parties
Applicant: The State; Respondent: Cecil Moeketsi Libeso; Respondent: Another
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 June 2005
Case Number
693/2005
Procedural Posture
Review Application / Referral for Special Review Prior to Evidence Being Led
Outcome
Matter remitted to the magistrate to decide the recusal application and proceed according to the guidelines set out.
Judges
Hancke, C J Musi
Legal Topics
Recusal of Judicial Officer, Fair Trial Rights, Objective Test for Bias
Criminal Law Civil Procedure Recusal of Judicial Officer Fair Trial Rights Objective Test for Bias

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Cecil Moeketsi Libeso

Respondent

Another

Respondent

Procedural Posture

Review Application / Referral for Special Review Prior to Evidence Being Led

Legal Issues

  1. 1 Whether the magistrate was correct to refer the matter for special review before ruling on the application for her recusal.
  2. 2 What is the proper procedure when an application for recusal is made against a presiding officer.
  3. 3 What is the applicable test for judicial bias and recusal.

Ratio Decidendi

The magistrate erred in referring the matter for special review before deciding the application for her recusal. It is the duty of the presiding officer to hear and consider the objections raised in an application for recusal and to make a decision with reference to the relevant authorities. Only after ruling on the application and, if circumstances justify, may the matter be referred for review with a complete record. The review court cannot make the decision on recusal in the absence of the grounds for objection and a ruling by the magistrate. The matter is therefore remitted to the magistrate to deal with the case according to the guidelines set out in this judgment.

Court Disposition

Matter remitted to the magistrate to decide the recusal application and proceed according to the guidelines set out.

Orders

  • The matter is remitted to the magistrate to deal with the case according to the guidelines discussed in this judgment.