S v Motlhabane and Others (86/08) [2008] ZANWHC 39 (30 October 2008)
The court held that the presiding officer's bona fide recusal did not constitute an irregularity amounting to a failure of justice. The discretion exercised by the presiding officer was respected, and the court aligned itself with the principle that a judge's bona fide recusal should not be easily overturned, even...
Source-derived case information.
- Citation
- [2008] ZANWHC 39
- Parties
- Applicant: The State; Respondent: Kagiso Gilbert Motlhabane; Respondent: Shimene Johannes Moeng; Respondent: Japhta Motlhabane; Respondent: Obakeng Donald Motlhabane
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 86/08
- Procedural Posture
- Review Application / Review Judgment Following Recusal of Presiding Officer
- Outcome
- The matter is referred back to start de novo before another presiding officer.
- Judges
- A M Kgoele, R D Hendricks
- Legal Topics
- Recusal of Judicial Officer, Functus Officio, Trial De Novo
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Applicant
Kagiso Gilbert Motlhabane
Respondent
Shimene Johannes Moeng
Respondent
Japhta Motlhabane
Respondent
Obakeng Donald Motlhabane
Respondent
Procedural Posture
Review Application / Review Judgment Following Recusal of Presiding Officer
Legal Issues
- 1 Whether the presiding officer's recusal constituted an irregularity amounting to a failure of justice.
- 2 Whether the matter should proceed de novo before another presiding officer after recusal.
- 3 Whether agreements between prosecution and defence regarding use of prior evidence can be honoured post-recusal.
Ratio Decidendi
The court held that the presiding officer's bona fide recusal did not constitute an irregularity amounting to a failure of justice. The discretion exercised by the presiding officer was respected, and the court aligned itself with the principle that a judge's bona fide recusal should not be easily overturned, even if the grounds are not shared by the reviewing court. The court rejected the proposal to allow the new presiding officer to determine the case based on the record of evidence already adduced, holding that the matter must start de novo before another presiding officer. The presiding officer who recused himself is now functus officio, and the case must proceed afresh.
Court Disposition
The matter is referred back to start de novo before another presiding officer.
Orders
- The matter is referred back to start de novo before another presiding officer.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION
CA NO.: 86/08
In the matter between: THE STATE
and
KAGISO GILBERT MOTLHABANE
SHIMENE JOHANNES MOENG
JAPHTA MOTLHABANE
OBAKENG DONALD MOTLHABANE
REVIEW JUDGMENT
KGOELE AJ:
1. This matter appeared before the presiding officer Mr Khuduge. On the 27 March 2007 the complainant gave evidence and the matter was postponed to the 20th April 2007 for further evidence. The matter was thereafter postponed on numerous occasions for various reasons.
2. On the 31st March 2008, the presiding officer recused himself as he felt he was at that time in a position that he could not give an entirely
unbiased judgment in the matter. His reasons were as follows:
"When the case was postponed on numerous occasions, the writer (referring to himself) had some encounters with accused 2. This emanated from the proceedings on the 27th March 2007 when the writer asked accused 2 to bring forward a horn that he produced prior to cross-examining the complainant. In this regard See Page 19 line 7- 10 and Page 20 lines 12-13. The numerous encounters with accused 2 were regarding his knowledge of herbs. The writer then became acquainted with accused 2 to such a stage that considering the writer's oath of office, the writer's impartiality was now at stake towards accused 2 and other accused. The writer was bona fide and found that the recusal was warranted and the writer made his decision known to recuse himself to Mr Mokoka who was standing on behalf of Mr Mogale and accused 2's legal representative Mr. Mafejane on the 3P March 2008."
3. In the Appellate Division case of S v Suliman 1969 (2) SA the following was held:
"When a trial Judge bona fide, albeit mistaken 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."
4. Often the request for recusal is addressed to the judicial officer by one or other of the parties, or sometimes by both of them, but occasionally a judicial officer may without any such prior request, recuse himself. In such a case the judicial officer is intimating that for some reason or the other, he fears that he is incapable of impartially adjudicating in a matter upon which he is about to embark or with which he is already seized.
There is also in our law a "duty" upon all judicial officers to sit and hear all the cases that appear before him/her. Manifestestly there should exist objectively sounds reasons why a judicial officer should, in the absence of any request from either party, recuse himself. But, I am of the view that, in as much as the criterion is that of impeccable impartiality, much must inevitability be left to the discretion of the individual judicial officer concerned.
I therefore align myself with the further remarks made by the honourable Judge Ogilivie Thompson in the Suliman case that:
"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."
7. Unfortunately I cannot agree with the request by the presiding officer that weshould honour agreements (Partum Honorarium) of the prosecution and thedefence counsels which is to place the record of the evidence that has beenadduced before the second judicial officer to determine the case on the evidenceso adduced and any additional evidence that will be presented to such judicialofficer. Despite the inconvenience that will be cause or has already beenoccasioned by his recusal, this procedure suggested by him cannot be followed.
In as much as the bona fides of Mr Khuduga, the presiding officer has not been questioned by any party, I accordingly come to the conclusion that as the presiding
officer has already recused himself, he is now functus officio. The matter should start de novo and proceed before another presiding officer.
Consequently the following order is made:
9.1 The matter is referred back to start de novo before another presiding officer.
A M KGOELE
ACTING JUDGE OF THE HIGH COURT
I agree
R D HENDRICKS
JUDGE OF THE HIGH COURT
DATED 30 OCTOBER 2008