Explanation and discussion notes for trainers

Training Activity 4.4

Interactive discussion: What should you do?

Family Relationships

1. If a magistrate were having a relationship with a prosecutor who works in his or her court, would there be actual bias towards the state’s case?
   Due to the intimacy of the relationship, it is highly unlikely that the magistrate will be able to put aside any bias or loyalty he or she may feel towards the prosecutor and apply an open mind to the submissions of both parties.
   
   Would there be a reasonable perception of bias?
   In this situation the reasonable and objective person in the position of the accused who is informed of the facts would apprehend that there will bias. The apprehension of bias would be reasonable due to the nature and intimacy of the relationship. In the circumstances there is a reasonable apprehension that the magistrate will be biased and so should recuse him- or herself.
   
   Is disclosure necessary?
   If the defence were unaware of the relationship, disclosure would be necessary as we have established that the relationship would create a reasonable apprehension of bias.
   
   The problem in our example is that we are not dealing with a single matter. The prosecutor in the example has been assigned to the magistrate’s court and could work there for an extended period. It is not practical or proper for the magistrate to recuse him- or herself in every case that comes to his or her court. This would negatively impact on the effective administration of justice. One way of dealing with the situation would be to ask to have the prosecutor transferred to another court. This could be logistically problematic in a small town, where one may wait months to have another prosecutor assigned.
   
   Quare:
   Would the situation be different if the official in question was an interpreter?
   
   It may be different because a magistrate is not required to make a finding based on the arguments of the interpreter, as is the case with the prosecutor.
   

Casual relationships/acquaintances

2. The example regarding the magistrate’s relationship with the restaurant owner (Mrs Dube) who is now a witness before him or her in a murder trial is complex. In light of this the participants’ responses will probably be varied.
   
   Would there be actual bias?
   The magistrate has developed some kind of relationship with Mrs Dube, who has a direct interest in the outcome of the case as the victim was her son. However, due to the training and experience of the magistrate it is unlikely that he or she would feel actual bias and therefore should be able to apply an open mind to the evidence and the submissions of both parties.
   
   Would there be a reasonable perception of bias?
   In this situation the reasonable and objective person in the position of the accused who is informed of the facts may apprehend that there will be bias on the grounds that, due to the magistrate’s association with Mrs Dube, the magistrate would feel a greater sympathy for Mrs Dube than he or she would for other parents of victims who appear before him or her. Whether this would constitute a reasonable ground, is debatable, as a strong argument could be made that the relationship between Mrs Dube and the magistrate is a casual one; she is more of an acquaintance, than a friend. It would therefore not be reasonable to assume that there would be any bias, especially given the presumption that all judicial officers are able to remain impartial due to their experience and training. In addition, it might be argued that a magistrate who lives in a small town probably has this kind of relationship with most of the people in the town and recusing him- or herself whenever they were involved in a case would be impossible.
   
   Alternatively, some people may say that a magistrate should not engage with members of the public at all to avoid placing themselves in these situations, bearing in mind that magistrates have a duty to hear every case. This is, however, unreasonable and imposes an unrealistic expectation on the magistrate, especially the one living in a small town.
   
   Is disclosure necessary?
   This would depend on whether you feel that there is a reasonable apprehension of bias. The issue of the free doughnut should also be discussed. In this regard see Module 2: Corruption: Gifts and Favours : Training Activity 4.3.

Previous dealings

3. The issue in this case is whether the magistrate’s previous dealings with the accused on other similar charges where the accused was convicted will prevent him or her from applying his or her mind to the facts of the present case afresh and without pre-judging the accused.
   
   Would there be actual bias?
   This is, of course, a question that the individual magistrate must consider for him‑ or herself. However, some guidance can be taken from R v Mukuma 1934 TDP 134 at 135 – 136 where the court held that it would not,
   
   “lay down that a magistrate is bound to recuse himself because he previously convicted the accused of a similar offence. An experienced magistrate knows that he must not be influenced by the evidence in the previous case.”
   
   
   Would there be a reasonable apprehension of bias?
   It has been held on more than one occasion that knowledge of previous convictions will not be a ground for establishing a reasonable apprehension of bias (Magubane v Van Der Merwe 1969(2) SA 417 (N); S v Mampie 1980 (3) SA 777 (NC)) It would therefore seem that the accused in this case would not discharge the onus of establishing a reasonable apprehension of bias.
   
   Quare:
   Would the fact that the magistrate is the only one in the district have any impact on the enquiry into the reasonable apprehension of bias? What if no one else could be assigned to the case for another three months?
   
   The Bangalore Principles (art2) provide that, “disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a miscarriage of justice.” This is known as the doctrine of necessity. There is uncertainty as to whether this doctrine applies in South Africa, as the question has never had to be decided. This issue was raised in SARFU but not decided (at para9).
   

Issues of race and emotional history

4. In this case a young black man has been allegedly killed by a white policeman while in custody and the magistrate’s son was murdered under almost identical circumstances.
   
   Would there be actual bias?
   As a starting point, one cannot doubt that the case would invoke memories and certain feelings in the mind of the magistrate. The extent to which this would influence his or her judgment may depend on the how much time has passed since the son was killed.
   
   Would there be a reasonable perception of bias?
   The facts are similar to those of S v Shackell 2001 (4) SA 1 (SCA). The court in that case held that the judge should not have recused himself. In reaching its conclusion the court took into account that there were certain substantial differences between the circumstances of the two murders in that case (at para 11). In our example, we are told that the two murders took place under the same circumstances. In this situation the reasonable and objective person in the position of the accused who is informed of the facts may apprehend that there will be bias on the grounds that the magistrate would not be able to apply an open mind to the facts as they are so similar and must carry great emotion for the magistrate. This may be considered to be a reasonable ground.
   
   Is disclosure necessary?
   The fact that there is a possibility that the magistrate’s experience would create a reasonable apprehension of bias in the mind of the accused would mean that the magistrate has a duty to disclose the circumstances of the son’s death.

Executive interference

5. The issue here is whether the magistrate’s decision will be influenced by the warning from the head of office which implied that he or she should acquit and which came as a result of executive interference from the cabinet minister.
   
   This question will no doubt have various responses from the participants. This example raises not only the question of impartiality, but also that of judicial independence from executive interference. See also Lourens Du Plessis Hyperthecticals prepared for training at Justice College and Moldenhauer v Du Plessis and Others 2002 (5) SA 781 (T).
   
   Section 165(1) of the Constitution provides that, “The courts are independent, subject only to the Constitution and the law.”
   
   Articles 1.1 and 1.4 of the Bangalore Principles provide that:
   
   
   “A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and ... free from extraneous influences, inducements, threats or interference, direct or indirect, from any quarter for any reason.”
   
   “In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.”
   
   
   Would there be actual bias?
   This is a question for the magistrate to decide and in doing so he or she must exercise integrity. It may well be that if the magistrate is new or inexperienced, he or she might be influenced by the interference from the head of office. In such a situation the magistrate should recuse. Whether the or not the magistrate does feel unduly influenced he or she should report the head of office to the Commission for misconduct. This is what happened in Moldenhauer.
   
   Would there be a reasonable apprehension of bias?
   The starting point is that magistrates are independent. This is entrenched in section 165(2) of the Constitution, and was confirmed in Van Rooyen v S 2002 (5) SA 246 (CC). Therefore, the accused in this case would have two presumptions to rebut in order to establish a reasonable apprehension of bias: that the magistrate is impartial and that the magistrate is independent of the executive.
    
   Is disclosure necessary?
   In light of what has been said with regard to the reasonable apprehension of bias, disclosure is probably not necessary.
   

Perception of secrecy and improper ex parte communications

6. It is an unfortunate reality that magistrates and prosecutors often travel in the same car to circuit courts. Most often, this occurs as a result of lack of resources. The same applies to magistrates and prosecutors staying at the same guest house. Where possible however, this should be avoided as “that [in order for] justice publicly [to] be seen to be done necessitates, as an elementary requirement, [one] to avoid the appearance that justice is being administered in secret, [and] that the presiding judicial officer should have no communication whatever with either party except in the presence of the other.” (S v Roberts 1999 (4) SA 915 (SCA) at 23)
   
   Would there be a reasonable apprehension of bias?
   This dictum from Roberts indicates that the practice of magistrates and prosecutors sharing transport and accommodation while a matter is sub judice is inappropriate and could, if challenged, be seen as establishing a reasonable apprehension of bias in the mind of the accused.
   

Prejudgment

7. It would seem that in this case, the magistrate, by calling counsel into his or her office and warning that he or she is looking to find in favour of the plaintiff even before the close of the defendant’s case, has prejudged the matter before hearing all the evidence.
   
   Therefore, it is reasonable to perceive that he or she will not assess any further facts that are put before him or her with an open mind. In the circumstances, the defendant could prove that there is a reasonable apprehension of bias.
   
   On the other hand, calling counsel to chambers and advising them of the judge’s position at a late stage in the trial is common practice in the High Court. The merits of this practice are that it does prevent wasted time and expense.
   
   Whether this would be a ground for recusal would probably depend on the stage that the proceedings have reached and whether any new evidence or facts are to be placed before the court. Even if new evidence and facts are still to be led, the fact that a judicial officer directs counsel not to waste the court’s time does not necessarily mean that he or she will not apply an open mind to the subsequent proceedings. After all, the judicial officer has not said he or she will not hear the evidence, he or she has simply warned that if it is irrelevant he or she will take this into consideration in awarding costs.
   

Own matter

8. Truth is stranger than fiction. This example of a magistrate ordering for contempt against an accused in his or her own matter is based on an allegation that was made to the Magistrates’ Commission. It goes without saying that a person cannot sit in judgment of their own case. By ordering the neighbour to be arrested for contempt, this is what the magistrate was in effect doing