A 110/2005

GIDEON
JOHANNES DE WAAL –vs- THE PROSECUTOR – GENERAL OF THE REPUBLIC OF
NAMIBIA and ANOTHER

HANNAH, J

3/10/2005

SUMMARY

CRIMINAL
PRODECURE

Order
made that magistrate is recused in a criminal trial despite no
application having been made to her for recusal.

CONSTITUTIONAL
LAW

Court
has the power to order that a public prosecutor be replaced by
another. Such power not exercised in the circumstances of the
present case.

CASE NO.: A
110/05

IN THE HIGH COURT OF NAMIBIA

In the matter between:

GIDEON JOHANNES DE
WAAL APPLICANT

and

THE PROSECUTOR-GENERAL OF
1^st RESPONDENT

THE REPUBLIC OF NAMIBIA

MAGISTRATE HAIKANGO, THE
PRESIDING OFFICER

IN THE CRIMINAL TRIAL OF THE
ABOVE-MENTIONED

APPLICANT 2^nd
RESPONDENT

CORAM: HANNAH, J

Heard on: 19/9/2005

Delivered on: 03/10/2005

JUDGMENT

HANNAH ,J.: On
12^th April, 2005 this Court issued a rule nisi
calling upon the two respondents to show cause why an order should
not be made:

“1. That the second
respondent be ordered to recuse herself as presiding officer in the
criminal trial of the applicant in case number E 2119/2003;

2. That the first respondent be
ordered to provide answers to the applicant’s request for further
particulars to the charge sheet received on 1^st April 2005
at 13h35 in the abovementioned case number and annexed to the
founding affidavit marked annexure “D 10”;

3. That it be ordered that the
applicant’s criminal trial be commenced de novo before
another magistrate while the State is represented by another
prosecutor;

4. That the second respondent
be ordered to pay the costs of this application de bonis
propriis.”

When the rule was issued an
order was also made interdicting the respondents from continuing with
the criminal trial of the applicant pending the return day of the
rule.

Argument was heard on the
extended return day and judgment was reserved.

The relief sought is not
opposed by the first respondent and the second respondent only
opposes the costs order which is sought against her. However Ms
Katjipuku-Sibolile, who appeared for both respondents, drew the
attention of the Court to certain matters which, in her submission,
should affect the decision of the Court whether or not to make the
rule final. Before considering these matters I will set out the
circumstances which led to the application being made.

The applicant was arrested in
September, 2003 on a charge of culpable homicide arising from alleged
negligent driving. He instructed the firm of Hennie Barnard and
Partners to represent him. By letter dated 3^rd October,
2003 Mr Hennie Barnard of that firm wrote to the Control Prosecutor
at Windhoek Magistrate’s Court requesting a copy of the charge
sheet and disclosure of the case docket. Thereafter the trial of the
applicant was postponed from time to time and eventually the trial
date was set for 15^th November, 2004. An order was also
made that the charge sheet and the contents of the case docket be
served on the applicant’s legal representative on or before 10^th
August, 2004.

On 15^th November the
public prosecutor applied successfully for a further postponement on
the ground that the investigation had not been completed. The charge
sheet and the case docket still had not been served. It is alleged
by the applicant that in granting a postponement the second
respondent was influenced by information from the prosecutor that the
deceased in the case was family to a highly placed political figure.
This allegation is denied by the second respondent in her answering
affidavit and the Court must accept that she was not influenced as
alleged.

On 29^th November the
trial was postponed to 11^th April, 2005 and three days
were set aside for the hearing. On 2^nd February the
contents of the case docket were served on the applicant’s legal
representative but it was not until 1^st April that charge
sheets were served setting out a charge of culpable homicide and
certain driving offences.

The applicant avers that as a
result of the foregoing he was not able to prepare for trial properly
and Mr Barnard made a request for further particulars of the charges
and gave notice of his intention to except to certain of them. Since
it was decided that the State must make the case docket available to
an accused I would have thought that further particulars of a
criminal charge have, generally – speaking, become redundant. The
particulars will, in most cases, be found in the witness statements
and other documents provided. But, according to the applicant, he
was advised by Mr Barnard that on 11^th April he would make
an application to compel the State to provide further particulars
should they not be forthcoming.

The State did not provide the
further particulars. This Court is not in a position to decide
whether such a stance was justified or not. It does not have the
contents of the case docket before it. Mr Barnard then applied to
the magistrate to compel the State to provide further particulars.
The applicant states that the public prosecutor, Mr Tjiroze contended
that:

“(a) Mr Barnard is
misleading the court; and

2. 
   he should be estopped’ from
   applying for further particulars; and

   
   

3. 
   the Criminal Procedure Act
   does not make provision for an exception to be raised to the charge
   sheet…”

   
   

According to the applicant, the
second respondent then told the parties to sort out their problems
and return to court at 2pm or words to similar effect. Mr Barnard
and Mr Tjiroze then consulted with the Senior State Prosecutor but
could not resolve the issue of further particulars. When they
returned to court in the afternoon the second respondent was informed
of this impasse and was asked to make an order compelling the State
to provide the further particulars which had been requested. The
second respondent then ascertained that the request had only been
served the previous Friday, the trial commencing on the following
Monday, and she refused the application. She ordered that the case
should proceed. Mr Barnard, according to the second respondent, then
informed the magistrate that the defence would appeal her decision
and the magistrate repeated that the case should proceed. Mr Barnard
then withdrew as the applicant’s legal representative. There is no
suggestion in the papers before Court that this action was taken on
the instructions of the applicant or after consultation with him. On
the contrary, as I read the papers it was action taken solely on the
initiative of Mr Barnard, himself.

I pause here in the narrative
of events to make the following comment. Mr Barnard’s withdrawal as
the applicant’s legal representative simply because an application
for further particulars was refused seems to me entirely
unreasonable. If the refusal resulted in unfairness or prejudice to
the applicant in the conduct of his defence this, ultimately, could
have been the subject of an appeal. It is not for a legal
representative to withdraw simply because a trial court makes an
adverse decision. The representative may be piqued at the decision
but his principal responsibility is to represent his client. Be that
as it may, Mr Barnard withdrew and effectively abandoned the
applicant.

Unfortunately, it was at this
stage that the conduct of the second respondent must be called in
question. She informed Mr Barnard to refrain from discussing what
had transpired with the applicant and rejected Mr Barnard’s request
to address her further. I should have thought that elementary
fairness would have dictated that an opportunity be given to the
applicant to discuss what had happened with his erstwhile lawyer. In
fact, according to the applicant, he then requested the magistrate to
stand the matter down so as to enable him to discuss the situation
with Mr Barnard but this request was also refused. The second
respondent’s response to this is as follows:

“ I then explained to the
accused that he has the right to obtain new legal representation but
due to the delay occasioned herein already, by his legal
representative, the matter would not be postponed but would proceed.

I also explained that the
applicant may pose questions and put his own version to the state
witnesses and that should he fail to do so, the witnesses would not
be called back to testify.”

The trial then proceeded with
two witnesses testifying. The following day this application was
brought as a matter of urgency.

I find the second respondent’s
conduct quite astonishing. She advised the accused that he had the
right to legal representation but in the same breath denied it by
saying that his trial will, there and then, proceed. What kind of
justice is that? In my view, none at all. Furthermore, the attempt
by the magistrate to lay blame for the delay in bringing the
applicant to trial at the door of his legal representative seems
wholly unfounded. On my reading of the papers it would seem that any
delay was due to the sluggish progress of the investigation of the
case by the State.

With that introduction I now
turn to the matters raised by Ms Katjipuka-Sibolile. She submitted
that the prayer in the application for an order that the second
respondent recuses herself is irregular because no application for
recusal was made to her. Generally – speaking, there would be
merit in that submission but in the present case there are, in my
opinion, exceptional circumstances. As I have indicated, the
magistrate conducted herself in an unfair and irrational manner. The
applicant has good cause to believe or perceive that he may not
receive a fair trial. Secondly, the second respondent does not
oppose this head of relief. This leads me to the conclusion that if
an application for recusal is made at a resumed hearing it will, in
all probability, be granted. What, therefore, is the point of
placing the applicant in the position of having to make a formal
application? It will simply cause further delay to proceedings which
have already become unduly protracted. I will therefore confirm that
part of the rule that the second respondent recuses herself and that
the trial of the applicant commences de novo before another
magistrate.

Another matter referred to by
counsel for the respondents was the power of this Court to order that
the prosecutor, Mr Tjiroze, be replaced by another prosecutor. Ms
Katjipuka-Sibolile submitted in her written heads of argument that
this Court has no such power. She contended that the decision to
delegate her powers to a particular prosecutor lies solely in the
discretion of the Prosecutor-General. Mr Heathcote, who appeared for
the applicant, countered this submission by referring to, and relying
upon, Smyth v Ushewokunze and Another 1998 (3) SA 1125 (ZSC).
In that case the applicant sought, inter alia, an interdict
restraining the prosecutor from taking any further part in the
preparation or presentation at the trial of certain charges laid
against the applicant. It was alleged that the prosecutor had
involved himself in a personal crusade against the applicant and that
he lacked the objectivity, detachment and impartiality necessary to
ensure that the State’s case was presented fairly. Having assessed
the evidence Gubbay CJ said at 1134 B-J:

“I have no difficulty in
acknowledging the inherent danger of unfairness to the applicant
attendant upon the first respondent prosecuting at the trial. Hence
the question that arises is whether the applicant’s right to a fair
hearing by an independent and impartial court established by law, as
enshrined in s 18(2) of the Constitution, is likely to contravened.
To put the enquiry more pertinently, whether the words ‘impartial
court’ are to be construed so as to embrace a requirement that the
prosecution exhibit fairness and impartiality in its treatment of the
person charged with a criminal offence. In arriving at the proper
meaning and content of the right guaranteed by s 18(2), it must not
be overlooked that it is a right designed to secure a protection, and
that the endeavour of the Court should always be to expand the reach
of a fundamental right rather than to attenuate its meaning and
content. What is to be accorded is a generous and purposive
interpretation with an eye to the spirit as well as to the letter of
the provision; one that takes full account of changing conditions,
social norms and values, so that the provision remains flexible
enough to keep pace with and meet the newly emerging problems and
challenges. The aim must be to move away from formalism and make
human rights provisions a practical reality for the people. See
Rattigan and Others v Chief Immigration Officer, Zimbabwe, and others
1995 (2) SA 182 (ZS) (1994 (2) ZLR 54) at 185E-186G (SA) and 57F-58E
(ZLR); S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR
277; 1995 (7) BCLR 793) at para (8); R v Big M Drug Mart Ltd (1985)
18 DLR (4^th) 321 (SCC) at 359-60. Section 18(2) embodies
a constitutional value of supreme importance. It must be interpreted
therefore in a broad and creative manner so as to include within its
scope and ambit not only the impartiality of the decision making body
but the absolute impartiality of the prosecutor himself, whose
function, as an officer of the court, forms and indispensable part of
the judicial process. His conduct must of necessity reflect on the
impartiality or otherwise of the court. See, generally, Chaskalson
et al Constitutional Law of South Africa at 27-18-27-19.

To interpret the phrase
‘impartial court’ literally and restrictively would result in the
applicant being afforded no redress at this stage. It would mean
that in spite of prejudicial features in the conduct of the first
respondent towards him, the applicant would have to tolerate the
first respondent remaining the prosecutor at the trial. I cannot
accede to the obvious injustice of such a situation.

I am satisfied that the
applicant has shown that his right under s 18(2) of the Constitution
to a hearing by an independent and impartial court is in jeopardy if
the first respondent proceeds as the prosecutor in this matter”

Article 12 of our Constitution
also gives a right to a fair hearing by an independent, impartial and
competent court established by law and, in my view, that
constitutional right should be interpreted in the same way as in the
Smyth case (supra). Indeed, during the course of oral
argument Ms Katjipuka-Sibolile conceded as much. It emerged that her
real argument was that an insufficient factual basis had been laid
for this Court to order that Mr Tjiroze be replaced by another
prosecutor. That, of course, is an entirely different matter.

Mr Heathcote submitted that Mr
Tjiroze was guilty of “culpably wrong argument” and that a
reasonable accused could understand this to be representative of
bias. With all due respect, I find this submission somewhat
far-fetched. On an almost daily basis this Court is faced with
incorrect or wrong reasoning or argument. What is to blame, more
often than not, is ignorance or misunderstanding, not bias.
Furthermore, the applicant does not even state that he perceives Mr
Tjiroze to be unfair or biased. In my view, no proper factual basis
has been laid in the papers before Court for an order requiring that
Mr Tjiroze be replaced by another prosecutor.

As for the relief sought in
paragraph 2 of the rule, that was not pursued with much vigour by Mr
Heathcote. As I have already stated, sufficient particulars of a
charge will usually be found in the witness statements and other
documents which the State is required to disclose. This Court is not
in a position to decide whether the particulars requested by Mr
Barnard are necessary or not.

That leaves the question of
costs. This Court undoubtedly has the power to make an order for
costs in an application such as the present: Koortzen and others
v Prosecutor-General 1997 NR 188. And I will make an
order for costs against the second respondent based on her unfair and
irrational behaviour which precipitated this application. However,
Ms Katjipuku-Sibolile submitted that such costs should not be de
bonis propriis. Counsel referred to Regional Magistrate
Du Preez v Walker 1976 (4) SA 849(A) where it was said at 852
H-853 A:

“It is a well-recognised
general rule that the Courts do not grant costs against a judicial
officer in relation to the performance by him of such function solely
on the ground that he has acted incorrectly. To do so would hamper
him in the proper exercise of his judicial functions.”

In the same case it was
emphasized at 853 H that:

“it is the existence of
mala fides on the part of the judicial officer that introduces the
risk of an order of costs de bonis propriis being given against him.”

In the present case there is
nothing to establish that the second respondent was actuated by bad
faith. Her conduct was, in all probability, born out of
incompetence. In these circumstances, I do not consider an order for
payment of costs de bonis propriis is appropriate. I will
simply order that the second respondent pays the costs of the
application.

Accordingly, it is ordered
that:

1) The second respondent is
recused as presiding officer in the criminal trial of the applicant
in case number E 2119/2003;

2) The said criminal trial is
to commence de novo before another magistrate;

3) The second respondent is to
pay the costs of this application.

………………………

HANNAH,J

ON
BEHALF OF THE APPLICANT: MR R HEATHCOTE

INSTRUCTED BY: HENNIE
BARNARD & PARTHERS

ON BEHALF OF THE
RESPONDENT: MS KATJIPUKU-SIBOLILE

INSTRUCTED BY:
GOVERNMENT – ATTORNEY