CASE NO.: CR 62/2012

NOT
REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

MAIN
DIVISION, HELD AT WINDHOEK

In
the matter between:

THE
STATE

and

TALENI
HANGO

HIGH
COURT REVIEW CASE NO.: 1267/2012

CORAM: HOFF,
J et VAN NIEKERK, J

Delivered
on: 18 July 2012

SPECIAL
REVIEW JUDGMENT

HOFF,
J: [1] This
is a special review in which the presiding magistrate asked that the
unterminated proceedings be set aside and that this Court should
order that the matter starts de
novo before another
magistrate.

[2] The
accused was charged with the crime of fraud. The allegation in the
charge sheet was that the accused fraudulently obtained fuel (valued
at N$6 182.52) from Wiemann’s Garage in the district of
Outjo to the actual or potential loss or prejudice of the Ministry of
Health and Social Services.

[3] The
accused was employed as a nurse by the Ministry of Health and Social
Services and it appears from the evidence led that the accused used
fleet fuel cards in order to obtain fuel and cash from
afore-mentioned filling station. The accused was represented by a
legal practitioner, Mr Titus Ipumbu during the proceedings in the
court a quo.

[4] The
State called four witnesses who gave evidence and who had been
cross-examined by the legal representative. The fourth state
witnesses was one Vilho Nangolo, an accomplice who implicated the
accused and testified in detail what role the accused played in the
commission of the said crime of fraud. This witness was thereafter
cross-examined, at length, by Mr Ipumbu. The matter was then
postponed to 27 June 2011 for the continuation of cross-examination.
The bail of the accused was extended. On 27 June 2011 the accused
was absent and a warrant was issued for his arrest and the bail was
provisionally cancelled. The matter was then postponed until 13 July
2011, Mr Ipumbu having indicated that he would bring an application
for the recusal of the magistrate.

[5] It
must be mentioned at this stage that Mr Vilho Nangolo, the
accomplice, had previously pleaded guilty to the charge of fraud, was
questioned by the magistrate in terms of the provisions of section
112(1)(b) of the Criminal Procedure Act, 51 of 1977, convicted of the
crime of fraud and sentenced.

[6] On
13 July 2011 the recusal application was heard. The application for
the recusal of the magistrate was based on two grounds. Firstly,
that there was an application for an inspection in loco to be
held prior to the evidence in chief or prior to the cross-examination
of the witness Vilho Nangolo, on which application the court did not
“pronounce itself”. Secondly, there was the contention
that the right of cross-examination by the legal representative had
been curtailed and that the magistrate had descended into the arena.
On 7 September 2011 the magistrate before he delivered his ruling on
the recusal application aptly remarked that it was “very sad
that an application for recusal is made so late in the proceedings of
this matter”.

[7] The
magistrate found that the reasons and grounds relied on by the legal
representative were “not sufficient for this Court to recuse
itself from this matter”.

[8] Nevertheless,
the following thereafter inter alia appears from the record:
(quoted verbatim).

“ … there is a principle that states that
Judges must ensure that justice is done and it must be seen to be
done and after all that is a fundamental principle and public policy,
and this Court is bringing in this matter and the above principle
because before this matter was separated, I took the plea of witness
Vilho Nangolo and I was the very presiding officer that extensively
question Nangolo in terms of section 112(1)(b) of Act 51 of 1977 and
I was the one that convicted and sentence him on a charge of fraud,
and in his plea he narrated to me how they committed this offence and
so forth and he also informed me what the accused (Taleni Hango’s)
involvement in the offence was, and this should have been most
crucial and acceptable ground upon which the application was suppose
to be lodge for my recusal, however this Court is raising that itself
pertaining to the duty of the Judge as stated in the above matter of
S v Rall supra that is for justice to be done and seen to be
done, it will be in accordance to justice for me to recuse myself
from this matter because I as a judicial officer is not here to fight
and battle with litigants but to see to it that justice is done and
seen to be done.

The application is therefore granted and I therefore
recuse myself from this matter and orders that this matter starts de
novo in front another presiding officer, this is not acquittal.”

[9] The
matter was hereafter struck from the roll.

[10] The
magistrate in his cover letter repeated that the reason why he had
granted the application was because he had extensively questioned the
witness, that the answers given implicated the accused person which
clouded his objectivity. The magistrate concluded his request as
follows:

“ … however if the Judge sees no problem
with me proceeding with this matter I shall gladly proceed with this
matter in which event the Judge may remit the matter to me to proceed
with the trial seeing into account that this matter started in 2009.”

[11] This
matter was sent on special review by the magistrate on 7 June 2012.

[12] In
S v Malindi and Others 1990 (1) SA 962 AD at 969G – 970A
Corbett CJ expressed himself as follows on the issue of recusal:

“The common law basis of the duty of a judicial
officer in certain circumstances to recuse himself was fully examined
in the cases of S v Radebe 1973 (1) SA 796 (A) and South
African Motor Acceptance Corporation (Edms) v Oberholzer 1974 (4)
SA 808 (T). Broadly speaking the duty of recusal arises where it
appears that the judicial officer has an interest in the case or
where there is some other reasonable ground for believing that there
is a likelihood of bias on the part of the judicial officer: that
is, that he will not adjudicate impartially. The matter must be
regarded from the point of view of the reasonable litigant and the
test is an objective one. The fact that in reality the judicial
officer was impartial or is likely to be impartial is not the test.
It is the reasonable perception of the parties as to his impartiality
that is important. Normally recusal would follow upon an application
(exceptio recusationis) therefor by either or both of the
parties, but on occasion a judicial officer may recuse himself mero
motu, i.e. without any prior application …”

[13] Examples
of where it was held that there were grounds of recusal are the
following:

(a) the fact that the trial
magistrate had signed, a search warrant, and had also read the
affidavit in support of the warrant (Silwana and Another v
Magistrate for the District of Piketberg and Another [2003] All
SA 350 at 356 E - J);

(b) the presiding officer’s
expression of disbelief after a section 115 statement setting out the
basis of the defence was regarded as a fundamental violation of the
right to have a fair trial (S v Klaas 2011 (1) SACR 630 ECG at
paras [6] – [7] );

(c) a magistrate who had heard a
formal bail application which the accused launched, should have
recused herself from the trial (S v Bruinders 2012 (1) SACR 25
WCC).

[14] I
am of the view that the magistrate had for the reason mentioned by
him correctly recused himself.

[15] It
must however be said that the magistrate having been appraised by the
witness Vilho Nangolo, of the role played by the accused should not
have taken the plea of the accused and should not have commenced with
the trial if it was reasonably foreseeable that there is a likelihood
that the co-accused would be called as a state witness against the
accused. Such a likelihood exists where in casu there was a
conviction and sentence after a separation of trials and in
circumstances where there is only one magistrate in a particular
magistrate’s district.

[16] Magistrates
must, in my view, in those circumstances refrain from inviting such
an accused person during the questioning in terms of section
112(1)(b), to disclose to the court the role of the co-accused, who
had stood down, or must stop an accused person where it appears to
the Court that he or she is about to provide the Court with
information which may implicate such co-accused person.

[17] The
request by the magistrate that this Court should order that the
proceedings in the Court a quo be set aside and that the
matter should start de novo cannot be granted since this
matter is not reviewable.

[18] This
Court in the unreported case of The State v Cornelius Isak
Swartbooi Case No. CR 09/2012 delivered on 15 February 2012
clearly indicated under which circumstances a matter may be forwarded
for special review.

[19] The
presiding magistrate recused himself and ordered that the matter
start de novo before another magistrate and this should be the
end of the matter. The legal consequences which naturally flow from
such a recusal by a presiding officer is that the proceedings are
quashed and the trial should start de novo (S v Malindi (supra)
). There is thus no need for this Court to confirm the order made by
the court a quo.

[20] In
the result the following finding is made:

The matter is not reviewable and
the record of the proceedings is returned to the clerk of the court.

_______

HOFF,
J

I
agree

________________

VAN
NIEKERK, J