(Judgment reportable)
Case No 548/97
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of:
CARL ROBERTS
Appellant
and
ADDITIONAL MAGISTRATE FOR
THE DISTRICT OF JOHANNESBURG,
MR VAN DEN BERG
First Respondent
THE ATTORNEY GENERAL OF THE
WITWATERSRAND
Second Respondent
CORAM:   VIVIER, HOWIE JJA, and MPATI AJA.
DATE OF HEARING 19 August 1999
DATE OF DELIVERY:     3 September 1999
Recusal - Appearance of bias - Amplification of test - Judicial
Officer’s conduct after conviction vitiating whole trial.
J U D G M E N T
/HOWIE JA:. . .

HOWIE JA:
[1] The question in this appeal is whether irregularities which
occurred in the course of the appellant’s criminal trial after he had been
found guilty vitiated not only the sentence but all the proceedings.
[2] He was convicted in a magistrate’s court of assault with
intent to do grievous bodily harm and sentenced to a fine and suspended
imprisonment.   By reason of alleged irregularities in the post-conviction
proceedings and alleged misdirections in the judgment on conviction he
took the matter to the High Court at Johannesburg on both review and
appeal.   The review application was  dealt with and the appeal
postponed.   The relief sought on review was the setting aside of the
conviction and the sentence.  The Court a quo (Van der Merwe and
Schwartzman JJ) found the alleged irregularities to have occurred.
However, understanding the appellant’s counsel to have conceded that
they did not warrant the setting aside of the conviction, the Court focused

its attention solely on their effect on sentence.   It concluded that the
sentence was indeed vitiated and ordered i a  that the application directed
at the conviction be dismissed, that the sentence be set aside and that the
matter be remitted for sentence afresh by a different magistrate.  In
seeking leave to appeal against this result the appellant contended that the
Court below had erred in not finding the entire trial to have been vitiated.
The leave application came before Heher and Schwartzman JJ and was
granted.
[3] The material upon which the question in issue must be
decided consists of the trial record and the affidavits comprising the
review application.   The relevant facts and circumstances which emerge
are these.   On the evening of 30 November 1994, and in the parking lot
of a steakhouse in a Johannesburg suburb, two incidents occurred
involving the appellant and the complainant.  The complainant was in the
company of the lady who by the time of the trial had become his wife, and

her sister.   Having had their evening meal, they were on the point of
leaving.   The sister had come in her own car and before driving away she
handed the complainant a hacksaw which she had borrowed from him
earlier.   As the three of  them were standing conversing before departure,
the appellant came out of the steakhouse where he was having supper and
passed them on his way to fetch cigarettes from his car.   Whether he
rushed rudely between them, as the complainant testified, or whether, as
he himself said, he bumped into the complainant accidentally, one or
other event triggered the first incident.   Each man swore profusely at the
other and a short while later the complainant hit the appellant with the
hacksaw.   According to the complainant he was standing with the
hacksaw in his hand trying to get into his car to leave.  The  appellant
came towards him and pushed his wife out of the way.   In frightened
reaction he struck the appellant once on the shoulder with the back of the
hacksaw.   He denied the allegation put to him by the attorney then

appearing for the appellant that he had struck the appellant multiple
blows on the back and on his neck or that he had done anything to
provoke the attack.
[4] The other material witness for the prosecution was the
complainant’s wife.   She testified that after the appellant pushed her aside
he hit out at the complainant who retaliated by striking the appellant
several times with the hacksaw.   Both she and the complainant said that
after being struck the appellant turned and  ran away into the steakhouse.
She denied the allegation put on his behalf that while running away he
had been chased by the complainant through the car park.   It is therefore
implicit in the prosecution evidence that the appellant was struck by the
complainant from the front.
[5] The appellant’s version of the first incident was that after the
exchange of abuse he pushed the complainant (not the wife) who reacted
by striking him a blow with the hacksaw.   The appellant turned and ran.

The complainant then chased him around the parking area continuously
hitting him from behind with the hacksaw.   As a consequence he
sustained numerous cuts to the back of his head and on his back and in
support of this allegation he claimed  to have a doctor’s report confirming
the existence of such wounds.   (As will appear presently there was
indeed such a report available.)    Eventually he eluded the complainant
and ran into the steakhouse.  There he met his uncle who was one of the
family party with whom he was having supper and he reported to the
uncle what had occurred.
[6] The second incident followed very shortly afterwards and it
was this occurrence which was the subject of the charge.   The detail is
unimportant for present purposes.   It suffices to say that the appellant and
the uncle went out and encountered the complainant in the car park.   The
latter was struck a number of fist blows and fell to the ground.   The
prosecution case was  that the appellant and his uncle perpetrated this

attack on the complainant and that while he lay on the ground they
persistently kicked him.   The appellant’s case was that he took no part
in the assault.   He said his uncle struck the complainant a number of fist
blows but did nothing to complainant on the ground.  It was not in dispute
that as a result of the second incident the complainant had, by the time of
the trial, lost the sight of his right eye, with only the uncertain prospect of
possible surgical restoration.
[7] The appellant’s attorney did not call medical evidence to
substantiate the existence of his alleged wounds.   Instead he called the
appellant’s mother.  She testified that on the following day she saw eight
or nine  cuts on his back and a bruise on one of his shoulders.
[8] From this brief summary it will be apparent that the issue of
guilt was essentially one of credibility.   In resolving it the magistrate
believed the complainant and his wife and rejected the appellant’s
evidence.   Although in the normal course a review does not usually entail

consideration of evidential detail or factual findings, it is nonetheless
necessary in this particular instance, in order  to provide the required
perspective for what follows, to refer, as I have done, to aspects of the
evidence and also to point to some of the trial court’s  credibility
conclusions.   In the interests of maintaining a logical sequence it is
appropriate to turn to those  conclusions now.
[9] The magistrate referred in his summary of the facts to the
appellant’s and his mother’s evidence as to injuries on his head and back
but failed  to state whether he accepted it or, if he did, what significance
he attached to it.   However, his acceptance of the evidence of the
complainant and his wife without reservation would seem to indicate that
he disbelieved or at least disregarded the injury evidence.   This despite
the fact that the mother’s testimony was not rejected and despite the
support which it afforded for the appellant’s allegation that he was struck
more than a few times and, what is more, struck from behind while being

pursued by the complainant.   Plainly, the injury evidence is inconsistent
with the prosecution evidence and the latter cannot explain it.
[10] As regards the appellant’s evidence the magistrate said that
he —
“(gave) the impression . . . of a person who is
very agile.  He is fit.  He does not sustain any
kind of physical setbacks.   He was quick
spoken and very witty and he answered the
questions asked by the prosecutor snappy and
fast forward.”
[11] Making due allowance for the fact that English was not the
magistrate’s mother tongue and for the inevitable pressures of delivering
ex tempore judgments in the course of a busy day, it is nevertheless far
from  clear what this passage was intended to convey apart, perhaps, from
the apparent finding that the appellant was conspicuously articulate.  The
appellant sought to establish that he did indeed suffer “physical setbacks”
during the first incident.  Conceivably, however, the reference to agility

was a preface to a later passage reading as follows (the reference being
to the first incident):
“(The complainant) being already
agitated by the verbal abuse fight, surely at that
stage would have encountered a fight to the
extent that you would have had injuries to your
face part or your body part but the injuries
sustained according to you, and which were
left were injuries to the back of your body.
Being to the back of your body the court
has to take note that you were agile enough at
that moment that if (the complainant) lunged at
you he would not have been able to strike a
blow to the front of your body.”   (My
emphasis.)
The magistrate then proceeded to find, on the strength of other
considerations,  which I need not discuss, that the complainant did not
chase the appellant through the car park.   It must follow, therefore, that
he rejected the allegation that the injuries (if they were sustained at all)
were inflicted in the circumstances alleged by the appellant.   That being

so, the passage just quoted could mean one of two things: either that any
injuries would probably have been inflicted from the front and therefore
the injury evidence was untrue or that the appellant was able to evade
each successive blow from the front by deftly turning his back and that
was how he came to be injured.    The appellant’s inferred readiness to
remain on the spot to go on risking repeated blows with the hacksaw
certainly conjures up an extraordinary picture but apart from that the
passage in question either fails to explain the injuries or explains them on
a basis unacceptably at odds with the prosecution evidence.
[12] The hacksaw assault - for this is plainly what it was on the
appellant’s case - was obviously a highly relevant prelude to the second
incident and it is remarkable that the defence attorney did not put the
contents of the medical report to the complainant and his wife or call the
doctor concerned so as to emphasise the number of injuries and, by doing
so, to establish the number of blows struck by the complainant.   I

consider, therefore, that consequent upon conviction the appellant was
entitled to feel aggrieved at the magistrate’s approach to the matter of the
first incident.   I think he would also have harboured the understandable
incentive, by reason of  what he was found to have done to the
complainant, to show as clearly as possible what the complainant had
done to him.
[13]     In these circumstances it is not altogether surprising that
subsequent to the conviction, when the case was postponed for some four
months, the appellant terminated the services of his erstwhile attorney and
engaged another attorney, and counsel, for the resumption.
[14]  When the case continued, counsel called a general
practitioner, Dr Lamberti, who had examined the appellant on the day
following the incidents in issue.   Counsel had not yet elicited the
examination findings when the magistrate said that he was not busy with
“the trial proceedings” and that he did not think that the evidence had any

effect on mitigation. He nevertheless allowed the evidence to continue for
a while but soon afterwards, still in evidence-in-chief, he stopped the
proceedings.  In his affidavit in the review application the appellant
alleges that up to that stage the magistrate displayed displeasure at the
calling of the doctor and disinterest in what he had to say.   In describing
the stopping of the proceedings, the appellant alleged:
“the Magistrate exclaimed ‘Just hold there, please stop’,
forcefully switched off the recording device, jumped up
exclaiming loudly ‘Right, that is it, that is it’ and rushed out
of Court.”
No affidavit by the magistrate was filed.   The prosecutor who appeared
in the case after the resumption (she did not appear in the matter up to that
stage) swore an affidavit which offers no denial of those allegations.
All she can say is that she cannot remember the magistrate’s alleged
displeasure and disinterest.
[15] Some minutes later the magistrate returned and the hearing

of the doctor’s evidence proceeded to completion.   It is not denied that
the magistrate bore the continuation with noticeable irritation.  The thrust
of the medical evidence was that the appellant exhibited eight fresh
separate abrasions; two were on the back of the neck, five on his back and
one on the anterior aspect of the top of the left shoulder; and each
abrasion indicated a separate blow.
[16] Counsel for the appellant then applied for an exercise of the
magistrate’s discretion to recall the complainant, obviously wishing,  one
necessarily infers, to cross-examine him inter alia on those aspects of the
medical evidence which are of patent significance relative to the first
incident.  The record shows - and this is not denied by the prosecutor -
that the magistrate denied counsel the opportunity to complete argument
on the matter and refused the application without reasons.  The appellant
goes on to allege that  while counsel attempted to argue the application
the magistrate switched off the recorder and maintained an intimidating

stare at counsel for some minutes, refusing in silence repeated requests for
the machine to be switched on and the matter to resume.  The
prosecutor’s only comment  in her affidavit is to describe the magistrate’s
stare as frustrated rather than intimidating.
[17]    Counsel then informed the magistrate that there were
material contradictions between the complainant’s evidence and his police
statement.  The magistrate indicated that this  was irrelevant and required
counsel to continue with the matter of mitigation.   Counsel responded by
applying for an adjournment so that he could tell the Senior Prosecutor of
the prosecution’s failure to draw the contradictions to the magistrate’s
attention during the presentation of its evidence.  When this application
was summarily refused counsel sought and was granted an adjournment
to consult with the appellant.  During the adjournment, and after such
consultation, counsel obtained the Senior Prosecutor’s agreement to the
handing in by consent of the complainant’s police statement.

[18]     When the hearing resumed the prosecutor informed the
court that she was prepared to hand in the statement which, she added,
had been available to the defence from the beginning of the trial.   The
magistrate commented that it should have been handed in before judgment
and that the issues pertinent to the judgment had already been dealt with.
The appellant says in his affidavit that the prosecutor’s tender of the
statement annoyed the magistrate to the extent that he again switched off
the recording  machine   and    told the prosecutor that he wanted to see
her.   The two of them then left the courtroom.  Counsel was not invited
to be present.  During this adjournment the appellant saw the magistrate
and the prosecutor in a nearby corridor in discussion.   The magistrate’s
attitude towards the prosecutor appeared to be heated and authoritative.
The appellant inferred that they were discussing his case and the
prosecutor confirms that this was indeed so.  When the proceedings again
resumed, admission of the statement was refused without the opportunity

for argument by counsel and without reasons for the refusal.
[19] The defence responded by applying for the magistrate’s
recusal on the ground of his private discussion with the prosecutor which,
said counsel, had been witnessed by his client, in whom it had engendered
misgivings regarding the fairness of the proceedings.   The magistrate
denied counsel the opportunity to argue the application and refused it
without reasons.
[20] In what ensued counsel was confined to arguing mitigating
factors on the evidence as it stood, which argument the magistrate heard -
according to the appellant - in “bored and disinterested” fashion.
[21] When, immediately after argument, the magistrate gave
judgment on the matter of sentence he described the first incident as
merely “an argument and a squabble”, omitting altogether any reference
to blows struck by the complainant or their reasonably possible
provocative effect relative to the second incident.

[22] Applying the law to these facts, the starting point is that the
trial took place while the Interim Constitution (the Constitution of the
Republic of South Africa, 1993) was in force and in terms of s 25(3) the
appellant was entitled to a fair trial.   Vital ingredients of such a trial are
that it be held in public (cf s 25 (3) (a) ) and that, on hallowed authority,
justice be done and be seen to be done.   In what is seen to be done,
appearances play a varied role in the fulfilment of the need for fairness.
The appearance of justice is not enough.  Justice must not simply seem to
be done.   On the other hand the appearance of bias may be enough to
vitiate the trial in whole or in part.
[23] That justice publicly be seen to be done necessitates, as an
elementary requirement to avoid the appearance that justice is being
administered in secret, that the presiding judicial officer should have no
communication whatever with either party except in the presence of the
other: R v Maharaj 1960 (4) SA 256 (N) at 258 B - C.   That is so

fundamentally important that the discussion between the magistrate and
the prosecutor in the instant case warranted on its own, without anything
more, the setting aside of the sentence.   Had such a discussion occurred
before conviction in this matter there can be no question but that the
conviction would have been fatally irregular: S v Seedat 1971 (1) SA 789
(N) at 792 F.   In Seedat’s case, it may be noted, the vitiating irregularities
occurred after conviction but only the sentence was set aside.   However,
guilt was never in issue because the appellant there pleaded guilty at the
start of the trial.   There was therefore no basis on which it could have
been said that the irregularities tainted the conviction.   The case is
therefore of no assistance now.
[24] Here, of course, the irregular discussion does not stand
alone.   It prompted an immediate recusal application and that application
brought to the fore the question whether the magistrate’s conduct bore the
appearance of bias.  The Court a quo found affirmatively but, as already

remarked, it understood the disqualifying effect of such bias to attach only
to the sentence.
[25] Bias in the sense of judicial bias  has been said to mean —
“a departure from the standard of even-handed
justice which the law requires from those who
occupy judicial office.”
See: Franklin v Minister of Town and Country Planning [1948] AC 87
(HL) at 103, [1947] 2 All ER 289 (HL) at 296 B - C.    What the law
requires is not only that a judicial officer must conduct the trial open-
mindedly, impartially and fairly but that such conduct must be —
“manifest to all those who are concerned in the
trial and its outcome, especially the accused”:
see S v Rall, 1982 (1) SA 828 (A) at 831 H - 832 A.
[26] It is settled law that not only actual bias but also the
appearance of bias disqualifies a judicial officer from presiding (or

continuing to preside) over judicial proceedings.   The disqualification is
so complete that continuing to preside after recusal should have occurred
renders the further “proceedings” a nullity: Council of Review, South
African Defence Force v Mönnig 1992 (3) SA 482 (A) at 495 B - C;
Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service  1996
(3) SA 1 (A) at 9 G.
[27] For too long, however, the legal test for the appearance of
judicial bias was uncertain.   This was because it was variously and, with
respect, at times confusingly stated both here and in England.   The way
in which the test has now come to be formulated in South Africa can be
traced in the following recent pronouncements of this Court.
[28] In S v Malindi 1990 (1) SA 962 (A) at 969 G - I it was said:
“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) Bpk 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. "
[29] Then, Mönnig's case foreshadowed a switch from
"likelihood" to "reasonable suspicion" but left the choice of formulation
open.  At 490 C - G it was said:
"It may be that this formulation [likelihood of
bias] requires some elucidation, particularly in
regard to the meaning of the word 'likelihood':
whether it postulates a probability or a mere
possibility.   Conceivably it is more accurate to

speak of 'a reasonable suspicion of bias'.
Suspicion, in this context, includes the idea of
the mere possibility of the existence, present or
future, of some state of affairs .   (The Oxford
English Dictionary sv 'suspicion and 'suspect');
but before the suspicion can constitute a ground
for recusal it must be founded on reasonable
grounds.
It is not necessary, however, to finally
decide these matters for, whatever the correct
formulation may be, I am satisfied that the
Court a quo was correct in holding that the
court martial did not pose the correct test when
deciding the recusal issue (see reported
judgment at 875 J - 876 B); and that the
circumstances were such that a reasonable
person in the position of second respondent
could have thought that
'. . . the risk of an unfair
determination on an issue such as
this was unacceptably high'.
(See reported judgment at 881 H - I)”
(The reported judgment mentioned  at the end of that extract is  the

judgment in Mönnig's case of the Full Court of the Cape Provincial
Division reported in 1989 (4) SA 866 (C).)
[30] Later, in BTR Industries South Africa (Pty) Ltd v Metal and
Allied Workers’  Union 1992 (3) SA 673 (A) it was finally laid down (at
693 I - J)
“[T]hat in our law the existence of a reasonable
suspicion of bias satisfies the test; and that an
apprehension of a real likelihood that the
decision maker will be biased is not a
prerequisite for disqualifying bias.”
The Court went on (at 694 A) to approve the statement by the Court a quo
in Mönnig’s case that
“provided the suspicion is one which might
reasonably be entertained, the possibility of
bias where none is to be expected serves to
disqualify the decision maker”
and at 694 J referred to the required suspicion as one which “might

reasonably be entertained by a lay litigant”.
[31] Adoption of the reasonable suspicion test in preference to the
real likelihood test was confirmed in Moch’s case at 8 H - I.
[32] Thus far, therefore, the requirements of the test thus finalised
are as follows as applied to judicial proceedings:
(1)
There must be a suspicion that the judicial officer might, not would,
be biased.
(2)
The suspicion must be that of a reasonable person in the position of
the accused or litigant.
(3) The suspicion must be based on reasonable grounds.
[33] It remains, in my respectful view, to add a gloss in order to
clarify one last aspect which could occasion confusion.   Is the suspicion
referred to one which the reasonable person merely might have or, on the
other hand, would have?   It will be noted that this Court’s formulations
and statements to which I have referred employ the words “could” (in

Mönnig’s case at 490 F) and “might” (in the BTR case at 694 A and J).
However, the point was one which did not arise for decision and a reading
of those judgments, and that of the Full Bench of the Cape Provincial
Division in Mönnig’s case, reveals clearly enough, I think, that the latter
was the source of this Court’s word usage.  That usage (rather than
choice), resulted really from the citation, with approval, of the passages
in the earlier Mönnig case at 879 B and 881 I in which the phrases “might
reasonably be entertained” and “could reasonably have thought”
respectively appear.   On analysis, the thrust of those passages is that the
test is satisfied if the suspicion of possible bias is reasonably founded.   In
view of what this Court was deciding it was that feature which prompted
the citations in question, not any preference for “might” or “could” above
“would”.   Significantly, there are other passages in the earlier Mönnig
judgment in which the word “would” is employed when expressing the
self same conclusion: see 881 D - E and H.   In the circumstances the

choice is therefore open.
[34] There can be little doubt that it would detract from the
efficacy and decisiveness of the bias test if one were to say that the
suspicion concerned is one which the notional reasonable person  might
have.  That would be inconclusive.   One needs to assess what such person
would think, not what such person might possibly think.   “Might” in that
regard, is no more significant than “might not”.   And, as pointed out in
Wade and Forsyth, Administrative Law, 7th ed, 482 “. . . if there was no
real possibility of bias, no reasonable person would suspect it.”   Equating,
as I think one must, “real” with “reasonable”, that comment emphasises
that if the suspicion of bias is one based on reasonable grounds the
reasonable person would have it.  If it were not so founded the reasonable
person would not have it.   “Might” has no place in this portion of the
formulation in my opinion.  One must therefore add to the requirements of
the test:

(4) The suspicion is one which the reasonable person referred to
would, not might, have.
[35] It is appropriate to observe that in England the House of
Lords, in R v Gough [1993] AC 646 (H. L. (E.),  [1993] 2 All ER 724 )
has now laid down that the test for apparent bias in relation to all courts
and tribunals (save where the tribunal has a pecuniary or proprietary
interest in the subject matter of the proceedings)  is the “real danger” of
bias.   It is satisfied if there appears to the Court (that is to say,  the
appellate court later considering or reviewing proceedings below) that
there is a “real likelihood, in the sense of a real possibility of bias”   which
possibility is equivalent to a “real danger” (at 668 B - E and 670 E - F
(AC),  735 j - 736 b and 737 j (All ER) ).   Although comparison with the
South African test will show several similarities there are plainly
differences.   The most effective illustration of that is the fact that counsel
for the appellant in Gough’s case urged the adoption of what happens to

be in virtually all respects the test in this country, having conceded
(rightly, so it was held) that there was no room for interference if the real
danger test prevailed.   He lost his case.   More particularly, the real
danger test eschews suspicion as one element and the intellectual
interposition of the reasonable person as another.   It is unnecessary for
present purposes to pursue the comparison further.   It suffices to say this.
In the main speech in Gough’s case it was remarked (at 667 H - 668 A
(AC), 735 g-h (All ER) ) —
“Since . . . the court investigates the actual
circumstances,
knowledge
of
such
circumstances as are found by the court  must
be imputed to the reasonable man; and in the
result it is difficult to see what difference there
is between the impression derived by a
reasonable man to whom such knowledge has
been imputed, and the impression derived by
the court, here personifying the reasonable
man.”

[36]     With the greatest respect I venture to say that there is an
important distinction between assessing the appearance of bias through the
eyes of a trained and experienced judicial officer and assessing it through
the eyes of a reasonable person, even with the latter’s possessing all the
relevant knowledge.   Wade and Forsyth (at 483) consider the real danger
test more objective than that which involves determining the impression
of a reasonable person.    Certainly, in eliminating the reasonable observer
the real danger test is more direct and no doubt the reasonable person,
although required to have reasonable grounds, would necessarily be
judged as viewing the events and circumstances from the subjectivity of
being, notionally, litigant or accused.   However, the real danger test may
well do no more than switch one element of subjectivity for another.   The
members of the court applying that test are by training and experience as
judicial officers themselves, better equipped, it is true, to exercise
objective judgment than a lay litigant but it is that very training and

experience which also give them a subjective position and knowledge not
possessed by the notional reasonable person.   They might know that a
judicial officer’s behaviour and comment unfortunately can, on infrequent
occasions, be inappropriate but without any real danger of bias existing.
They may more readily, therefore, in a given case regard a danger of bias
as not real where the reasonable impression of bias would nonetheless
reasonably lodge in the mind of a reasonable person suitably informed.
Essentially, the real danger test depends on the view from the Bench; the
reasonable suspicion test depends on the view from the dock.   This is
perhaps best illustrated by a statement in R v Inner West London Coroner,
ex parte Dallaglio [1994] 4 All ER 139 (CA) in which the Court of
Appeal analysed Gough’s case.   At 152 a-b it was said:
“(B)y the time the legal challenge comes to be
resolved, the court is no longer concerned
strictly with the appearance of bias but rather
with establishing the possibility that there was
actual although unconscious bias.”

Given a choice, the reasonable suspicion test accords better, in my
opinion, with the provisions and spirit of the Constitution.   It is more
conducive to acceptance by the accused or the litigants that proceedings
will in the end be fair.   And the constraining effect on those presiding
over trials and tribunals is salutary.
[37]    Turning to the application of the reasonable suspicion test to
the facts and circumstances of the present case, there can be no doubt that
the magistrate’s conduct, bearing and utterances from beginning to end of
the post-conviction proceedings would have provided the reasonable
person in the appellant’s position with eminently reasonable grounds to
think that the court might be biased.   Even by the time the recusal
application was made sufficient had occurred to create such impression.
That application was therefore wrongly refused and the “proceedings”
which followed constituted a nullity.
[38]     As to the proceedings prior to conviction, it was argued by

counsel who appeared for the State before us that there was nothing which
could have created the appearance of bias.   The conviction was not
infected by the later events and was therefore immune from interference.
That contention cannot succeed in my view.   The proper approach is to
determine whether the reasonable person in the appellant’s position would
have thought that the suspected bias might have motivated the conviction.
[39]     The fact that counsel for the appellant was not entitled after
the conviction to canvass the merits anew is not relevant. What he was
undoubtedly entitled to do was to canvass issues material to mitigation and
provocation by the complainant and the complainant’s credibility in that
regard were plainly important ones.   In that connection the medical
evidence served strongly to support the appellant and to contradict the
complainant in a vital respect.   It cast substantial doubt on the
complainant’s evidence that he struck only a single blow in fright with the
back of the hacksaw and did nothing to provoke the assault he suffered.

[40]     It is not necessary for present purposes to try to trace
procedurally the proper or likely course of proceedings had the magistrate
not acted in the irregular manner revealed by the evidence.   What is
important is that his conduct would, in my view, have caused the
reasonable person anxious and reasonable enquiry as to why the
appellant’s allegation of the hacksaw assault was rejected for no reason,
or  virtually incomprehensible reasons, in the judgment, and why all
attempts thereafter at establishing its occurrence, or at least the reasonable
possibility of its occurrence, were persistently dismissed without any
reasons save the untenable one  that counsel’s intended avenues of
investigation had nothing to do with mitigation.   Of course they did.   And
although counsel might properly have been confined to canvassing the
complainant’s credibility in that limited context, there can be little doubt
that if the complainant’s credibility suffered in that respect it would, on a
reasonable approach, have suffered, or at least been liable to suffer, in

other respects as well.   The fact that his general credibility would only
have been open to attack in an appeal is a procedural consideration which
would not have concerned the reasonable person observing the
magistrate’s post-conviction show of ostensible bias.  That person would,
in my assessment, have thought that the complainant’s credibility was
something which the magistrate was seeking, for no good apparent reason,
to protect from all criticism.   In turn that would have led to the suspicion
that the magistrate’s post-conviction conduct and attitude was evidence of
a possible bias which had persisted throughout the case and only surfaced
under the impact of counsel’s attempts to canvass the issue of provocation.
[41]     It follows that in this case there are circumstances which
compel the conclusion that the post-conviction irregularities taint the entire
trial and that the conviction cannot be allowed to stand.
[42]     The following order is made:

(a)
The appeal is allowed.

(b)
The order of the Court a quo is set aside and
substituted by the following order:
“1.
The application for review succeeds and the
conviction and sentence are set aside.
2.
By agreement, no order is made as to costs.”
__________________________
C T HOWIE
VIVIER    JA)
MPATI     JA)   CONCUR