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Tlhomelang v The State (C.O.A. 1/87 CC 7/87) [1987] BWCA 2; [1987] B.L.R. 210 (CA) (9 April 1987)

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to the appellant to raise the question whether the magistrate should have recused himself, if the appellant is convicted, on appeal or review to the High Court. In ordering that the case be remitted to the Chief Magistrate to continue with the trial, the Court made it clear that the Appellant had not lost any right to any remedy which he may have as a result of the Chief Magistrate's refusal to recuse himself. It was intimated that the Court would give reasons for its conclusion later and these now follow:
On the 24th October 1986 a charge sheet was issued against the appellant in terms of which he was alleged to have contravened Section 324 of the Penal Code, the allegation being that he had been in possession of a motor vehicle stolen outside Botswana having reason to believe the same to have been stolen; alternatively, it was alleged that he had received the stolen motor vehicle with reason to believe that same had been stolen, in breach of Section 321 (1) of the Penal Code.
Further particulars were requested and supplied and
his trial commenced on the 14th January 198 7 before
the Chief Magistrate of Gaborone. He pleaded not guilty.
The State case against him closed on the 15th January:
An application was then made on his behalf for his
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Court to set aside the magistrate's refusal to recuse himself and requested the Court to adjourn in order to enable the application to be made. The Chief Magistrate acceded to this request. The proposed application was duly made and heard on the 19th January 1981 by Barrington Jones J. The proceedings before the High Court were initiated by a Notice of Motion dated the 18th January 198 7. It was prayed that the decision of the Chief Magistrate not to recuse himself be reviewed and set aside and an order be made directing that the criminal trial be commenced de novo before a different magistrate. An affidavit was filed by the appellant and apparently served the same day on the Chief Magistrate, to which affidavit the Chief Magistrate replied the next day.
The basis of the review proceedings was that the Chief Magistrate's conduct was such as to justify the conclusion that he, the Chief Magistrate, had reached premature conclusions on vital issues in his case which would amount to a failure of justice. The appellant stated in his affidavit that he was "driven to apply for the relief sought herein in order to ensure that justice is not only done but is seen to
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be done" in the trial against him.
Barrington JonesJina written judgment delivered as expeditiously as the 21st January 1987 refused the application. Application was then made by the appellant to Barrington Jones J for leave to appeal against the judgment, but by written judgment dated the 30th January 198 7 this application was refused. A further application for leave to appeal was thereupon launched by the appellant before the Chief Justice in his capacity as a single judge of this Court. This application was for leave to appeal "in so far as such application may be necessary
It is stated in the Heads of Argument filed before us that the reason for this qualification was the appellant's belief that he was entitled as of right to appeal to this Court in terms of Section 10(a) of the Court of Appeal Act but the application was brought as a precaution in the event of this belief being ill-founded.
In a written judgment dated the 16th February 198 7 the learned Chief Justice dismissed the application for leave to appeal. The appellant consequently noted the appeal to this Court. Section 10 of
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conclusion which the Court has come to. The question as to whether the decision of the Chief Magistrate not to recuse himself was an interlocutory one and one that could not be raised at the stage at which the trial had reached in the magistrate's court was not apparently raised or considered by Barrington Jones J nor was it raised or dealt with by the learned Chief Justice when he refused leave to appeal. This aspect of the matter seems to me to be important and should be considered by this Court.
In Wahlhaus and others v Additional Magistrate, Johannesburg and another 1959 (3) SA 113 (A) the headnote, which correctly reflects the judgment of OGILVIE THOMPSON J A, with whom"" the other four members of the Court concurred, reads:-
"While a Superior Court having jurisdiction in review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of criminal proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained. In general, however, it will hesitate to intervene, especially have^'r'egard to the effect of such a procedure upon'the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal will ordinarily be available. And while the attitude of the Attorney-General is obviously a material element,
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his consent does not relieve the Superior Court from the necessity of deciding whether or not the particular case is an appropriate one for intervention. Furthermore, the prejudice inherent in an accused's being obliged to proceed to trial, and possibly conviction, in a magistrate's court before he is afforded an opportunity of testing in the Supreme Court the correctness of the magistrate's decision overruling a preliminary, and perhaps fundamental, contention raised by the accused, does not per se necessarily justify the Supreme Court in granting relief before conviction."
I respectfully agree with the principle there laid down which has been followed in a number of cases in South Africa. The fact that the representative of the State did not object to the matter being heard on review by Barrington Jones j'atthe stage the proceedings had reached in the court below seems to me to be irrelevant. What is relevant is what Barrington Jones J had to decide and what, in my opinion, he should have decided, i.e. whether on the facts set out and admitted this was a proper case for intervention by the High Court during the course of a trial. That the decision of the magistrate not to recuse himself at that stage was an interlocutory one seems to me to be clear. Leaving aside for the moment the question of "justice not only being done or seen to be done" the primary question is whether the ruling by the magistrate irreparably anticipated that
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the appellant would be found guilty by the magistrate and, if so found guilty his failure to recuse himself could not then be raised before the High Court. See, for example,
South Cape Corporation v Engineering
Management Services 1977 (3) SA 534 at 550 (AD)
Pretoria Garrison Institutes v Danish Variety Products (Pty) Limited 1948 (1) SA 839 (AD) at 870.
There are cases where, as stated in Wahlhaus, supra the Court will interfere during the course of criminal proceedings in a court below upon certain rulings or other matters in rare cases where grave injustice may otherwise result or where justice may not by other means be attained. A good example of the court exercising its discretion to intervene during the course of a trial in order to require a magistrate to recuse himself is the case of S v Herbst 1980 (3) SA 1026 (EDC). The conduct of the magistrate in that matter was, with respect, correctly held to be so irregular as to justify the Court's interference during the course of the proceedings in order to disqualify the magistrate from hearing the matter any further.
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As in Wahlhaus supra at 120, I do not think it desirable in this case to express a view, certainly not any one that might be adverse to the appellant on the question as to whether the Chief Magistrate has in fact disqualified himself. This is a matter which might have to be determined if and when the trial against him is concluded and if, an 1 then only, the appellant has been found guilty. Although, as stated, it would be open for the Higl: Court to intervene in appropriate cases during tho course of a trial in the court below to prevent grave injustice, it is clear however that this pcwer is one which must be sparingly exercised.
Cf. Wahlhaus, supra at p 120
As was there said by OGILVIE THOMPSON J A it is impracticable to attempt any precise definition of the ambit of this power for each case must depend upon its own circumstances. There is a general principle that it is inconvenient and undesirable to hear appeals piecemeal and the courts have Ieclined to do so "except where unusual circumstances called for such a procedure". The idea of a trial is that it should be as much as possible continuous and that it should not be stopped.
Cf. R v Adams 1959 (3) SA 753 at 76.' (A)
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I agree:

D.T. HALLCHURCH
Judge of Appeal

RULING ON SUBMISSION
It is safe to say prima facie case of stolen car and possession. ' Indeed common cause. Did accused have reason to believe it was stolen or did he receive a car knowing it to be stolen.
Previous number false belonged to another car. Yet accused himself registered
it - according to witness as caange of number - not ownership . Produced J4kc book
"7 which'ikeGic-vAf •• book like as car was stolen.
The disc supposed to be on windscreen is transparent forgery obvious to layman and noi: expert required.
It is common knowledge/cars abound in Botswana and have done so for a considerable time.
It is said people did not notice discrepancies in documents why should they -no peiriaonas iotaceased - court asked to believe he paid 35000 pula it is not a cycle or a bakkie we are concerned with - does anyone and accused'appears man of intelligence and presence - pay this sort cff money without taking every precaution to verify details of vehicle. Who are these salemen - selling 35000 pula vehicles who now cannot be found - thege are probably good reasons why Bope cannot be found.
Did not accused investigate at all before parting with 35000 to what is it appears an unknown person. It strains credulity of court.
Accused has a case to answer. I place him on his defence.
Options explained to accused. Any witnesses?