S v Basson (CCT30/03A) [2005] ZACC 10; 2005 (12) BCLR 1192 (CC) (9 September 2005)

Case CCT 30/03

THE STATE

versus

BASSON

Heard on : 21 – 25 February 2005

Decided on : 9 September 2005

JUDGMENT

INDEX

INTRODUCTION para 1

Background to the three issues raised

in this Court para 3

(a) Bias para 3

(b) The admissibility of the bail record para 6

I BIAS OF THE TRIAL JUDGE para 19

(a) Bias in February 2000 or at the end of the day? para 20

(b) The legal test for bias para 23

(i) Remarks and interventions by the judge para 41

(aa) The state was conducting “trial by ambush” para 45

(bb) The judge was “bored” by the state’s evidence para 46

(cc) Counsel for the state was “confused” para 48

(dd) The comment concerning state counsel’s ego para 49

(ee) Laughter about Asset Forfeiture application para 50

(ff) Judge’s comments concerning General

Knobel’s evidence para 52

(gg) Comment concerning witness’s sympathy for

the accused para 55

(hh) Remarks concerning “Project Coast” para 58

(ii) Judge’s conduct during cross-examination of

Dr Basson para 65

(jj) Assessment of these challenges para 66

(ii) Mistaken legal rulings and findings of fact para 69

(aa) Attorney-client privilege para 72

(bb) Refusal to call three further witnesses para 74

(cc) Implausibility of Dr Basson’s evidence para 80

(dd) Judge’s refusal to call another witness para 85

(ee) Erroneous factual finding: Mrs Webster para 87

(ff) Judge’s assessment of evidence: Dr Basson and

General Knobel para 89

(gg) Erroneous factual finding: Conspiracy to murder

Mr Dullah Omar para 96

(hh) Repeated mistakes: legal implications para 97

(ii) Assessment of these challenges para 100

(d) Conclusion on bias challenge para 102

II ADMISSIBILITY OF BAIL RECORD para 104

(a) The law on the admissibility of bail records para 107

(b) The approach of an appeal court to exclusion of bail record para 109

III THE QUASHING OF THE CHARGES para 124

(a) Preliminary legal questions para 128

(i) An appeal against the SCA or the High Court? para 129

(ii) The Adams rule para 135

(aa) Origin and application of the rule para 135

(bb) The proper construction of section 319 para 140

(iii) The proper approach to appeals against the refusal of

condonation by the SCA para 154

(aa) An appellate court’s review of discretion para 154

(bb) The degree of non-compliance and explanation

therefor para 157

(iv) Should the refusal by the SCA to reserve question 11

be overturned? para 161

(v) Nature of the quashed charges and South Africa’s

international law obligations para 170

(vi) Conclusion on the application for leave to appeal the

condonation decision para 185

(b) Is the decision of the High Court upholding the exception

wrong? para 188

(i) The charges that were quashed para 188

(ii) The interpretation of section 18(2) para 205

(aa) Conspiracy in South African law para 207

(bb) The Military Code para 211

(cc) Murder beyond the borders of South Africa para 217

(dd) Namibia para 220

(ee) The scope of criminal jurisdiction para 223

(d) Double jeopardy para 248

(e) Conclusion: Quashing of the charges para 260

SUMMARY AND ORDER

(a) Summary para 261

(b) Order para 265

*********************

THE COURT:

INTRODUCTION

In 1999, Dr Basson, the respondent in this Court, was charged in the High Court on 67 counts, including murder, fraud, certain drug offences and conspiracy to commit various crimes. The majority of the offences were allegedly committed before 1994 when the respondent worked in a division of the South African Defence Force (the SADF) called the Civil Co-operation Bureau and headed South Africa’s bacterial and chemical warfare programme. In April 2002, at the end of a long trial, the respondent was acquitted on all counts. This application for leave to appeal which is brought by the state against a judgment of the Supreme Court of Appeal (SCA) arises from these criminal proceedings. In essence, it concerns three central issues: whether the conduct of the judge during the trial proceedings was such as to give rise to a reasonable perception of bias; secondly, whether the trial court was wrong to exclude the evidence led in bail proceedings from the criminal trial; and thirdly, whether the state is entitled effectively to appeal against the quashing of certain charges at the outset of the proceedings at this stage; and if it is, whether those charges were wrongly quashed. Each of these issues gives rise to further supplementary issues which will be elucidated in the course of this judgment.
A preliminary hearing in respect of this application for leave to appeal was held in November 2003 after which this Court handed down a judgment in which it held that all three issues under consideration concerned constitutional matters within the jurisdiction of this Court.^¹ Leave to appeal was not granted, however, as it was held to be premature at that stage to deal fully with the second requirement for leave to appeal, namely whether it is in the interests of justice for leave to be granted. Following upon the preliminary hearing, the relevant portions of the record of the criminal proceedings and proceedings on appeal, amounting to some 22 000 pages, were lodged with the Court. Full argument on the application and its merits was heard from 21 to 25 February 2005.^²

Background to the three issues raised in this Court

(a) Bias
Just more than three months into the trial in the High Court, on 14 February 2000, the state applied for the recusal of the judge on the grounds that he was biased and had prejudged the case. On 16 February 2000, the judge refused this application holding that a reasonable person would not have believed that he was biased against the state.^³ The trial then continued and ran until 26 September 2001. Judgment was handed down on 11 April 2002.
Immediately after judgment was handed down, the state applied to have a question of law relating to the failure by the judge to recuse himself reserved for decision by the SCA. On 3 May 2002, the High Court handed down judgment in which it reserved a single question of law for consideration by the SCA and three further questions conditional upon that question being answered in favour of the state. The single question reserved was whether the state was barred from seeking the reservation of the question of law as to whether the trial judge ought to have recused himself in February 2000 because it had failed to indicate in February 2000 that it intended to seek such reservation. If that question were answered in favour of the state, the court reserved a further question for consideration by the SCA: whether the trial judge had erred in law when he refused to recuse himself on the grounds of bias in February 2000.
The SCA held that the question whether a judge was biased gave rise to a question of fact not law, and could not be reserved under the provisions of section 319 of the Criminal Procedure Act, 51 of 1977. It accordingly struck both questions relating to bias from the roll. In its preliminary hearing on the application for leave to appeal, this Court held that the question of whether the trial judge was biased did give rise to a question of law, not fact, and that such question did give rise to a constitutional matter. The Court did not decide, however, whether in delaying its application to reserve the question of law the state became barred from seeking the reservation of the question later. Nor did it decide whether the recusal issue should be determined on the basis of the trial record up until February 2000 only, or whether it should be determined on the full record of the trial. These are matters to be determined in this case.

(b) The admissibility of the bail record
The Office for Serious Economic Offences (OSEO) first started investigating allegations of fraud against the respondent during 1992. OSEO is an institution that was established in terms of the Investigation of Serious Economic Offences Act, 117 of 1991 (the ISEO Act).^⁴ Section 5(8) of the Act^⁵ provides that witnesses examined in terms of section 5(6) of the Act^⁶ may not refuse to answer questions on the ground that the answers may be incriminating, but it also provides that no evidence of such questions or answers may be admitted in subsequent criminal proceedings against the witness concerned.
The allegations against the respondent concerned the financial management of a top secret project of the South African Defence Force code-named Project Coast whose purpose was to develop a chemical and biological warfare capability for South Africa. The respondent who is a cardiologist was the leader of this project. During the OSEO fraud investigation, the respondent was subjected to 39 days of questioning by Advocate Fouché of OSEO in terms of section 5 of the ISEO Act. The respondent was not legally represented during this questioning.
The respondent was first arrested on charges of contravening the Medicines and Related Substances Control Act, 101 of 1965 during 1997.^⁷ A bail hearing was held and the accused was granted bail. Later in the same year, he was arrested again, this time on charges of fraud related to the OSEO investigation.^⁸ Once again a bail hearing was held over a series of days at the end of which the accused was granted bail. During these bail proceedings, the state was represented by Advocate Fouché who had conducted the OSEO questioning. The respondent was questioned on the subject matter of the fraud charges, and the record of the OSEO questioning was used. It is the admissibility of this bail record which is in issue in this application.
At an early stage, the defence requested the state to indicate whether it intended to rely on the record of the bail proceedings in the criminal trial. The state responded by indicating that it did. The defence then successfully sought a ruling from the trial court that the bail record was inadmissible. This argument was heard before the accused had pleaded, partly to avoid an unnecessary delay in the trial which would otherwise have been occasioned by the defence application to quash certain of the charges. The state argues that the trial court erred in hearing argument on the exclusion of the bail record at this early stage and also in making a decisive ruling on the entire record in circumstances where the state had not indicated in what respects it intended to rely on aspects of the record.
At the end of the trial, the state applied for the reservation of a question of law in respect of the trial judge’s decision to refuse to admit the bail record, among other things. The judge conditionally reserved two questions of law in this regard. The first was whether the court had erred in law when it heard argument regarding the admissibility of the bail record before the accused had been called upon to plead; and secondly whether it had erred in law when it ruled that the bail record was inadmissible in the trial.
These two questions of law were made conditional upon the SCA answering a further question reserved by the judge in favour of the state. That question related to whether the state was barred from seeking a reservation of a question of law as to whether the trial judge ought to have recused himself in February 2000 because it failed to indicate in February 2000 that it intended to seek such reservation. It is not immediately clear why the judge should have made the reservation of the two questions concerning the bail record conditional upon the SCA’s ruling in the state’s favour on the question of whether the state should have indicated that it intended to pursue a remedy in respect of the judge’s refusal to recuse himself. The questions do not seem to be inter-related at all. Be that as it may, nothing turns on this, for the SCA did deal with each of the conditionally reserved questions of law.
When the matter came before the SCA,^⁹ it ruled that the admissibility of the bail record gave rise to factual issues and not questions of law. It therefore struck both questions from the roll. In this Court’s preliminary judgment, it held that the SCA had erred in this respect and that the question of the bail record did give rise to a question of law and to a constitutional issue. The application for leave to appeal now needs to be considered in the light of that decision.

(c) The quashing of the charges
Before the commencement of the trial, the respondent objected to nine counts in the indictment on various grounds. After hearing argument, the judge dismissed two of the objections and upheld seven. Six of the seven objections upheld related to six counts in terms of section 18(2) of the Riotous Assemblies Act, 17 of 1956^¹⁰ and to conspiracies to commit serious crimes, mainly murder, beyond the borders of South Africa, in England, Mozambique, Swaziland and Namibia.^¹¹
The judge held that the section did not criminalise conspiracies entered into in South Africa to commit crimes beyond the borders of South Africa. He held therefore that the charges to which the respondent objected did not disclose offences. After the judge handed down his judgment on 12 October 1999,^¹² the state indicated that it did not intend to appeal the judgment quashing the charges immediately. As will appear later in this judgment, this statement became a contentious issue between the parties.^¹³ The trial proceeded. When judgment was handed down on 11 April 2002, the state then launched an application in terms of section 319(1) of the Criminal Procedure Act^¹⁴ to have certain questions of law reserved for consideration by the SCA. One of those questions was whether the judge had erred in quashing the charges on the basis that they did not disclose an offence. The judge refused to reserve this question of law.
In June 2002, the state petitioned the SCA in terms of section 319(3) read with section 317(5) of the Criminal Procedure Act for the reservation of this question of law.^¹⁵ This petition was procedurally defective and in November 2002 the registrar of the SCA wrote to the state’s lawyers asking for it to be rectified. A month later the state filed a further affidavit seeking to rectify the situation and asking for condonation of its non-compliance with the rules.
When the matter was heard by the SCA in May 2003, it refused the application for condonation with regard to the reservation of additional questions of law, including the question relating to the quashing of the charges. The state then sought leave to appeal to this Court against that decision.
In its judgment after the preliminary hearing, this Court held that the question whether the charges that had been quashed did in fact disclose an offence did constitute a constitutional issue, even though the conduct concerned had taken place before the Constitution came into force. The Court expressly refrained from determining, however, the circumstances in which it would interfere with a decision by the SCA refusing condonation for non-compliance with its rules. That is a matter which will have to be determined in this case.
Because of the nature of the complaint concerning bias, which if upheld would vitiate all the proceedings before the High Court, it is appropriate to deal with it first. We then deal with the bail record, and lastly the quashing of the charges.

I THE BIAS OF THE TRIAL JUDGE

In its judgment after the preliminary hearing, this Court held that the question whether the conduct of a judicial officer gives rise to a reasonable apprehension of bias is a question of law.^¹⁶ The following questions remain to be considered: whether, by delaying its application to reserve the question of law relating to recusal, the state was barred from seeking the reservation of that question;^¹⁷ whether the recusal issue must be considered on the trial record until February 2000 when the recusal application was made or on the full record;^¹⁸ if it is limited to the question of bias on the record until February 2000, whether the state may rely on events thereafter to establish the existence of bias in February 2000; and whether, if the state succeeded on the question of bias, it could be said that the accused had been in jeopardy of conviction which would preclude his re-trial under the rule against double jeopardy.^¹⁹

(a) Bias in February 2000 or at the end of the day?

The first question to be considered is whether the issue of bias can only be considered in the light of the record until the judge’s decision not to recuse himself in February 2000, or whether it should be considered on the basis of the entire record of the trial. The state submits that the question reserved by the High Court in respect of bias was general and not limited only to events up to and including the recusal decision of February 2000. The findings to which the question refers include those made after February 2000, and even findings made in the application for leave to appeal. It was argued on behalf of the state that even if this Court were to find that the question of bias concerns bias only up to the recusal application in February 2000, the state would still be entitled to rely on events after February 2000, because bias is not something which simply arises and then disappears and that words and conduct after the specific event might show a predisposition of the judicial officer throughout the proceedings. Incidents which occurred and rulings which were made by the trial judge after February 2000 may be considered as evidence of the fact that he was subconsciously biased at the time of the initial recusal hearing. If he were biased, it would be artificial to suggest that the bias existed only up until February 2000 and then went away. Therefore, evidence of events which occurred after February 2000 is relevant to the question of whether the trial judge ought to have recused himself in February 2000.
The respondent is adamant that the initial question reserved by the state was only concerned with bias manifested up until February 2000 and argued that this is clear from the judgment of the High Court on leave to appeal. So adamant was the respondent’s counsel, that they submitted no argument on the events after February 2000. The state sought to broaden the scope of the bias question to bias at the end of the day, because it was aware that the original question related only to bias up to 4 February 2000. The respondent points out that before the SCA the state conceded that it did not rely on events subsequent to 4 February 2000 in its appeal based on bias. The respondent further submits that the question of bias at the end of the day was never considered by the SCA.
For the purposes of this application we have assumed in favour of the state that this Court is entitled to consider allegations of bias related to events occurring before and up to February 2000, as well as subsequent events, up to the conclusion of the trial.

(b) The legal test for bias
Access to courts that function fairly and in public is a basic right. Section 34 of the Constitution states:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

The impartiality of judicial officers is an essential requirement of a constitutional democracy and is closely linked to the independence of courts. Section 165(2) of the Constitution states:

“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others^²⁰ (SARFU) this Court held that a judge who sits in a case in which she or he is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that the judge may be biased, acts in a manner inconsistent with section 34 of the Constitution and in breach of the requirements of section 165(2) and the prescribed oath of office.^²¹ It went on to lay down the following test for recusal:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”^²² (footnotes omitted)

As far as criminal trials are concerned, the requirement of impartiality is also closely linked to the right of an accused person to a fair trial, which is guaranteed in section 35(3) of the Constitution. This right has been analysed by this Court in a number of cases.^²³ The Court has stated that criminal trials have to be conducted in accordance with notions of basic fairness and justice.^²⁴ The nature of the right to a fair trial as a comprehensive and integrated right has been emphasised.^²⁵ The fairness of a trial is clearly under threat if a court does not apply the law and assess the facts of the case impartially and without fear, favour or prejudice.^²⁶ The requirement that justice must not only be done, but also be seen to be done has been recognised as lying at the heart of the right to a fair trial.^²⁷ The right to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the state.^²⁸
The impartiality of a judicial officer is crucial to the administration of justice. So too is the perception of his or her impartiality. These principles are recognised in many foreign democracies. Thus, in Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening)^²⁹ this Court cited with approval the following reasoning of Le Dain J in the Canadian Supreme Court in the case of Valente v The Queen:^³⁰

“Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.”^³¹

Similar concerns were expressed by this Court in S v Jaipal as follows:

“It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”^³²

In SARFU,^³³ the Court identified two different approaches for determining “the appearance of bias”. The focus of the one is “real likelihood of bias” and of the other “a reasonable suspicion or apprehension of bias”.^³⁴ The Court accepted, relying on earlier authority of the Appellate Division^³⁵ (as the SCA then was) that it was not necessary for a litigant who complained of bias to establish that there was a real likelihood of bias.^³⁶ The Court then went on to consider the distinction between “suspicion” and “apprehension” and, to avoid the potentially inappropriate connotations that the word “suspicion” might engender, preferred the phrase “reasonable apprehension of bias” to “reasonable suspicion of bias”.^³⁷
The Court held that there was a presumption in our law against partiality of the judicial officer.^³⁸ In reaching this conclusion it reasoned as follows:

“This is based on the recognition that legal training and experience prepare Judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence.”^³⁹

The effect of this presumption is that an applicant who alleges that a judge is biased or reasonably apprehended to be biased must establish that.^⁴⁰ The Court also acknowledged that all judges as human beings bring to their work their life experience which means that they are not neutral in an absolute sense. The Court held that it is not improper for judges to have individual perspectives and for these to be brought to bear on their adjudication of cases.^⁴¹

In South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)^⁴² (SACCAWU) this Court emphasised that not only is there a presumption in favour of the impartiality of the court, but it is a presumption which is not easily dislodged. Cogent and convincing evidence is necessary in order to do so.^⁴³ The Court, repeating what had already been held in SARFU, referred to the two contexts in which reasonableness fits into the enquiry. It emphasised that not only must the evaluation be made from the perspective of a reasonable person, but the perception of bias must itself also be reasonable.^⁴⁴ In this regard, Cameron AJ writing for the majority, stated:

“It is no doubt possible to compact the ‘double’ aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. As Cory J stated in a related context on behalf of the Supreme Court of Canada:

‘Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.’”^⁴⁵

In SARFU and SACCAWU the Court was concerned with the issue of perceived bias in appellate courts where the bench is composed of more than one judge. In evaluating the situation regarding a trial before a single judge, a court must be sensitive to the different nuances of such a “live” situation in a court of first instance, where demeanour or body language, tone of voice, the timing of remarks and the emotional response of participants in exchanges to one another may play a role. The context of the proceedings will be relevant to the determination of the apprehensions of a reasonable person. However, in principle, the test remains the same.
When considering the issue of bias in a trial court, the following must be borne in mind. There is a difference between grounding a complaint of bias on the conduct of the judge in hearing the case and grounding such a complaint on the relationship between the judge and one of the parties or witnesses. It is generally far harder to establish a reasonable apprehension of bias in the former case. As Harms JA noted in a recent decision of the SCA:

“. . . a Judge is not simply a ‘silent umpire’.^⁴⁶ A Judge ‘is not a mere umpire to answer the question “How’s that?”’ Lord Denning once said.^⁴⁷ Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence. A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources.”^⁴⁸ (footnotes in the original)

In that case, the litigant had complained of the judge’s questioning in a case which it argued had suggested that the judge had disclosed a predisposition to an issue in the case.

This reasoning is similar to that adopted by the Appellate Division in the earlier case of R v Silber^⁴⁹ where Schreiner JA reasoned as follows:

“[T]he grounds relied upon for suggesting bias were not facts outside the course of proceedings such as are ordinarily put forward as reasons why the judicial officer in question should not try the case. The grounds related purely to what had happened in the course of the trial. Neither counsel has been able to find any reported case in which an application for recusal has been made in the course of a trial on the ground that the judicial officer has shown bias by his conduct of the proceedings. And this is not surprising, since the ordinary way of meeting any apparent bias shown by the court in its conduct of the proceedings would be by challenging his eventual decision in an appeal or review. Bias, as it is used in this connection, is something quite different from a state of inclination towards one side in the litigation caused by the evidence and the argument, and it is difficult to suppose that any lawyer could believe that recusal might be based upon a mere indication, before the pronouncement of judgment, that the court thinks that at that stage one or the other party has the better prospects of success. It unavoidably happens sometimes that, as a trial proceeds, the court gains a provisional impression favourable to one side or the other, and, although normally it is not desirable to give such an impression outward manifestation, no suggestion of bias could ordinarily be based thereon. Indeed a court may in a proper case call upon a party to argue out of the usual order, thus clearly indicating that its provisional view favours the other party, but no reasonable person, least of all a person trained in the law, would think of ascribing this provisional attitude to, or identifying it with, bias.”^⁵⁰

These considerations need to be borne in mind in the assessment of the state’s argument that it is the conduct of the judge during the trial that has given rise to the complaint of bias. As Schreiner JA pointed out in his remarks in the passage from Silber just quoted, it is difficult for a litigant to establish bias simply on the basis of the conduct of a judge during a trial. Judges are not silent umpires but may and should participate in the trial proceedings by asking questions, ensuring that litigants conduct themselves properly and making rulings on the admissibility of evidence and other matters as the trial progresses. Inevitably litigants will from time to time be aggrieved about both the content of the rulings made by the judge and the manner in which a judge may ask questions or intervene. Such grievances need to be construed in the realisation that trials are often emotional and heated as a result of the disputes between the parties. A court considering a claim of bias should be wary of permitting a disgruntled litigant to complain of bias successfully simply because the judge has ruled against them, or been impatient with the manner in which they conduct their case.
On the other hand, it is important to emphasise that judges should at all times seek to be measured and courteous to those who appear before them. Even where litigants or lawyers conduct themselves inappropriately and judicial censure is required, that should be done in a manner befitting the judicial office. Nothing said in this judgment should be understood as condoning discourteous or inappropriate remarks by judicial officers. Inappropriate behaviour by a judge is unacceptable and may, in certain circumstances, warrant a complaint to the appropriate authorities, but it will not ordinarily give rise to a reasonable apprehension of bias. It will only do so where it is of such a quality that it becomes clear that it arises not from irritation or impatience with the way in which a case is being litigated, but from what may reasonably be perceived to be bias.
Finally, it should be noted that the state submitted in this Court that the conduct of the judge in the trial was biased, though not consciously so, and that his conduct gave rise to a reasonable apprehension of bias. The specific conduct referred to by the state to establish this charge must be considered in the light of this submission.

(c) Alleged specific manifestations of bias
The facts and allegations upon which the state relies in support of its bias contentions are dealt with in some detail in what follows up until paragraph 102. They can broadly be divided into two categories namely: (i) remarks and interventions made by Hartzenberg J during the course of the trial; and (ii) incorrect legal rulings and factual findings he made during the course of the trial or in the judgment. The argument in respect of (i) is simply that the remarks and interventions made by the judge give rise to a reasonable apprehension of bias. The argument in respect of (ii) is that the legal rulings and factual findings made against the state by the judge are not only wrong, but are so unreasonable and one-sided as to give rise to a reasonable apprehension of bias, especially if viewed cumulatively.
The approach we take is to set out briefly the relevant legal principles in respect of each category of complaint and then to evaluate the individual complaints cumulatively in the light of those legal principles. We first deal with the remarks or interventions and thereafter with the rulings and findings during and at the end of the trial.
It is important that the allegations of bias be considered in the context of this trial. The trial ran for a period of about 31 months from 4 October 1999 to 11 April 2002. The court sat for 295 days and heard evidence from over 140 witnesses. Evidence was also taken on commission from two witnesses in Jacksonville, Florida between 10 October and 23 October 2000. The record of the trial runs to over 20 000 pages. The judgment on the merits exceeds 1000 pages. In addition, the trial court heard argument and delivered separate judgments on six attendant issues. It was accordingly a marathon trial attended by the usual frustrations and difficulties of such litigation.

(i) Remarks and interventions made by the judge

The state complains effectively of nine interventions by the trial judge as cumulatively suggesting that the judge was either subconsciously biased or that the conduct gave rise to a reasonable apprehension of bias. These interventions, which will be described below, can broadly be divided into two categories: those that, the state argues, suggest that the judge was hostile towards the state; and secondly those that the state argues show that the judge had prejudged certain issues.
As far as the first category is concerned, this Court should bear in mind that in long criminal trials a judge may at times make remarks that are inappropriate, or display irritation towards counsel. At times such interventions may arise from attempts at humour. In considering the question of whether such remarks give rise to a reasonable apprehension of bias, a court should not hold a judge to an ideal standard which would be difficult to achieve. Moreover, a court considering a claim of bias must take into account the presumption of impartiality, mentioned by this Court in SARFU.^⁵¹ To establish bias, therefore, a complainant would have to show that the remarks were of such a number or quality as to go beyond any suggestion of mere irritation by the judge caused by a long trial, and establish a pattern of conduct sufficient to dislodge the presumption of impartiality and replace it with a reasonable apprehension of bias.
As far as the second category is concerned, that the judge had prejudged an issue in the case, the remarks of the courts in Silber^⁵² and Take and Save Trading^⁵³ are of assistance. Both make it clear that it is rare that a court will uphold a complaint of bias arising from a judge’s conduct during a trial and affirm that it is not inappropriate for a court to express views about certain aspects of the evidence. They make it clear, as well, that the fact that a judge may express incorrect views is not sufficient to ground a claim of bias.
Having set out the relevant legal principles, we turn now to consider briefly each of the nine incidents relied upon by the state.

(aa) The state was conducting “trial by ambush”

When the state suggested that it would prove the bail record after the respondent’s version of events was before the court, the judge remarked that “this was exactly what the state did at the bail hearing, it is trial by ambush”. In its judgment on the admissibility of the bail record, the court then found that counsel for the state during the bail hearing had cross-examined the respondent with the exclusive purpose of laying the basis for cross-examination during the trial. This remark echoed that conclusion by suggesting that the manner in which counsel sought to present the state’s case would amount to “trial by ambush”.

(bb) The judge was “bored” by the state’s evidence
During the leading of a state witness on financial statements, the judge remarked that he was bored to death.^⁵⁴ The state argues that the statement that he was bored created the impression that the judge had already made a decision in regard to vital aspects of the state’s case or that he was hostile to the state’s case. The respondent argues that the remark must again be understood in context. The remark arose when counsel for the state suggested that the witness should read a documentary report into evidence which another witness had already read into the record. Counsel for the respondent suggested that he was willing to accept as common cause certain contents of the documents if it would help speed things up. It was then that the judge made the remark about being bored. After that remark, the judge suggested a way to speed up the process of examining the witness. The respondent submits that it is clear from the context that the court was attempting to bypass the need to go into extensive detail on a subject which the defence did not dispute.
In reply, the state denies that the evidence overlapped with that of a previous witness. It claims that the evidence provided the substratum for the state’s entire case on the commercial charges and was necessary. In the judgment on recusal, the judge explains that the documents that were being read by the witness were not before him at that time. When he asked the state’s counsel which documents he referred to, counsel apparently wanted to read the evidence afresh, an idea that “filled [the judge] with horror”.^⁵⁵ The judge put to counsel that the defence was unlikely to dispute the evidence and it was therefore not necessary for the witness to go further than give his opinion based on the documents and in that context, the judge explained that he was bored to listen to the fine detail of the matter.

(cc) Counsel for the state was “confused”
The third remark also occurred during the leading of evidence by the state when counsel for the state remarked that he (counsel for the state) had become confused. The judge then remarked “if it were the only time [that you have been confused], I would be happy.”^⁵⁶ The court acknowledged in the recusal judgment that the remark was inappropriate and apologised for it.^⁵⁷ The respondent points to the fact that the judge apologised for the remark and argues that, in any case, it had no bearing on the merits.

(dd) The prejudice to the state’s case, other than the effect on counsel’s ego
The fourth remark occurred during oral argument on the recusal application. The court asked counsel about a particular complaint that the state had made. He asked what prejudice had been caused to the state, and added: “other than the fact that I have damaged your ego.”^⁵⁸ The state argues that this sarcastic attitude demonstrated hostility towards the state.

(ee) In chambers the judge laughed with the respondent’s counsel about the unsuccessful attempts of the Asset Forfeiture Unit
The fifth remark occurred after a failed attempt by the Asset Forfeiture Unit to acquire a restraint order in respect of the respondent’s property in August 1999. Subsequently, the matter was being discussed in chambers with the judge in the criminal matter.^⁵⁹ The state suggests that while they were there, the judge and counsel for the respondent laughed together about the failed application. The state argues that this incident in chambers created the perception that the judge sided with the defence team and was eager to embarrass the state.
In his recusal judgment, the judge admitted that he had laughed, and acknowledged that this might create the impression that he was ill-mannered or insensitive, but not that it would indicate bias.^⁶⁰

(ff) The judge’s comments concerning the import of General Knobel’s evidence
The next intervention occurred during the cross-examination of General Knobel, an important witness for the state. The state submits that during the cross-examination, counsel for the respondent put forward an incorrect summary of the state’s case. When counsel for the state objected, the judge responded by saying that it was not incorrect and he “promised” that the witness had indeed given evidence to that effect.
A few days later the state obtained a transcript of the proceedings which demonstrated that the defence’s summary had been incorrect. When the state tried to raise this with the judge, counsel for the respondent said that the dispute could have been resolved outside of court in a collegial spirit. The court took the matter no further.
In this Court, the state submitted that the remark “I promise you” indicated that the judge had prejudged the matter and created a perception of bias against the state. The respondent argues that it was legitimate for the judge to have been concerned with the wasting of time and that his suggestion that the matter be resolved in a collegial way was aimed at saving time and does not ground a reasonable apprehension of bias. In response to the state’s submissions that the judge had evidently prejudged an important issue erroneously, the respondent, at the hearing, contended that it was not unreasonable for the judge to have formed an opinion at that point of the trial.

(gg) The comment that a witness had sympathy for the accused
During the cross-examination of one of the state witnesses, the witness made certain concessions which contradicted his evidence-in-chief and which took the state by surprise. The state sought to explore the witness’s attitude towards the respondent by asking whether he had sympathy for him. The witness responded that he did. Counsel for the respondent objected to the line of questioning and then the judge enquired why the state was asking these questions. When counsel for the state explained, the judge retorted to the effect that it did not matter if the witness had sympathy for the respondent.
In the recusal judgment the judge explains that he made this remark while attempting to establish whether the state now wanted to treat the witness as hostile. In the judgment, the judge stated:

“Wiese’s evidence indicates that he was part and parcel of the trap and could not hear properly what was said. He was one of at least five policeman involved with the trap. How his attitude towards the accused could be of any importance with regard to what happened during the trap is beyond me, and how the state can think that it can affect it is even less understandable. This perception [of bias] astounds me.”^⁶¹ (our translation)

The state argues that the attitude of the court “was unjustifiably intemperate” and the manner in which the court dealt with the line of questioning created a perception of bias. The respondent argues that the state was entitled to proceed, in terms of section 190 of the Criminal Procedure Act, to have the witness declared a hostile witness. The state did not do this.

(hh) Remarks and questions by the judge regarding “Project Coast”
The state makes a series of complaints about the trial judge’s conduct in assessing evidence relating to Project Coast. It is necessary to explain briefly the factual context in which the state’s concerns arise.
The SADF established a covert operation, known as Project Coast, in order to acquire a chemical-weapons capability for South Africa. The respondent was involved in this project. The charges which are relevant to the present discussion are those of fraud and theft. The state’s case was that the respondent (and Dr Mijburgh) had a common purpose to defraud the SADF by appropriating funds meant to be used for Project Coast.
An important dispute related to a group of companies known as the WPW group. The state’s case was that the respondent participated in setting this group up with the purpose of channelling funds into it for his own benefit. The idea was to create the impression that this group was channelling funds to be used for Project Coast, when in fact the respondent was channelling funds into these companies for himself. The respondent’s defence was that these companies were indeed formed to facilitate the clandestine operations of Project Coast. Therefore, if there were no link between the WPW group and Project Coast, the state’s case against the respondent would be very strong. If, however, there were a link, the state’s case would be considerably weaker.
The state complains that on 4 February, still early in the trial, the judge made a statement to the effect that it would not take much to convince him that the WPW group was linked to Project Coast. The state argues this statement indicates that the judge had prejudged this question which lay at the heart of the criminal trial. Moreover, the state claims the statement was not an indication of a prima facie view of the judge, but a formed and final view and that there was no evidence that justified the court making this remark at such an early stage in the proceedings.
The state argues that the trial judge therefore created the impression that he had prejudged a central issue in the case. In its submissions in reply, the state refers to another comment by the judge which indicated that he relied on newspaper reports in order to form the opinion that the state’s submissions were inherently implausible. In the course of argument regarding the recusal application, the judge put it to counsel for the state that it was inherently implausible that the accused could have managed to defraud Project Coast of R86 million out of a total budget of R152 million. When the proceedings continued, counsel for the state pointed out that the state’s case was that Project Coast had been defrauded of R36 million and that in light of the lower amount, it was understandable why the state had failed to pick up the fraud. The judge said that he had read in the newspaper that it was R80 million. The state submits that the fact that the judge used newspaper reports to develop the view that the state’s case was improbable, created a reasonable apprehension of bias.
The respondent argues that the state is incorrect to say that the judge had formed a final view about the link between the WPW group and Project Coast. When he made the remark, he had already heard evidence from another witness to the effect that it was SADF policy that in order to prevent a chemical attack on South African troops and to create a chemical-weapons capacity, anything that had to be done, ought to be done. This would include getting information from enemy agents, buying items on the black market or stealing information. Evidence was led that there was no firm plan on how money was to be transferred: the general policy being, the product (chemical-weapons capability) was needed, the money was available and there was to be no self-enrichment. The respondent argues further that it is clear from certain exchanges during the recusal application that the judge still had an open mind as to the facts.
In the recusal judgment, the judge suggests that at the time he made the remark complained of, he was merely exploring the possibilities of the evidence. He states that when he was asking whether the witness had considered the possibilities that the funds were actually being channelled through these companies to the benefit of the project “Mr Ackerman nearly had an apoplectic fit”.^⁶² Despite the unfortunate tone of such a comment, it is relevant that he also points out that a judge is entitled or obliged to ask questions to clarify the issues.^⁶³ He also said his questions regarding the WPW group and its concurrence with the project cannot indicate prejudice. He stated that it may have indicated that he did not fully understand at that stage what all the facts would lead to – an indication that he did not want to concede, but nevertheless one which he believed would not have been seen by a reasonable litigant as prejudice.^⁶⁴

(ii) Judge’s conduct during the cross-examination of Dr Basson
The state asserted that its cross-examination of Dr Basson was hampered by the judge’s interjections. It notes that the judge asked whether it was necessary for the state to ask the respondent questions on the answers given during the bail proceedings; the court’s suggestion that the respondent should be entitled to read documents before he was cross-examined on them; and the court’s comment that the state was leading Dr Basson into an ambush.

(jj) Assessment of challenges relating to remarks and interventions by the judge
The first five of these complaints^⁶⁵ and the seventh^⁶⁶ and ninth^⁶⁷ are all comments or conduct of the judge which the state argues tend to show hostility to the state’s counsel or to their case. Several of them may have been inappropriate, as the judge himself acknowledged in the recusal judgment. Regrettable as judicial impatience may be, reliance on several examples of such impatience or irritation is not sufficient to ground a reasonable apprehension of bias. Neither individually nor cumulatively do these incidents suggest that the judge was biased towards the state. Most of them suggest a degree of irritation with the manner in which the state’s case was being conducted and little more.
The other two interventions^⁶⁸ disclose the judge’s views on the evidence he had heard. As Schreiner JA noted in Silber,^⁶⁹ it is inevitable that during a long trial a judge will form provisional impressions favourable to one side or another. It is also inevitable that judges will put questions based on those impressions to witnesses and to counsel. Such questions give litigants an opportunity to rebut incorrect impressions that have been expressed by the judge. To argue that the putting of an incorrect impression by a judge gives rise to a reasonable apprehension of bias ignores the fact that judges should ask appropriate questions during a trial in order to assist in the process of fact-finding that lies at the heart of criminal trials. To the extent therefore that the interventions complained of by the state relate to the incorrect assessment of the evidence by the judge, it cannot be said that they could have given rise to a reasonable apprehension of bias.
We turn now to consider the second category of complaints raised by the state.

(ii) Mistaken legal rulings and findings of fact

In addition to pointing to certain comments and interventions by the judge, the state argued that certain of the rulings made by the trial judge were indicative of bias on his part. The rulings can be divided into those in which the judge made a mistake of law, those where he refused to exercise a discretion in favour of the state, and those in which, according to the state, his assessment of the facts was completely wrong. In considering these complaints, it is important to bear in mind that it is inevitable that, from time to time, a judge may make an error of law in determining the admissibility of evidence in a long trial. To assert that an error of law constitutes evidence of bias, or gives rise to a reasonable apprehension of bias, would be to underestimate the difficulties of presiding as a judge in long trials and to impose a counsel of perfection on judicial officers. Such an approach would be at odds with our constitutional order.
An argument that a judge has made a mistake on the facts, even if correct, is not ordinarily sufficient on its own to give rise to a reasonable apprehension of bias. To establish a reasonable apprehension of bias on such an argument is not easy. We must bear in mind that our law does not permit the state a right of appeal on mistaken factual findings, although it is inevitable that from time to time a trial court will make a mistake on the facts in a criminal case. For a mistake on the facts to give rise to a reasonable apprehension of bias, it would need to be established that the mistake of fact is so unreasonable on the record that it must have arisen from bias or given rise to a reasonable apprehension of bias.
Each of the eight incidents or complaints will now be considered in turn.

(aa) Attorney-client privilege
Counsel for the respondent cross-examined a state witness about a conversation that he had had with his lawyer. The essence of the line of questioning was to seek confirmation from the witness that he had discussed his guilt or innocence with his lawyer. During the course of the cross-examination counsel for the state objected to the line of questioning on the grounds of attorney-client privilege. The court dismissed the objection stating that that privilege attached to the attorney and not the client.
The state quite rightly^⁷⁰ argues that the judge was incorrect and that the privilege attaches to a client and not the attorney. It also argues that the cross-examination in question intruded into the terrain covered by the privilege and that the manner in which the court overruled the objection by the state created a perception of bias against the state. In the judgment on recusal, the judge states that he may have made a mistake on the law, but that the dismissal of the objection was correct, since the witness had waived the privilege. He described the perception of the state in regard to the court’s treatment of the privilege as “trivial” (“beuselagtig”) and baseless.^⁷¹ The state argues that its complaint was not trivial and that the fact that the court summarily dismissed the objection without calling for argument from the parties, gives rise to a perception of bias.

(bb) Refusal to allow or call three further witnesses
The state had wanted to call three further witnesses (Mr Murgham, Mr Regli and Mr Dreier) during the presentation of its case, but for various reasons had not been able to do so. The witnesses later came forward after the state had closed its case. Mr Regli had originally refused to give evidence but changed his mind after the close of the state’s case. In the case of Mr Murgham, the state had been under an incorrect impression that he was a defence witness and only realised that this was not so later, hence the late application to call him.
The state therefore asked the court to exercise its powers under section 186 of the Criminal Procedure Act to call the witnesses. The court refused to do so. Section 186 provides that:

“The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of the case.”^⁷²

The state views the failure of the court to call these witnesses as an indication of bias and further submits that the court’s conclusion that these witnesses’ evidence was not essential and that they would never admit to any involvement with Dr Basson was wholly unfounded.
The respondent rebutted these submissions before this Court and indicated that the judge was entitled to make such a finding on the likely credibility of the above witnesses, based on testimony that had already been given by General Knobel.
According to the state, the judge had no factual basis for the above conclusion and his decisions were so dramatically erroneous that they can only lead to a reasonable apprehension of bias. By refusing to call witnesses, the court could be said to have protected the accused from proper cross-examination and from having the strength of his testimony tested against that of other witnesses.
However, it is for the court to determine whether the evidence of the witnesses is “essential to the just decision” of the case. In considering this, the court was entitled to consider the right of the accused that the trial be concluded within a reasonable time.^⁷³ It was further relevant that the state sought that the evidence from these witnesses be received on commission which might have precluded Dr Basson from being present during their testimony and would have been very costly.

(cc) The implausibility of Dr Basson’s evidence
The need for the state to prove that the existence of the financial principals was merely fabrication by the respondent in the fraud charges was, according to the state, central to the case. The respondent made a number of substantial investments which he claimed to have made on behalf of the principals with no financial benefit for himself at all. He had made no mention of the principals at the bail hearing, nor in the affidavit to which he had deposed in respect of the Merton House investment, nor in the information that he submitted to the Auditor-General regarding Project Coast. However, at the trial he claimed to have acted not on his own behalf in those investments, but on behalf of the financial principals from whom he received instructions. Contrary to this, documentary evidence at the trial pointed to the fact that he himself had made those financial decisions with no reference to any principals, whether Russians, Germans or Libyans, as he claimed at the trial.
The state submits that it had proved beyond reasonable doubt that Dr Basson’s evidence of financial principals was fabricated as these principals did not exist, yet the trial judge accepted Dr Basson’s version that he had indeed made the investments upon the instructions of financial principals. The state points to several examples on the record which, it argues, indicate the implausibility of Dr Basson’s version, and support its argument that Dr Basson’s evidence should not have been accepted. It is not necessary to deal with each of those examples in this judgment. An example will suffice. The state points to the fact that the judge should not have accepted Dr Basson’s allegation that he had been instructed by Libyan financiers to make investments for them in Tubmaster, an American company, in order for the Libyans to gain green card status. The state argues that this proposition is highly improbable and that there is little or no evidence to support it. Thus, the state continues, the judge’s acceptance of this evidence is an indication of bias.
The state based a large part of its case on the fraud charges on the contact that the respondent had had with Libya and the time period when this happened. The respondent alleged that he had had contact with principals in Libya from 1986, but the state’s case was that the respondent had only had contact with Libya after 1993, after the allegedly fraudulent transactions had been concluded. The trial court found that it was at least possible that the respondent had had contact with the Libyans before 1993. In its analysis of the evidence relied on by the court, the state submits that this evidence did not support this ruling at all.
To counter these allegations, Dr Basson’s counsel explained that the circumstances under which Dr Basson was being questioned about the financial principals at the bail hearing were different from those at the trial. The manner of questioning was also different, thus the answers Dr Basson gave at the trial which were allegedly inconsistent were actually not.
To a large extent, this complaint by the state is a complaint that the judge reached the wrong conclusion on the evidence led. The evidence of Dr Basson in which he stated that he had acted for certain principals was accepted by the trial court.

(dd) The judge’s refusal to call Mr Buffham
The state applied for the court to allow it to call Mr Buffham as a witness as, allegedly, his evidence would have seriously contradicted that of the respondent who had testified that Mr Buffham was an employee of the financial principals who had channelled funds to the respondent. The court would have been entitled to call Mr Buffham in terms of the International Co-operation in Criminal Matters Act, 75 of 1996 if it considered that his evidence was “necessary in the interests of justice”.^⁷⁴
However, the court refused to call Mr Buffham, but made conclusions regarding his credibility without having heard him. To quote the learned judge: “Yes, Buffham was a ‘wheeler and dealer’ if you ever saw one”.^⁷⁵ The state argued that this comment and the failure to call Mr Buffham gave rise to a reasonable apprehension of bias. We cannot agree. The judge had a discretion as to whether to take steps to call Mr Buffham. In the exercise of that discretion, he had to consider whether Mr Buffham’s evidence was “necessary in the interests of justice”. It is clear that from other evidence the judge had heard concerning Mr Buffham, he doubted his credibility which informed his decision that Mr Buffham’s evidence was not necessary in the interests of justice.

(ee) Erroneous factual finding: evidence of Mrs Webster
The trial court reached a conclusion that Mrs Jane Webster had known of the respondent’s ties with the SADF, but the state submits that this conclusion was not supported by Mrs Webster’s testimony or that of the respondent. In this regard, the state submits that the court’s failure to keep an open mind until the conclusion of the case created an apprehension of bias.
The respondent contends that the judge’s comment on the above issue was made during final argument, thus the court had already heard the evidence that would lead it to reach the conclusion it did. Furthermore, it was possible that Mrs Webster knew something of Dr Basson’s SADF connections, as Mr Dave Webster had been present at a party where Dr Basson was made a brigadier and the nature of Mr Webster’s relationship with his wife indicated that he would communicate such information to her.

(ff) Judge’s assessment of evidence: Dr Basson and General Knobel
Counsel for the state further argues that the manner in which the trial judge assessed the evidence of the respondent and General Knobel in his judgment was incorrect. They argue that the judge considered the evidence-in-chief of state witnesses as well as their cross-examination and that in many instances, the judge held that the effect of the cross-examination was to neutralise the evidence led in chief. However, in his assessment of the evidence of the respondent, the judge did not refer to the cross-examination at all, despite the fact that he had been cross-examined for 33 days.
With regard to General Knobel, the defence cross-examined him with the aim of eliciting concessions from him, which it did. However, on re-examination the state established that the source of information upon which the concessions had been based was the respondent himself. This nullified the probative value of the concessions because they were not based on first-hand knowledge of General Knobel and only on the subjective view of the respondent. The state argues that the judge completely ignored the re-examination of General Knobel by the state in its assessment of his evidence.
Secondly, General Knobel had been asked whether he thought that the respondent had been depicted in a series of photographs. General Knobel denied this, but mistakenly the judge held that General Knobel had indeed confirmed that the respondent had been depicted in the photographs.
Thirdly, General Knobel had testified during cross-examination that he had not been aware that certain Special Branch members had received Rolex watches. The judge, in his assessment of General Knobel’s evidence, mistakenly found that General Knobel had accepted that certain Special Branch members had received Rolex watches.
Fourthly, the testimony of General Knobel was that he had no knowledge of protective clothing donated to an Angolan political organisation, UNITA, in the 1980s or transactions with Iraqis concerning the sale of protective clothing. The state’s complaint is that when the judge summarised General Knobel’s evidence he again found erroneously that General Knobel had verified that protective clothing and military help had been given to UNITA and that the clothing had been sold to Iranians.
Fifthly, General Knobel testified that he was unaware of the methodology used by the state in the formulation of the charge sheet. The judge found, however, again mistakenly that General Knobel had conceded that the state had a particular approach to gathering evidence to formulate the charge.
The state had also asked to recall General Knobel, but the court refused. The respondent submits that this was due to the fact that proceedings had already advanced far and the state had not given the respondent enough time to respond to the application. It appeared to the respondent that the state was not serious about recalling General Knobel, and this must have also been the court’s impression.

(gg) Erroneous factual finding: conspiracy to murder Mr Dullah Omar
The respondent was charged with conspiracy to murder Mr Dullah Omar by substituting his heart medication with poison. In its submissions, the state highlighted certain evidence which demonstrated that a plan had been hatched to use a substance called Dioxin to poison Mr Omar. The trial judge however found that Dioxin is not a poison and that the plan was not feasible, which the respondent as a cardiologist would have known. In addition, the court made a finding that Mr Van Zyl (who was to deliver the poison in Cape Town) flew to Cape Town on 13 May 1989 instead of 13 September 1989 as testified. The state alleges that this demonstrates that the court misunderstood much of the evidence presented to it.

(hh) Repeated mistakes by judge: legal implications
Before this Court counsel for the state stressed that whereas it is understandable that some rulings and decisions of a court could be incorrect, the trial judge in this matter erred consistently and dramatically, always in the same direction, to the extent that it could only be explained with reference to bias. On behalf of the respondent it was submitted that when looking at the cumulative effect of rulings and findings, one also has to take into account a number of important rulings which the trial judge made in favour of the state.
The following examples were pointed out:

The judge allowed a commission to take evidence from Mr Webster in the USA when the accused was not allowed to travel there. Despite the threat to fair trial requirements and the possibility that Dr Basson could be prejudiced by the fact that he was not in the USA to hear Mr Webster’s evidence and help counsel respond to it, the judge nevertheless allowed the trip to go forward, and the evidence to be admitted.
The respondent also points to the fact that the judge allowed two state counsel to cross-examine the accused, which is unusual.
Similarly, in the recusal judgment, the judge points to rulings he made in favour of the prosecution, for example, his refusal to uphold defence objections that the prosecution’s re-examination of General Knobel amounted to unfair cross-examination.
Before this Court counsel for the respondent mentioned the judge’s dismissal of the defence’s application in terms of section 174 of the Criminal Procedure Act, at the end of the state’s case, as example of a ruling in favour of the state.

The state argued that rulings made in its favour which are clearly correct cannot be weighed in the balance. The question is whether incorrect rulings dramatically favoured one side. This is an assessment that it is almost impossible to make on a trial record which extends over 20 000 pages. In our view, the question is whether the incidents raised by the state appreciated in their context establish that the judge was biased or that his conduct gave rise to a reasonable apprehension of bias.

(ii) Assessment of challenges regarding mistaken legal rulings and factual findings
In respect of this second category of complaints, it is clear that at least one of the trial judge’s interlocutory rulings was based on wrong legal principles and we accept that in many of the examples referred to by the state another court might have reached a different conclusion on the facts. Some aspects of the evidence of the respondent (for example as to the financial principals) appear somewhat improbable to us. However, this Court is not sitting in judgment on the factual findings made by the trial court. It is the issue of bias which has to be adjudicated.
The fact that a trial judge may make an interlocutory ruling mistakenly does not provide weighty material to support a conclusion of bias. Nor does the judge’s refusal to exercise his discretion to call further witnesses. Over 140 witnesses were led in this case and it cannot be said that the judge’s decision not to call the further witnesses at the state’s request indicates any bias at all. As to the conclusions of fact of which the state complains, it may be that a different court would have had a different appreciation of the facts, but that too cannot found a complaint of bias, unless it appears that the judge’s conclusions are so out of kilter with the evidence led that they are explicable only on the grounds of bias. We cannot conclude that that was the case here.

(d) Conclusion on the bias challenge
We have considered cumulatively all the complaints of the state in the light of the legal principles concerning the law of bias set out above. In particular, we are mindful of the difficult task faced by a litigant who seeks to establish bias on the basis of the conduct of a judge during a trial. We are unable to conclude on the papers before us that any specific ruling or finding of the judge, or all the rulings or findings identified by the state viewed cumulatively, either show actual bias, albeit subconscious, or give rise to a reasonable perception of bias on the part of the trial judge. As we have said, it may be that some of the rulings made by the judge were mistaken, and that some of his remarks were ill-considered. The remarks and rulings of which the state complains however must be seen in the context of a marathon trial with all its complexities and human frustrations. In our view, viewed in this context, we cannot agree with the state that the conduct of the trial judge as recorded in the record could or should have given rise to a reasonable apprehension of bias on the part of an observer, nor does it suggest actual bias, albeit subconscious, on the part of the judge.
We have considered all the allegations made by the state upon which it relies to establish its allegation of bias by the trial judge. We have found that the state has not made out a case. In the circumstances, it is not necessary to decide the question relating to whether the state was barred from raising the bias question on the ground that it did not appeal the recusal decision of the trial court immediately. Nor is it necessary to decide the question of whether the state is limited to the record up until 4 February 2000.

II THE ADMISSIBILITY OF THE BAIL RECORD

We have already found that the issues concerning the admissibility of the bail record do raise constitutional matters.^⁷⁶ There are two issues raised by the state in relation to the bail record. The first relates to the fact that the High Court considered the admissibility of the bail record before the trial had in fact commenced and before the state had made any application to admit the record. The second relates to the High Court’s conclusion that the admission of the bail record would render the trial unfair.
In response to the first issue, the timing of the consideration of the admission of the bail record, the SCA held that the fact that this happened prior to the beginning of the trial rather than thereafter could not have had an effect on the outcome of the case.^⁷⁷ We agree with the SCA in this regard, in particular, because no matter how the judgment was formulated by the High Court, it is clear that a decision to exclude evidence is an interlocutory decision which can be revisited at any stage during the trial. As we find below, it was open to the state to reapply for the admission of the bail record, or parts of it, at relevant times during the trial. In our view, therefore, the timing of the hearing of the application to exclude the bail record is not a matter upon which the state can succeed on appeal. We turn now to consider the second question – the decision by the trial judge to exclude the record of the bail proceedings.
In our preliminary judgment in this matter, we held that in deciding whether to admit a bail record a judge exercises a discretion which must be exercised in the light of what is fair in the circumstances.^⁷⁸ The first question we must then consider is the proper approach of an appeal court to the exercise of such a discretion by the High Court. Once that question is determined, this Court will have to consider whether on the approach identified the state’s appeal on this leg has prospects of success. Before turning to the question of the approach on appeal to the exercise of a discretion by the High Court, it might be helpful to set out briefly the law on the admissibility of bail records as it applied in this case.

(a) The law as to the admissibility of bail records in criminal proceedings

Section 60(11B)(c) of the Criminal Procedure Act provides as follows:

“The record of the bail proceedings . . . shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.”

This provision was not in force at the time of the bail proceedings against the accused but had come into force at the time of the trial.^⁷⁹ In S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat,^⁸⁰ this Court held that this provision should not be interpreted to deprive a trial court of its discretion to exclude admissible evidence that would otherwise render the trial unfair. Kriegler J reasoned as follows:

“Provided trial courts remain alert to their duty to exclude evidence that would impair the fairness of the proceedings before them, there can be no risk that evidence unfairly elicited at bail hearings could be used to undermine accused persons’ rights to be tried fairly. It follows that there is no inevitable conflict between s 60(11B)(c) of the CPA and any provision of the Constitution. Subsection (11B)(c) must, of course, be used subject to the accused’s right to a fair trial and the corresponding obligation on the judicial officer presiding at the trial to exclude evidence, the admission of which would render the trial unfair.”^⁸¹

The High Court relied upon this reasoning when it concluded that the admission of the bail record as evidence in the criminal trial would result in an unfair trial. In reaching this conclusion, the judge relied on a range of considerations particularly the fact that the prosecutor had acted unfairly in the bail proceedings by preventing the accused from having access to documents in the state’s possession; and the fact that much of the questioning of the accused in the bail hearing was undertaken only for the purpose of laying a foundation for cross-examination in the subsequent trial.^⁸²

(b) The approach of an appeal court to the exclusion of a bail record
This Court has held that it is the trial court that is best placed to determine what will constitute a fair trial or not.^⁸³ Quite clearly, in this case, the trial judge decided that the admission of the bail record would render the proceedings unfair and accordingly exercised his discretion to exclude the record. The question that arises is what approach an appeal court should take to the exercise of such a discretion.
On ordinary principles, the question of the approach of an appellate court to the exercise of discretion by another court depends upon the nature of the discretion concerned.^⁸⁴ Where the discretion is a “strong” discretion or “true” discretion in the sense that there are a range of options available to the court exercising the discretion,^⁸⁵ an appellate court will only interfere with the exercise of that discretion where it is shown that―

“. . . the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”^⁸⁶

This Court has held that an appellate court would only interfere with the exercise of a discretion by a lower court, with regard to the refusal of a postponement^⁸⁷ and the refusal of an application for condonation,^⁸⁸ if such discretion had not been exercised judicially or if it were to have been influenced by wrong principles or a misdirection on the facts.^⁸⁹

In addition, however, it should be noted that there are other considerations relevant to determining the approach of an appellate court to the exercise of a discretion which is not a discretion in the strict sense. In Media Workers Association, for example, Grosskopf JA noted that:

“In passing I should state, lest I be misunderstood, that even where a decision is not discretionary in the narrow sense considered above, there may be features in the nature of the decision or the composition of the tribunal a quo which might call for restraint by a Court of appeal in the exercise of its powers. Such restraint would then, however, be exercised for policy reasons, and would not, as with discretionary decisions, flow necessarily from the nature of the decision appealed against.”^⁹⁰

Even if a discretion is not a discretion in the strict sense, there may be circumstances in which a court will nevertheless adopt an approach on appeal which will overturn the lower court’s decision only if it has not been judicially made, or based on incorrect principles of law or a misappreciation of the facts. It is necessary to consider now the nature of the discretion at issue in relation to the exclusion of the bail record by the trial court.

Under our constitutional order, a trial court may exclude otherwise admissible evidence on the basis that it may render the trial unfair in order to protect the right to a fair trial.^⁹¹ There can be no doubt that it is the duty of the trial court to ensure that the trial is fair in substance and the trial court is obliged to give content to this notion.^⁹² In considering the approach to the exercise of discretion to exclude otherwise admissible evidence in order to ensure a fair trial upon appeal, it should be borne in mind that trial judges must be given freedom to exercise this discretion fairly on their understanding of the case before them. Courts must be slow to adopt rules which would straight-jacket a trial judge in the exercise of that discretion.
When a trial court assesses the question whether the admission of evidence would render the trial unfair, it has to consider a range of factors: the nature of the evidence in question, and how much of it is of advantage to the parties; the need to be fair not only to the accused but also to the prosecution, in the interests of the broader community; the need to ensure that a trial can run efficiently and reasonably quickly; and the reasons underlying the fact that the admission of the evidence may render the trial unfair. These are complex factors which may well pull in different directions. If the evidence is wrongly admitted and the trial is rendered unfair, the accused will clearly have a right to raise that on appeal and the question for an appeal court will be whether the trial was unfair. The more difficult question arises, as in this case, where the evidence is excluded on the basis that its admission may render the trial unfair. An assessment of whether the evidence would have rendered the trial unfair is inevitably hypothetical and difficult to assess in the relatively rarefied atmosphere of an appellate court. It is indeed a matter which the trial court is best placed to judge.
In these circumstances, it seems clear that this is an appropriate case in which an appellate court should be slow to interfere with the decision of the trial court. The trial court identified the following considerations as relevant to the decision of whether to admit the bail record: whether the accused was properly warned in terms of section 60(11B)(c), which the court noted was not applicable in this case as that provision had not come into force at the time of the bail hearing; whether the prosecutor had acted fairly in cross-examining the accused during the bail hearing;^⁹³ the duty on the prosecutor to ensure that an accused is not unnecessarily deprived of documents in the state’s possession where withholding the documents would prejudice the accused unduly; and whether in the extraordinary factual circumstances of the case (in which the accused had previously been examined at length by the OSEO, the length of time since the events had occurred and the failure to permit the accused an opportunity during the bail hearing to consult documents in the prosecution docket) the state’s conduct was fair towards the accused.
The court concluded that it was unfair of the prosecutor to withhold documents from the accused during the bail hearing and that it would not have been prejudicial to the state for those documents to have been provided to the accused at the bail hearing. It also concluded that the extensive cross-examination by the prosecutor in circumstances where the accused had conceded that the state had a prima facie case against him was solely for the purposes of creating a platform for cross-examination during the trial and that that was unfair to the accused.
In deciding to exclude the record, the court did take into account that the bail record can be a useful tool for the state and that it should not lightly be deprived of such a tool. The court concluded however that the cumulative effect of the state’s conduct during the bail hearing was such that it would be unfair to the accused to admit the bail record and that it should therefore be excluded. The state also argued in the High Court that those portions of the record which were tainted should be excised and the remainder of the record admitted. In response to this, the trial court held that such an exercise would be time-consuming and impractical.
In this Court, the state argued that the decision of the High Court to exclude the bail record in its entirety was wrong. This Court has held that the test on appeal is not whether the trial court was correct in the exercise of its discretion to exclude evidence on the grounds that it may render the trial unfair. The question is whether, as this Court formulated it in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,^⁹⁴ the lower court has not exercised its discretion judicially, or been influenced by wrong principles of law or a misdirection on the facts, or reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and legal principles.
In considering the reasons given by the High Court for its decision to exclude the bail record, we cannot say that that discretion was not judicially exercised. It may be that another court would have come to a different conclusion, or decided that the issue of the bail record should be decided at a later stage in the trial. However, the state has not pointed to a misdirection on the facts, or the mistaken application of legal principles which would render it appropriate for this Court to interfere with the High Court’s decision on the matter.
The state argued in this Court that the record of the bail proceedings would have been admissible despite the provisions of section 5(8) of the OSEO Act.^⁹⁵ However, the state had conceded before the trial court that certain of the evidence would not have been admissible. It now seeks to change its stance and argue that all the evidence was admissible. In our view, it cannot be said that the conclusion of the judge to exclude the bail record was based on wrong principles of law sufficient to enable this Court to intervene on appeal. The court reached its decision after a wide-ranging consideration of factors relevant to fairness including its view of the fairness of the bail proceedings. Its decision was based on its assessment of fairness not on the provisions of the OSEO Act. In our view, and for the reasons given in

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South Africa: Constitutional Court

S v Basson (CCT30/03A) [2005] ZACC 10; 2005 (12) BCLR 1192 (CC) (9 September 2005)