Hlophe would never be appointed to hear Dewani trial

Though it is physically possible for Judge John Hlophe to hear the murder trial of Anni Dewani, the Swedish beauty that was killed while on honeymoon in Cape Town, it will not even be in the contemplation of the South African judiciary.

Shrien Dewani, assisted by British publicist Max Clifford and his legal team, are looking at the issue of the right to a fair trial, ahead of the extradition proceedings starting in late January.

Over the weekend The Sunday Telegraph quoted Dewani’s cousin, Akta Raja, as saying: “Your fears deepen when you hear Judge John Hlophe, who sentenced your driver and who may preside over any trial, is a controversial figure. Are you sure you will be treated fairly?”

With the debate — both in the UK and South Africa — surrounding Judge Hlophe’s possible sitting during Dewani I thought I’d just take you through the current attitude towards the same judge doing bail — in this case the plea and sentence agreement — and the trial.

On Sunday I set out why I believe Shrien will get a fair trial, here we are looking at the judge who will preside over the trial.

In the first place where a presiding officer deals with a bail application it is not ideal for him or her to hear the trial. That is because often they may have heard evidence which could stand to the detriment of the accused during the bail hearing. It has of course happened but in the event of the counsel for either party drawing it to the magistrate or judge’s attention they would normally recuse themselves in favour of a colleague.

On appeal one of the bases for claiming that an accused has not had a fair trial is that the presiding officer heard both bail and trial. Usually this is because the judge — who hears many matters — or counsel may not even be aware of it.

Mpati’s decision in Majikazana v The State
An example would be the case of Majikazana v The State (559/09) [2010] ZASCA 29 (26 March 2010).

Justice Mpati P did the decision with Judges van Heerden, Mhlantla, Shongwe JJA et Theron AJA, concurring in The Supreme Court Of Appeal.

It includes the following :

“The Constitutional Court has held that the meaning of the concept of a failure of justice in s 322(1) of the Act [Criminal Procedure Act] must now be understood to raise the question whether the alleged irregularity stated in the special entry has led to an unfair trial.”

“[11] What is of importance in this matter is that no application was made for the trial judge’s recusal. Counsel for the appellant submitted that during the trial neither the appellant, nor his counsel, it seemed, was aware of the fact that the trial judge had also heard the bail appeal, as the appellant was not represented by the same firm of attorneys in the regional court and in the High Court. Section 60(11B)(c) of the Act prescribes that the record of the bail proceedings, excluding information relating to the accused’s previous convictions or charges pending against him or her or whether he or she has been released on bail in respect of those charges, shall form part of the record of the trial of the accused following upon such bail proceedings. It is therefore highly probable, in my view, that the appellant’s legal representative at the trial would have had sight of the record of the bail proceedings before the regional magistrate and on appeal at some stage during the trial or even before its commencement. It must therefore be inferred that the appellant’s legal representative was aware that Froneman J had heard the appellant’s bail appeal, but that he took a conscious decision against asking for the judge’s recusal in accordance with his instructions and the appellant’s defence.

“[12] In President of the Republic of South Africa & others v South African Rugby Football Union & others the Constitutional 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 she or he might be biased, acts in a manner inconsistent with s34 of the Constitution and in breach of the requirements of s165(2) and the prescribed oath of office.

“Because of the failure, on the part of the appellant and his legal representative, to apply for the recusal of the trial judge, the inference must be that there was no reasonable apprehension of bias before and during the trial. But, on the assumption that none of them had realised that Froneman J had dealt with the bail appeal, this court has said that the special entry procedure ‘is a useful, or perhaps even necessary, one when the irregularity or illegality complained of is discovered only after the conclusion of the trial’.

“[13] It seems to me that where, as in the present matter, no application was made for the trial judge’s recusal before or during the proceedings, and the judge never entertained the question of his or her recusal in his or her mind, actual bias would have to be proved for an appeal, based on a special entry, to succeed. In those circumstances, the convicted accused’s weapon would be the record of the proceedings and the reasoned decision of the presiding officer which allow for close scrutiny for any evidence of bias. As counsel for the appellant has conceded, there is nothing on the record in the present matter to indicate that the trial judge was in any way biased. In view of the fact that counsel made no submissions relating to the merits of the appeal on the murder conviction, and wisely so, it follows that the appeal in respect of that conviction must fail.”

Judge Hlophe on plea and sentence agreement
As may be seen from the above the system has in place safeguards where the possibility exists that a presiding officer may be “disqualified from sitting because, seen objectively, there exists a reasonable apprehension that she or he might be biased”.

This in reference to the judge who also entertained a bail application in the same matter.

In Dewani the situation is far more compelling.

The plea and sentencing agreement in terms of section 105A of the Criminal Procedure Act 51 of 1977 (agreement), which was concluded by Western Cape Director Of Public Prosecutions Rodney de Kock and lawyers acting on behalf of Zola Tongo, was accepted by Judge Hlophe and led to a finding of guilty on the charges and a sentence of 18 years.

As part of that bundle there would have been a “Summary of Substantial Facts in Terms of Section 144(3)(a)” and — as part of the agreement — a “Plea of Guilty and Admissions”.

While a bail application may set out the version of an accused — not advisable — the plea and sentence agreement will set out in great detail exactly what the accused (Tongo) says happened at the relevant time.

As such and having had to carefully consider those facts in coming to a decision on the conviction and sentence of Tongo it is inconceivable that Judge Hlophe could sit as the presiding officer in the Dewani murder trial.

Whether Shrien Dewani is extradited or not.

Counsel for the other accused would never allow it.

A judge starts a trial with an empty box which during the hearing he fills with evidence gathered from both sides. Only that evidence in the box is weighed up in deciding whether a conviction is possible.

As such a judge who has heard the state’s primary witness detailing his evidence blow by blow beforehand would never be appointed to hear that trial.