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Application for bail
30 April 2022 15:00 by Merilyn Kader
In Rohde v S  1 All SA 504 (WCC) an apprehension or fear of an adverse order is not the basis for recusal, nor were other grounds relied on by the applicant, individually or cumulatively.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Criminal law and procedure - Application for bail pending appeal: After the SCA dismissed his appeal against conviction and sentence for the murder of his wife, the applicant in Rohde v S  1 All SA 504 (WCC) sought bail pending his application to the CC for special leave to appeal. Pending finalisation of his appeal, the applicant had been granted bail, but on dismissal of the appeal, he had 48 hours to hand himself over to a police station to undergo his imprisonment. In addition to the bail application, the applicant sought the recusal of the presiding judge from the hearing of the bail application and for the bail application to be postponed sine dies.
It was held by Salie-Hlophe J that the application for recusal was premised on ten grounds. The first was that the matter had been allocated to the judge in a manner, which formed the subject of a Judicial Service Commission (JSC), relating to the allocation process of the matter at inception. The court found the complaint to have been based on misleading and incorrect facts, and pointed out that after a thorough investigation, the JSC had dismissed the complaint.
Irregularities alleged to have been committed by the presiding judge during the trial had been considered by the SCA and dismissed. Significantly, irregularities form the subject of an appeal and not the basis of a recusal application. The applicant claimed to have an apprehension that the judge might make an adverse finding in a further bail application. However, an apprehension or fear of an adverse order is not the basis for recusal.
Other grounds advanced in support of recusal were equally without merit.
It was stated that the impartiality of the judiciary is assumed, which assumption is only disturbed by weighty evidence, rather than imputations and aspersions. The applicant bore the onus of shifting that assumption and rebutting it by showing a reasonable apprehension of bias. The grounds relied on by the applicant, individually or cumulatively, did not meet the threshold for recusal.
At the time of hearing of the recusal application, the order that the applicant report to undergo a 15-year period of imprisonment had been suspended. The court explained the effect of suspension of the order. The order (by agreement) was effectively an interim order without a return day. The legal effect of an interim order without a return date was considered, and the court exercised its power to order that the suspension and applicant’s bail be extended on the same terms and conditions as previously granted pending the hearing of his bail application but in line with a specified time frame. Consequently, the suspension of the notice to report was made subject to a return date specified in the present court’s order.
Merilyn Rowena Kader
Legal Editor at LexisNexis