CRIMINAL PROCEDURE – APPLICATION BY CO-ACCUSED TO INTERVENE IN RECUSAL PROCEEDINGS (Recusal of judge who presided on an erstwhile urgent application)

CRIMINAL PROCEDURE – APPLICATION BY CO-ACCUSED TO INTERVENE IN RECUSAL PROCEEDINGS (Recusal of judge who presided on an erstwhile urgent application)

Unreported judgment: Reasons for order made on 17 November 2022

The applicants, co-accused of Mr. Gustavo, face charges under the Anti-Corruption Act 8 of 2003, the Prevention of Organised Crime Act 29 of 2004, and fraud. At present, the applicants are currently incarcerated as trial awaiting prisoners. Mr. Gustavo launched a bail application before the Magistrates’ Court. The same was refused, and the High Court upheld the findings of the Magistrates’ Court. Thereafter, Mr. Gustavo applied to the judge for his recusal on the basis that the judge had also presided over an erstwhile urgent application launched by him and the present applicants in the High Court who sought to set aside their arrests as being invalid and based on certain findings made when upholding the decision of the Magistrates’ Court not to grant Mr. Gustavo bail.

The applicants, as co-accused of Mr. Gustavo, sought to intervene in the proceedings in that they have a direct and substantial interest in the matter as they are entitled to a trial by an impartial judge. The State seeks condonation for their non-compliance with the rules of this Court in order to oppose the intervention application. Per FRANK AJA (SHONGWE AJA and MOSITO AJA concurring):

1. While the Rules of the Court do not provide for intervention applications, by the operation of the principle of ubi jus ibi remedium, parties do not lose rights that they may have. In such cases, the court will, in its inherent jurisdiction, deal with the matter to do justice to the parties.
2. It is trite law that for condonation to be granted, parties must first show that there is a reasonable explanation for the non-compliance, and secondly, what the prospects of success are in relation to the issues raised in response to the relief sought.
3. The focus in common law intervention applications is on the interest of the applicant and not on the case he or she wants to make once he or she is allowed to intervene. Hence, the applicant must, at least, satisfy the court that what he or she would bring to the proceedings he or she is about to join will be worthy of consideration by the judge(s) presiding over the proceedings. The opposing affidavit however made submissions only as to why the case law of this court on the subject matter of recusal of judges should be distinguished from the facts so as not to apply in the present matter, without attacking the applicants’ stance that they have a direct and substantial interest in the outcome of the petition.
4. It cannot be countenanced that parties can decide to ignore the laid down procedures whenever it does not suit them.
5. The condonation application is refused as the belated filing was neither reasonable, nor did it have prospects of successfully avoiding the intervention application.
6. The intervention application proceeds unopposed. The applicants established on a prima facie basis that they have an interest that would probably be affected by the outcome of the petition, and that they have a common cause of action with Mr Gustavo as far as the petition is concerned.

As a result, the applicants were accordingly allowed to intervene in the petition as ordered.

Hatuikulipi v Gustavo (P15-2022) [2022] NASC (6 December 2022)