Marthinus Johannes Botha v Regional Magistrate Cox N.O. and National Director of Public Prosecutions

The appellant, a schoolteacher and former deputy headmaster, faced criminal charges for rape during 1985 and indecent assault during 1991 of schoolgirls. During the criminal trial, the appellant's attorney noticed an entry in the state's case docket referring to 'LDS' (allegedly 'landdros' or magistrate) giving instructions to the investigating officer to consult personally with a witness, Mr Van Rensburg. The appellant also became aware of a public discussion between the first respondent (the presiding magistrate) and Dr De Kock, an attorney involved in previous disciplinary proceedings against the appellant and who regarded the appellant as 'a constraining influence' at his school. Based on these two grounds, the appellant applied for the magistrate's recusal during the criminal trial on grounds of alleged bias. The magistrate dismissed the recusal application. The appellant then sought review of this decision in the High Court, which also dismissed the application. The appellant appealed to the Supreme Court of Appeal with leave.

• Whether the magistrate should have recused himself from presiding over the criminal trial on grounds of actual or perceived bias
• Whether the test for judicial recusal was met on the facts presented
• Whether the appellant should be permitted to introduce new evidence on appeal that was deliberately withheld at the trial

The appeal was dismissed with costs.

The binding legal principle is that for a judicial officer to be recused on grounds of bias, the test is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judicial officer would not bring an impartial mind to bear on the adjudication of the case. The onus of proving bias rests on the party alleging it. Speculation, suspicion, or unproven allegations are insufficient to meet this test. Further, a party who deliberately withholds evidence at trial cannot subsequently seek to introduce that evidence on appeal merely because the outcome was unfavorable; such evidence must meet the requirements of reasonable explanation for non-production, prima facie likelihood of truth, and material relevance to be admitted.

The Court noted that the judgment had 'no precedential significance' as indicated at the beginning of the judgment. The Court also made observations about the improbability of the magistrate confiding in an attorney with whom he had no special relationship about giving an instruction while a recusal application was pending, particularly after having denied it in open court. The Court further observed that even if the investigating officer's evidence were rejected, it would not assist the appellant as there remained no positive evidence that the instruction came from the magistrate, only the magistrate's denial.

This case clarifies the application of the test for judicial recusal in South African criminal proceedings, particularly in magistrates' courts. It reinforces that the test is objective and must be based on correct facts, not speculation or misinterpretation. The judgment also demonstrates the strict approach courts take to applications to lead further evidence on appeal, particularly where evidence was deliberately withheld at trial. The case illustrates that mere suspicion or coincidence is insufficient to establish bias; concrete evidence is required. It emphasizes that the onus rests on the party alleging bias to prove grounds for recusal.