Dube v The State

The appellants were convicted in the Regional Court, Rustenburg of robbery with aggravating circumstances arising from an armed bank robbery at First National Bank, Koster, in March 2002, and sentenced to 16 years’ imprisonment each. Their appeal against conviction and sentence to the Bophuthatswana High Court was dismissed by a full bench consisting of Mogoeng JP and Gura J. Unbeknown to the appellants at the time of the appeal hearing, the Judge President’s wife acted as counsel for the State in that appeal. After learning of this relationship following the dismissal of their appeal, the appellants applied for a special entry in terms of s 317 of the Criminal Procedure Act 51 of 1977, alleging an irregularity based on a reasonable apprehension of bias arising from the Judge President’s failure to recuse himself. The special entry was granted, and the matter came before the Supreme Court of Appeal.

The appeal succeeded to the extent that the special entry was upheld. The order of the Bophuthatswana High Court was set aside and replaced with an order remitting the appeal to the High Court for rehearing before a differently constituted full bench.

The case is significant for clarifying South African law on judicial recusal and the appearance of bias, particularly where a close personal relationship exists between a judge and a legal representative. It reinforces the objective SARFU test, affirms that perception of bias alone can invalidate proceedings, and underscores the duty of judicial officers to recuse themselves or disclose relationships proactively to preserve public confidence in the administration of justice.