Good dayI have a friend who cannot affor...

Asked by Simone on 03-05-2021 10:54:00
Question posted in the Criminal Law category relating to Western Cape

Good day

I have a friend who cannot afford legal counsel. He is representing himself in cases brought against a neighbours (alleged harrassment and alleged assault) and another group seeking a protection order. A;; of this takes place in Lambert's Bay

In either case, the applicants have not laid criminal charges but are seeking remedy by way of court interdicts/petitions. 

As I do not have all the details, I can only provide a summary as provided by my friend. Admittedly, this is a right mess.

The initital magistrate was changed for reasons unknown to me to be able to advise you here. The initial magistrate was hearing the cases together as the applicants in the protection order case names an applicant in the assault/harassment case (or vice versa). As with the previous magistrate, the new magistrate in both cases is the same. The new magistrate happens to be the Judicial Head of the Clanwilliam court - so no complaints can be laid against him either. My friend tried this route and found to this out by way of response from the magistrate.

In the case of the group (restaurant owners) seeking a protection order, their patron confronted/assaulted my friend - the police was provided the patron's license registration but claim they cannot find the patron. Again, this is integral to the applicants claims for protection. A temporary interdict has been granted against my friend. The applicants do not attend court - one had a broken leg and they kept using this as an excuse not to attend, however the magistrate did agree that as there is more than one applicant, the other's are able to, however, the matter keeps being postponed for a month at a time. As he has ruled that he will hear the cases separately, this one will go on until such time as the other is resolved.

My friend works in tourism. The temporary interdict prohibits him from entering a specific part of town - the harbour (which is paid access) which the applicant has his place of business (the applicant merely rents the premises, does not own it) The magistrate ruled in a previous appearance that he could access the area due to the fact that it is public property, the applicant does not own it and it hampers his business. In the most recent appearance, the magistrate changed this to prohibit him from access the area again. Whilst my friend wants nothing to do with the applicants or go near them (within reason of course), he wants to be able to move freely and show his guests around the town etc.

In the case of the alleged assault/harassment, my friends neighbour has alleged that he assaulted her and has one of her husbands employees who allegedly witnessed the event. No details as to when this alleged assault took place have been provided as yet. Further to that, a neighbour informed my friend that the applicant has been approaching neighbours to sign a petition claiming that he harasses them. According to the neighbour, the applicant has amassed 600+ signatures to date. My friend naturally has concerns that he will not be afforded an opportunity to question the petitioners as he fears the magistrate may not permit this.

My friend and the neighbours both run accommodation businesses. The neighbour reported him to the Municipality, who shut him down for a month only to delcare his business, premises etc all in order and that he could re-open his business. The Municipality told my friend that the neighbour and his lawyer went in person to the Municipality to demand that he be shut down. 

My friend wants to submit a recusal application as the magistrate as he believes the magistrate is being biased based on the following reasons:

1. The magistrate has on more than one occasion told my friend to get a lawyer to lift the temporary interdict,

2. Has told him he will have to live with the fact that he may not get incidents reports from the police (despite a court order and which incidents reports is integral to his defence argument and without them prejudices his right to a fair trial)

3. Refusal to accept some of his evidence.

4. The last appearance in March, the applicants in the protection order did not attend court. and the magistrate merely indicated that he was taking a "suggestion" from what appears to be a discussion that took place in private between the applicants lawyer and himself. Nothing was entered on record and no explanation was provided to my friend. 

5. He refers to a civil matter with family my friend has in the above court appearances - which has no bearing on either of these cases. The fact that he has knowledge about it and even discusses it openly in court raises questions about his impartiality 

My question is, are the above points sufficient/relevant in requesting the magistrates recusal?

If so, any advice on how to prepare the recusal application would also be greatly appreciated.

Thank you for your consideration.

Answer to the Question

Posted by Att. Patrick on 03-05-2021 23:46:50

Hi there and thank you for your question, 

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow-up questions in order to clarify your question. If you have a new question, you must please open a new thread. 

Wow, that is quite a mess. 

Q: Are the above points sufficient/relevant in requesting the magistrates recusal?

--> Re: 1) In my opinion, no. This is good advice that the magistrate is handing out and given the complex history of the cases, my suggestion is that your friend gets a lawyer as well!

--> Re: 2) In my opinion, no. This is really just the magistrate speaking matter of factly. If I understand the situation, the magistrate has already ordered the SAPS to provide the incident report?

--> Re: 3) In my opinion, no. The magistrate is entitled to accept/refuse evidence based on a number of grounds, and can consider the evidence based on a number of relevant factors. Once the magistrate has made a ruling, your friend is entitled to request the magistrate to provide written reasons for the ruling, and your friend can then apply to the high court for an appeal against the ruling. This is perhaps what your friend should be doing.

--> Re: 4) If this only happened once, then perhaps. If this happens a second time, definitely. What your friend should be doing, in the interdict application where he is the respondent, is to demand that the magistrate set a date & time to hear the return date of the interdict due to the fact that your friend has the right to anticipate (enrol the interdict for hearing) the interdict. If somebody gets an interim interdict, the respondent can bring the matter back to court to argue that the interdict must be discharged. The applicant can't then bugger around and not come to court and ask for postponement after postponement in an attempt to extend the interdict indefinitely. 

--> Re: 5) Perhaps, but if it has no bearing on either of the cases, then perhaps not. Remember, the test for recusal is the reasonable apprehension of bias. What is required is an apprehension, based on reasonable grounds, that the magistrate will not be impartial. I don't think that what you've set out here necessarily creates this apprehension.

I think that your friend is wasting his time dealing with a recusal application. What he should be doing is focusing his efforts on forcing the magistrate to hear the applications! 

In the case of the alleged assault/harassment, surely this is a criminal matter? If that's the case, then your friend is only entitled to the evidence once the SAPS have finished their investigations. Then, he is entitled to a copy of the entire docket.  If it is a civil case for harassment, then he will be entitled to cross-examine the witnesses in court. 

"My friend naturally has concerns that he will not be afforded an opportunity to question the petitioners as he fears the magistrate may not permit this." --> For the person's evidence to be accepted, they need to testify. Your friend will be given an opportunity to cross-examine. Otherwise it won't be a fair trial.

In relation to the 600+ signatures, this means nothing. What has to happen is for the neighbour to call EACH of those persons to the stand to testify and lead evidence. Without evidence, which can be cross-examined, signatures mean nothing. Don't get fooled here!

"The neighbour reported him to the Municipality, who shut him down for a month only to declare his business, premises etc all in order and that he could re-open his business." --> This is very weird. On what basis could the municipality close his accommodation business? The municipality would need to have legitimate grounds. Your friend should find out on what basis the municipality decided to close his business. If it was based on false information given by the neighbour, perhaps a damages claim against the neighbour for loses suffered as a result of the temporary closure? That should give the neighbour something to worry about. 

"In the most recent appearance, the magistrate changed this to prohibit him from access the area again." --> If the interdict is an interim interdict, your friend must anticipate the return date. If the interdict is a final interdict, your friend can take the decision on appeal to the high court. 

I honestly think that your friend is being given the run around because he does not know the law or the rules of court. As such, he is being "pushed around" and accepts postponements, etc which a lawyer would never accept. Perhaps it is time for your friend to actually get legal representation?!?

I can't refer you to a specific lawyer, but I can direct you to Find a South African Law Firm operating in the Clanwilliam Magisterial District OR Find a South African Law Firm in Clanwilliam, Western Cape where you can find a list of qualified lawyers in your area who will be able to assist you further!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question. 

Att. Patrick 

Please remember this is a dialog if you have follow-up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted to be answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Information provided by client

Good morning Patrick

Thank you so much for your feedback and advice.

My friend cannot afford a lawyer, but also doesn't qualify for Legal Aid sadly.
He cannot use any lawyers in Clanwilliam as the applicants have some kind of business with most/all of the lawyers in Lamberts Bay and Clanwiliiam and he does not trust them to be discreet, so we have discussed him potentially using lawyers from Vredendal.

The civil family matter has no bearing on these cases. Family members defrauded/stole from my friend and he is trying to resolve it. It is an ongoing case since 2016/7 if I remember correctly.

With regards to the alleged assault/harassment, the applicants have not opened a criminal case at the police station, so they are not investigating. They are merely pursuing this civilly.
Despite the court order for the police to supply the incident reports, they are still not forthcoming. My friend has indicated he wants the police officers subpoenaed to testify if they are not supplied.

Are you able to advise an estimated cost of what a lawyer would charge to represent my friend in a pair of convoluted cases like these? I understand that it won't necessarily be 100% accurate, but will help understand how much money is required to deal with this.

Thank you Patrick, I truly value and appreciate your advice. Regards Simone

Answer to the Question

Posted by Att. Patrick on 05-05-2021 07:16:33

Hi there again Simone,

If your friend wants the police officers to testify, then he must subpoena them to testify if they do not agree.

Because this is such a convoluted case, it is SO hard to give an estimate as to costs. I mean, lawyers normally work on an hourly basis, so how many hours would you guess to deal with this all? With the postponements, court appearances, etc, etc? It is impossible to say.

Answer Accepted

This answer was accepted on 10-05-2021 12:43:35

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