RECUSAL (PRACTICE NOTE 6 OF 2016)

1. Judicial disqualification, also referred to as recusal, refers to the act of abstaining

from participation in an official action such as a legal proceeding due to a conflict

of interest of the presiding court official or administrative officer1.

2. This application can be brought when there is an inherent and perceived

likelihood that the judge or trier of facts, cannot act impartially2.

3. Such an application can be brought mero motu or upon application by the

applicant where there is reasonable apprehension of bias.

4. At the very outset it should be acknowledged that a litigant and her or his counsel

who find it necessary to apply for the recusal of a judicial officer or commissioner

has an unenviable task and the propriety of their motives should not lightly be

questioned.

5. Where the grounds are reasonable it is applicant’s duty to advance the grounds

without fear. On the part of the judge or commissioner whose recusal is sought

there should be a full appreciation of the admonition that she or he should “not be

unduly sensitive and ought not to regard an application for his [or her] recusal as

a personal affront”3.

1R v Gough [1993] A.C. 646) See also Webb v The Queen (1994) 181 C.L.R. 41.

2 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999)

3 See note 2 supra.

6. The recusal right is derived from one of a number of rules of natural justice

designed to ensure that a person accused before a court of law should have a

fair trial.

7. The right to a fair trial has now been entrenched in our Constitution. Section

35(3) of the Constitution Act 108 of 1996 which deals with criminal proceedings

provides that “every accused person has a right to a fair trial”.

8. If there is a perception that one might not receive a fair trial, an application for

recusal is made to cure the potential of an unfair trial4.

9. If there is a reasonable apprehension of bias, such officer ought to recuse and

not further participate5.

10.Section 34 of the Constitution6 which applies to other proceedings provides:

“Everyone has the right to have any dispute that can be resolved by the application of

law decided in a fair public hearing before a court or, where appropriate, another

independent and impartial tribunal or forum”.

4 S v Chogugudza 1996 SACR 477 (ZS) at 487H

5 See R v De Kock 1914 EDL 348 at 354; R v Riekert 1954 (4) SA 254 (SWA); S v Takaendesa 1972 (4) SA 72 (RAD) at 74F-G

6 Act 108 of 1996

11.A judge or commissioner who sits in a case in which she or he is disqualified

from sitting because, seen objectively, there exists a reasonable apprehension

that such judge or commissioner might be biased, acts in a manner that is

inconsistent with section 34 of the Constitution.

12. In applying the test for recusal, courts have recognized a presumption that

judicial officers are impartial in adjudicating disputes. This is based on the

recognition that legal training and experience prepare judges for the often difficult

task of fairly determining where the truth may lie in a welter of contradictory

evidence. This consideration was put as follows by Cory J in R v S (R.D.) (1997)

118 CCC (3d) 353:

“Courts have rightly recognized that there is a presumption that judges will carry out their

oath of office. . . . This is one of the reasons why the threshold for a successful

allegation of perceived judicial bias is high. However, despite this high threshold, the

presumption can be displaced with 'cogent evidence' that demonstrates that something

the judge has done gives rise to a reasonable apprehension of bias.”

13.A cornerstone of any fair and just legal system is the impartial adjudication of

disputes which come before the courts and other tribunals.

14.This applies, of course, to both criminal and civil cases as well as to quasi-judicial

and administrative proceedings.

15.Nothing is more likely to impair confidence in such proceedings, whether on the

part of litigants or the general public, than actual bias or the appearance of bias

in the official or officials who have the power to adjudicate on disputes.

16.South African law has always recognised the duty placed on any judicial officer

and/or other person in a position of being an adjudicator/administrative officer, to

exercise their functions in an objective and unbiased manner7.

17. If the judicial officer cannot act impartially, then he/she may have to recuse

herself8.

18.Section 6(2)(a)(iii) of the Promotion of Administrative Justice Act 3 of

2000(PAJA) , any administrative action taken by an administrative officer may be

set aside on the basis of bias or reasonable suspicion of bias on part of the said

officer.

19.To succeed in any application for bias and ultimately recusal, there is no need to

prove actual bias.

20.All one has to advance a reasonable suspicion or apprehension of bias9.

7 In terms of judicial reviews, the common law principle of nemo iudex in sua causa (one cannot be a judge in their own case) applies.

8 S v Radebe 1973 (1) SA 796 (A); S v Malindi & Others 1990 (1) SA 962 (A) at 969G-H.

9 BTR Industries South Africa (Pty) and Others v Metal and Allied Workers Union & Another 1992(3) SA 673 (A) at 690A-B.

21. A mere perception of bias will not suffice.

22.The test was formulated as follows in President of the Republic of South Africa v

SARFU 1999 (4) SA 147 (CC) at 177B-C;

“The question is whether a reasonable, objective and informed person would on the

correct facts reasonably apprehend that the Judge has not or will not bring an impartial

mind to bear on the adjudication of the case that is open to persuasion by the evidence

and the submissions of counsel”

23. The test thus formulated, requires an objective and reasonable apprehension

that the judge would not adjudicate the matter in an impartial manner or without

prejudice to the applicant10.

24.Person needs to be a reasonable person and apprehension must also be

reasonable11.

10 See SACCAWU & Others v Irvin & Johnson 2000(3) SA 705 (CC); S v Shackell 2001 (4) SA 1 (SCA) at 10A-B and; Moolla v DPP & Others (2012) JOL 28655 (GSJ).

11 See SACCAWU (supra). This has now been referred to as the double reasonableness test.

25.Hence recusal applications are not readily accepted unless they adhere to the

test that12:

25.1. a judge is likely to be influenced by partiality or prejudice in reaching a

decision; 

25.2. there is a reasonable apprehension that he/she may be biased;

25.3. such apprehension is based on reasonable grounds;

26.  It is self-evident that if an error complained of is immaterial or unrelated to the

outcome of the case, then it can hardly be said to induce a reasonable

apprehension of bias13.

27. This practice note and cases discussed shows the diverse in their approach to

the subject of bias but, as the analysis has shown, they indicate some pattern of

settled principles which complainants must contend with in order to convince a

court of the genuineness of their allegations.

28.The first of those principles is the presumption of impartiality, which often works

in favour of the court.

12 In Committee for Justice and Liberty v National Energy Board 1978 68 DLR (3d) 716 735 de Granpré J laid down what has become the trademark of public adjudication in modern Canada when he stated that: "the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … That test is 'what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.' Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

13 De Lacy and Another v South African Post Office (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905 (CC) (24 May 2011)

29.Failure to rebut this presumption makes the complainant's task a lot harder. The

second is meeting the test of the fair-minded observer.

30.This principle applies in tandem with the third, which is the double-

reasonableness test.

31. Undoubtedly, these two principles combine to remove the consideration of the

issue of bias or the apprehension of bias from the subjective threshold into the

more stringent objective standard category.

Dated at Pretoria this 11th day of May 2016

MT KufaLLB, LLM (UNISA)(Advocate of the High Court of South Africa)