About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2010
>>
[2010] ZASCA 165
|

|

Ndimeni v Meeg Bank Ltd (Bank of Transkei) (2011 (1) SA 560 (SCA); [2011] 3 All SA 44 (SCA)) [2010] ZASCA 165; 692/09 (1 December 2010)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 692/09
In
the matter between:
SONWABISO
MAXWELL NDIMENI
...............................................................................
Appellant
and
MEEG
BANK LIMITED (BANK OF TRANSKEI)
........................................................
Respondent
Neutral
citation
:
Sonwabiso Maxwell Ndimeni v Meeg Bank Limited (Bank
of Transkei)
(629/09)
[2010] ZASCA 165
(01 December 2010)
Coram:
MPATI P, LEWIS, HEHER, SNYDERS and TSHIQI JJA
Heard:
01 November 2010
Delivered:
01 December 2010
Summary:
Recusal – On grounds of appearance of bias – acting
judge, in capacity as attorney and conveyancer in private practice,

having commercial relationship with one of the litigants – duty
to disclose fact of commercial relationship – failure
to make
disclosure resulting in proceedings being a nullity.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
Labour
Appeal Court (Davis, Jappie and Leeuw JJA sitting as court of
appeal).
The following order is
made:
The application to lead
further evidence is granted.
The appeal is upheld
with costs.
The order of the court
below is set aside and for it the following is substituted:
‘
(a)
The appeal is upheld with costs.
(b) The order of the
court below is set aside.
(c) The matter is
remitted to the Labour Court for trial
de novo
before another
judge.’
_______________________________________________________________________
JUDGMENT
____________________________________________________________________
MPATI P (LEWIS, HEHER,
SNYDERS and TSHIQI JJA ..........):
[1] On 15 September 1998
the appellant was dismissed from his position as manager of the
Lusikisiki branch of the respondent following
a disciplinary enquiry.
The chairman of the enquiry had found him to have acted irregularly
and contrary to the standing bank procedures
or practice in the
execution of his duties as branch manager, particularly in respect of
transactions relating to the account of
Mr Y I Docrat, who owned a
supermarket at Flagstaff (charge 1). There were three further charges
in respect of which the appellant
was found guilty and for which he
was given a final written warning. It is not necessary to mention
these charges for present purposes.
[2] The appellant
challenged the findings of the chairman of the disciplinary enquiry
before the Labour Court (Zilwa AJ) on grounds
of lack of procedural
and substantive fairness. The Labour Court confirmed the findings of
the chairman in respect of three of
the charges and imposed a
sanction of summary dismissal for the first charge and a final
written warning for the second and third
charges. The appellant
subsequently gave notice of his intention to apply for leave to
appeal against the order of the Labour Court,
but later discovered
that Zilwa AJ and ‘close members of his family’ each
allegedly had some commercial relationship
with the respondent. He
promptly gave notice that ‘at the hearing of the application
for leave to appeal on 16 November 2001’
he would apply to
amend his grounds of appeal by adding the following ground:
‘
Leave
to appeal to the [LAC] is granted for the purpose of enabling the
[appellant] to apply to the [LAC] for an order permitting
the leading
of oral evidence on why the trial judge should have recused himself.’
In his affidavit in
support of the application to amend his grounds of appeal the
appellant alleged that he believed Zilwa AJ ‘was
biased in
[his] case and had [he] been aware of the above facts at the time of
the trial of this matter [he] would have instructed
[his]
representative to request him [Zilwa AJ] to recuse himself’.
[3]
However, for reasons that have not been disclosed, Zilwa AJ failed to
hear the appellant’s application for leave to appeal,
with the
result that the appellant approached the Labour Appeal Court (LAC)
for leave to appeal to it on the ground of constructive
refusal of
leave by the Labour Court. (I should mention that the application was
set down for hearing on 12 November 2001, but
was postponed to 16
November 2001 at the instance of the appellant. It was again
postponed on that day
sine
die
and never set
down again despite the appellant’s endeavours, according to
him.) The LAC granted the leave sought, but subsequently
dismissed
the appeal with costs. This appeal is before us with the special
leave of this court.
[4]
At the commencement of his argument in this court counsel for the
appellant sought leave, on behalf of the appellant, as was
done in
the LAC, to introduce the evidence upon which reliance was placed for
the assertion that Zilwa AJ should not have presided
at the trial but
should have recused himself. It has been held that where a reasonable
apprehension of bias is found to be present,
the judicial officer is
duty bound to recuse him or herself.
1
This is so because the common-law
right of each individual to a fair trial, which is now
constitutionally entrenched, must be respected.
The issue in this
appeal, therefore, is whether the evidence sought to be introduced by
the appellant satisfies the test of ‘reasonable
apprehension of
bias’ and, if so, whether the proceedings before the Labour
Court were a nullity.
[5]
It is perhaps convenient, for a better understanding of the
circumstances of the case, to set out a brief summary of the facts

relating to the charge in respect of which the appellant was
summarily dismissed. Mr Jacobus Daniel Marais, the collection manager

of the respondent, testified that he discovered an activity by Docrat
called ‘cross firing’ or ‘kite flying’
2
on his account with the respondent,
which resulted in the latter suffering a loss of
approximately R9 million.
In order to recoup some of its losses the respondent allowed Docrat
to operate a trading account at its
Lusikisiki branch, but he was not
allowed an overdraft facility on it. It is not in dispute that
Docrat’s loan account was
managed by Marais at the respondent’s
head office in Umthatha. The trading account was managed by the
appellant. Although
he had no overdraft facility in respect of the
trading account Docrat was allowed an unofficial overdraft of R130
000. Marais testified,
however, that the branch was required to
report to head office as soon as the account went into overdraft.
[6] In March 1998 the
trading account was overdrawn by more than a million rand due to the
deposit of a bad cheque for the sum of
R727 190.16, which was
returned three times but redeposited each time. In the meantime
cheques drawn on the account were met against
the uncleared positive
balance reflected in it. The respondent reacted by sequestrating
Docrat and closing his business. It took
a loss of more than one
million rand in the process.
[7] The appellant, on the
other hand, testified that all transactions on Docrat’s trading
account were effected on the express
instructions of Marais, who was
responsible for the operation of the account, together with the
managing director, Mr George Kaltenbrünn.
He therefore contended
that Marais was responsible for the loss suffered by the respondent.
But Marais’s version was that
he and the credit manager at head
office, a certain Ms Ntuli, only monitored the overdraft part of the
account, but that the administration
of the account remained with the
branch where it was operated. The appellant was thus to blame for the
loss because he had failed
to report to head office accurately and to
follow established policies relating to drawing against uncleared
effects. Mr Batembu
Diko, the accountant at the Lusikisiki branch,
testified that he acted as manager of the branch in the absence of
the appellant.
He said that he would report to the head office on
Docrat’s account only when it was overdrawn and Docrat wished
to draw
on it. The authority to allow Docrat to withdraw money on his
overdrawn account would thus be obtained from head office. The Labour

Court disbelieved the appellant and found him guilty of misconduct as
charged.
[8]
Although it made reference to the evidence relating to the claim of
bias, the LAC did not consider this ground of appeal. Its
reason for
this appears from the following passage in the judgment:
3
‘
Mr
Pillemer, who appeared on behalf of appellant, accepted that, were
this court to find, on the substance of the dispute, that
the
probabilities were clearly in favour of respondent after an analysis
of the record, credibility questions would have no bearing
on the
decision, no purpose would be served by referring the case back to
another judge. For this reason therefore, the critical
issue turns on
the evidence relating to the charge.’
The court thus proceeded
to consider the evidence presented before Zilwa AJ and concluded that
there was ‘simply no justification
for referring this matter
back for hearing before a different judge’; that the dispute
‘does not turn on the credibility
findings of witnesses but on
the plausibility of the evidence and an evaluation of the
probabilities’, and that the competing
versions ‘can be
justified or rejected exclusively on the evidence placed before the
[Labour Court] and which was available
to this court’. The
probabilities, so the court held, clearly supported the decision of
the respondent to dismiss the appellant.
[9] In this court Mr
Pillemer, for the appellant, disputed the correctness of the LAC’s
interpretation of his submission before
it in this regard. And a
reading of the transcript of the exchanges between the court and
counsel reveals that the latter’s
submission was indeed
misinterpreted. The relevant part of the transcript reads as follows:
‘
COURT:
But if we have read this record and we are satisfied that there is
absolutely no basis by which this appeal should succeed
then?
MR
PILLEMER: It must still go back because this case turns critically on
questions of credibility.
COURT:
So in other words with great respect if you have read a record and
you read it from start to finish and there are no merits
on the
appeal what then it is not answering my question? Credibility is only
relevant Mr Pillemer when you read a record and you
are absolutely
sure about it assuming one is totally sure.
MR
PILLEMER: If you are totally sure [that] even accepting everything
the appellant says is true, he has got no case then there
would be no
point in sending it back I accept that. There would not be a failure
of justice.’
What
counsel thus conceded was that if, in spite of an acceptance of the
appellant’s version, the court were still to find
that the
appellant has no case, there would have been no failure of justice
and consequently there would be no need to refer the
matter back to
the Labour Court for a hearing
de
novo
before a
different judge.
[10]
As will become evident later in this judgment, I consider that the
LAC erred in any event in failing to deal with the issue
of the
alleged bias. It is indeed so that the fact that an allegation of
bias might be established does not necessarily mean that
the entire
proceedings will be vitiated.
4
But where the issue is pertinently
raised on appeal the appeal court should, in my view, deal with it,
as failure to do so might
detrimentally affect the public’s
confidence in the courts.
[11]
Before us the appellant did not rely on the record of the proceedings
at the trial for purposes of determination of the appeal.
Nor was
there any suggestion that Zilwa AJ exhibited actual bias ‘in
the sense that he had approached the issues before him
with a mind
which was in fact prejudiced or not open to conviction’.
5
The appellant sought to have the
judgment set aside and the matter referred back to the Labour Court
for the trial to commence
de
novo
before a
different judge, on the grounds of an alleged commercial relationship
between Zilwa AJ and the respondent, which engendered
a fear that the
learned acting judge would not be impartial in the case. It was
submitted on behalf of the appellant that in the
light of the alleged
commercial relationship there had not been a fair trial. The appeal,
so the argument continued, therefore
turns on the question whether or
not Zilwa AJ was disqualified from hearing the matter.
[12]
In our law the ground for the disqualification of a judicial officer
is the existence of a reasonable apprehension that he
or she will not
decide the case impartially or without prejudice, and not that he or
she will decide the case adversely to one
party.
6
And 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 a case, that is a mind
open to persuasion
by the evidence and the submissions of counsel’.
7
In the same paragraph the
Constitutional Court observed that ‘it must never be forgotten
that an impartial Judge is a fundamental
prerequisite for a fair
trial and the judicial officer should not hesitate to recuse herself
or himself if there are reasonable
grounds on the part of a litigant
for apprehending that the judicial officer, for whatever reason, was
not or will not be impartial’.
[13] The facts upon which
the appellant relied for his claim that Zilwa AJ should have recused
himself are contained in an affidavit
deposed to by Kaltenbrünn
in answer to the appellant’s allegations in support of his
application to amend his grounds
of appeal. Those allegations were:
‘
(a)
Ms S V Zilwa, the judge’s wife is a shareholder in and director
of [the respondent];
(b) . . . Ms S V Zilwa is
a chartered accountant and in that capacity is sub-contracted by KPMG
to audit the books of [the respondent];
(c) Bank of Transkei
Insurance Brokers have been closed and all the work formerly done by
this division is now done by Sikhona Financial
Services. Ms S V Zilwa
is the sole director of Sikhona Financial Services;
(d) Advocate P H S Zilwa,
the judge’s brother is a director of [the respondent];
(e) Mr D Z Nkonki, the
judge’s brother-in-law, is an Executive Director of [the
respondent];
(f) In his practice as an
attorney, the judge handles commercial bonds of [the respondent] and
is thus reliant on [the respondent]
for a portion of his income.’
[14] As I have mentioned
above, Zilwa AJ did not hear the appellant’s application for
leave to appeal, which would have afforded
him an opportunity to
respond to these allegations in his judgment. But Kaltenbrünn
responded as follows to the allegation
that Zilwa AJ handles
commercial bonds of the respondent:
‘
The
Honourable Acting Judge Zilwa is a qualified attorney in partnership
with Mandela Makaula. The firm was appointed to the panel
of
attorneys for TNBS Mutual Bank. No work was ever done by the firm for
Meeg Bank prior to 1 May 2001. Accordingly this allegation
does not
demonstrate any facts upon which an apprehension of bias may be
founded.’
According to Kaltenbrünn
the respondent merged with TNBS Mutual Bank during the beginning of
2001 although the effective date
of the transaction which
foreshadowed the actual merger was 1 April 2000. The two banks
commenced functioning as one entity from
1 April 2001.
[15] The appellant
attached to his application to the LAC for leave to appeal copies of
two mortgage bonds prepared by Zilwa AJ,
which clearly contradict
Kalternbrünn’s assertion that no work was ever done by the
former’s firm of attorneys
on behalf of the respondent prior to
1 May 2001. The first bond was executed at the office of the
Registrar of Deeds, Umthatha,
on 20 March 2000 and the second on 8
August 2000. Both bonds were passed in favour of the respondent. It
is a well-known practice
in this country that the mortgagee bank or
financial institution takes responsibility for the registration of a
bond. In the absence
of any evidence to the contrary, it must be
accepted that the instructions for
the preparation and
execution of the bonds by Zilwa AJ (as conveyancer) emanated from the
respondent, as mortgagee.
[16]
In
BTR Industries
8
Hoexter JA said:
‘
It
is a hallowed maxim that if a judicial officer has any interest in
the outcome of the matter before him (save an interest so
trivial in
nature as to be disregarded under the
de
minimis
principle)
he is disqualified, no matter how small the interest may be. . . The
law does not seek, in such a case, to measure the
amount of his
interest. I venture to suggest that the matter stands no differently
with regard to the apprehension of bias by a
lay litigant. Provided
the suspicion of partiality is one which might reasonably be
entertained by a lay litigant a reviewing Court
cannot, so I
consider, be called upon to measure in a nice balance the precise
extent of the apparent risk. If a suspicion is reasonably

apprehended, then that is the end to the matter.’
That
case involved a refusal by the presiding member of a three-member
Industrial Court (IC), to recuse himself in a matter in which
the IC
was hearing an application for an unfair labour practice
determination between BTR Industries (BTR) and the Metal and Allied

Workers Union (union) of which BTR’s employees were members.
The presiding member had attended and addressed a seminar during
an
adjournment in the trial, which had been organised by a certain firm
of consultants and advisers on industrial and labour relations.
He
had been invited to the seminar by the firm of consultants upon which
BTR had relied ‘very heavily’ for advice during
the
negotiations between it and the union on the dispute that was now
before the IC. Three other speakers at the seminar, which
had been
advertised as ‘for management and senior legal practitioners’,
were counsel representing BTR. In confirming
the reviewing court’s
(Didcott J) order setting aside the proceedings in the IC for the
reason that the presiding member
should have recused himself, this
court reasoned that the facts of the matter were strong enough ‘to
meet the less exacting
requirements of the “reasonable
suspicion of bias” test’.
9
[17]
The present is not a case where the judicial officer would have been
automatically disqualified. The allegations against him
are not that
he had an interest or potential interest in the case in the sense of
owning a substantial number of shares in the
respondent, or that he
had any other direct pecuniary interest in the outcome of the
proceedings, in which event he would have
been automatically
disqualified.
10
The rationale for this rule is that
no one can be a judge in his or her own cause. But the rule (of
automatic disqualification)
does not apply only in instances where
the judicial officer concerned has a pecuniary interest in the
outcome of the proceedings.
It also applies where a non-pecuniary
interest to achieve a particular result exists. In
R
v Bow Street
Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2)
11
Senator Pinochet, a former head of
state of Chile, applied for an order setting aside an earlier order
of the House of Lords in
an appeal to it reinstating one of two
warrants issued by a metropolitan stipendiary magistrate but later
quashed by the Queen’s
Bench Divisional Court. The warrants had
authorised the arrest of Senator Pinochet so as to facilitate
proceedings for his extradition
to Spain to be tried there for crimes
against humanity allegedly committed whilst he was head of state in
Chile. The House of Lords
had granted leave to Amnesty International
(AI) to intervene in the appeal proceedings before it. The order of
the House of Lords
reinstating the warrant was by a majority of three
Law Lords, among whom was Lord Hoffmann, to two.
[18] Senator Pinochet’s
application was based on information that came to light after the
House of Lords had made its order.
It transpired that Lord Hoffmann’s
wife had been working at the international secretariat of AI since
1977 – the judgment
of the House of Lords was given on 25
November 1998 – and that Lord Hoffmann was himself a Director
and Chairperson of Amnesty
International Charity Limited (the
Charity), one of two registered companies that undertake work of the
international headquarters
of AI, and had helped, in 1997, in the
organisation of a fundraising appeal for a new building for Amnesty
International UK. He
had also helped to organise the appeal to the
House of Lords together with other senior legal figures. On the facts
before it the
House of Lords reasoned that AI shared with the
government of Spain not a financial interest, but an interest to
establish that
there was no immunity for ex-heads of state in
relation to crimes against humanity; and that the Charity, which has
the same objects
as the AI, one of which is ‘to procure the
abolition of torture, extra-judicial execution and disappearance’,
plainly
had a non-pecuniary interest to establish that Senator
Pinochet was not immune.
[19] After a discussion
on the rule relating to automatic disqualification due to pecuniary
interest the court said:
‘
But
if, as in the present case, the matter at issue does not relate to
money or economic advantage but is concerned with the promotion
of
the cause, the rationale disqualifying a judge applies just as much
if the judge’s decision will lead to the promotion
of a cause
in which the judge is involved together with one of the parties.’
12
The
court thus concluded that Lord Hoffmann, being a member of AI, ‘would
have been automatically disqualified because of
his non-pecuniary
interest in establishing that Senator Pinochet was not entitled to
immunity’. It consequently set aside
its order of 25 November
1998 reinstating the warrant. In the course of its judgment the House
of Lords remarked that the mere
fact of a judicial officer’s
interest in the cause is sufficient to disqualify him ‘unless
he has made sufficient disclosure’.
13
As to the other factors, such as the
connection between AI and Lady Hoffmann and Lord Hoffmann’s
involvement in organizing
the appeal to it, the House of Lords found
that these factors might have been relevant if Senator Pinochet had
been required to
show ‘a real danger or reasonable apprehension
of bias’.
14
[20]
I have indicated above that in the present matter the appellant did
not allege that Zilwa AJ had a pecuniary interest in the
outcome of
the case, but that there is a commercial relationship between him and
the respondent, which engendered in him (appellant)
a reasonable
apprehension that the learned acting judge would not be impartial.
Zilwa AJ is an attorney who would have returned
to his practice at
the end of his acting appointment. Problems that arise when members
of the legal profession, in particular members
of the Bar and
Side-Bar, act on the bench, were discussed in
Locabail
15
where the learned Lord Justices of
the Court of Appeal said the following in respect of attorneys
(solicitors):
‘
But
we think the problems can usually be overcome if, before embarking on
the trial of any assigned civil case, the solicitor .
. . conducts a
careful conflict search within the firm of which he is a partner. . .
While parties for and against whom the firm
has acted, and parties
closely associated, would (we hope) be identified, the possibility
must exist that individuals involved
in such parties, and parties
more remotely associated, may not be identified. When in the course
of a trial properly embarked upon
some such association comes to
light (as could equally happen with a barrister-
judge),
the association should be disclosed and addressed, bearing in mind
the test laid down in
R
v Gough
.’
16
(The
test laid down in
R
v Gough
17
is whether ‘. . . in the
circumstances of the case . . . it appears that there was a real
likelihood, in the sense of a real
possibility, of bias . . .’
on the part of the judicial officer, which is not the test in this
country.)
[21]
It seems obvious, as the Court of Appeal observed in
Locabail
,
that there can be no reasonable apprehension of bias if the judicial
officer does not know of the facts that would be relied upon
as
giving rise to a conflict of interest. In the present matter Zilwa AJ
executed the second bond on 8 August 2000. Only six days
thereafter,
on 14 August 2000, he commenced with the hearing of evidence in the
trial of this matter. In my view, he must have
known at the
commencement of the trial, that six days before, and at least once
before that, he had executed bonds on behalf of
the respondent. The
appellant’s application to the LAC for leave to appeal was
opposed by the respondent. The opposing affidavit
was deposed to by
Mr Hendrik Stefanus Coetzee, a director of the respondent’s
Johannesburg attorneys. He asserted, on the
instructions of his
client, that Zilwa AJ was not employed by the respondent ‘at
the time that he heard this matter’
and denied that the
respondent ‘was in any position to have exerted undue influence
on the Judge’. He further denied
that the two copies of the
bond documents demonstrated that Zilwa AJ ‘was employed’
by the respondent. He continued
by saying that whilst the documents
seemed to suggest that Zilwa AJ was a conveyancing attorney who
registered a bond in favour
of the respondent, there was no
indication that that was on the instructions of the respondent or
that the respondent remunerated
him for those services.
[22] I have already held
that it must be accepted, in the absence of evidence to the contrary,
that the instructions to prepare
and execute the bonds emanated from
the respondent. In my view, it was open to the respondent and Zilwa
AJ to rebut the prima facie
evidence presented by the appellant that
Zilwa AJ executed the bonds on behalf of the respondent. They failed
to do so. It would
have been quite easy for the respondent to state
that the bonds were not executed on its instructions and that it
never remunerated
Zilwa AJ’s firm for them. It is true that in
his affidavit in support of the respondent’s opposition to the
appellant’s
application for leave to amend his grounds of
appeal Kalternbrünn stated that no work was ever done by Zilwa
AJ’s firm
on behalf of the respondent. But after the appellant
had produced copies of the bond documents one would have expected the
respondent,
or Zilwa AJ, to have stated pertinently that the bonds
were not executed on behalf of the respondent, and that the latter
never
remunerated the firm for the services rendered.
[23] It must be
remembered that the case before Zilwa AJ concerned the fairness or
otherwise of the appellant’s dismissal
by the respondent. Two
of the witnesses who testified at the trial on behalf of the
respondent, namely Marais and Kalternbrünn,
were senior members
of the respondent’s management stationed at head office. The
appellant was their subordinate. Their evidence,
particularly
Marais’s, was to be weighed against his because he was placing
the blame for the respondent’s financial
loss on Marais, while
Marais was placing it on him. Moreover, the instructions given to the
firm of which Zilwa AJ was a partner
by the respondent for the
preparation and execution of bonds were not a once-off occurrence –
and I express no view as to
whether a once-off occurrence would have
made any difference. The firm is said to be on the respondent’s
list of attorneys
to whom such instructions are given. (It has not
been disputed that the firm is on the respondent’s list, but
merely that
it ‘was appointed to the panel of attorneys for
TNBS Mutual Bank’, which, we know, merged with the respondent.)
In
my view, the appellant would be entitled to believe, reasonably
so, that Zilwa AJ would have expected to receive more instructions
in
the future from the respondent to prepare and execute bonds on its
behalf. In these circumstances, I agree with the submission
of
counsel for the appellant that Zilwa AJ was obliged to disclose his
relationship with the respondent, so that the appellant
could decide
whether to request him to recuse himself, or to waive his right to do
so. In my view, the facts satisfy the requirements
of the ‘reasonable
apprehension of bias’ test.
[24]
Counsel for the respondent conceded that Zilwa AJ should have made
disclosure of his relationship with the respondent, in the

circumstances of this case, and that the logical conclusion from his
failure to do so was that the proceedings before him would
be a
nullity. He contended, however, that the present being a labour
matter which, in terms of the purpose for which the Labour
and Labour
Appeal Courts were created, should have been dealt with
expeditiously, and in view of the fact that the appellant’s

dismissal was confirmed almost ten years ago (Zilwa AJ delivered his
judgment on 9 March 2001), this court should not set aside
the
proceedings of the trial court. He argued that this is a case where
this court should consider the merits of the appeal as
it can be
disposed of on the probabilities. There is no reason, in my view, why
the appellant or litigants in labour disputes generally,
should be
denied their right to a fair trial, to which everyone else is
entitled. In cases where the judicial officer refuses to
recuse
himself or herself when he or she should in fact have done so, what
occurs thereafter, ie the continuation of the proceedings,
is a
nullity.
18
[25] In view of the
conclusion I have reached it is unnecessary for me to consider the
other factors raised by the appellant as
giving rise to a reasonable
apprehension of bias. In the result the following order is made:
1. The application to
introduce further evidence is granted.
2. The appeal is upheld
with costs.
3. The order of the court
below is set aside and for it the following is substituted:
‘
(a)
The appeal is upheld with costs.
(b) The order of the
court below is set aside.
(c) The matter is
remitted to the Labour Court for trial
de novo
before another
judge.’
____________________
L Mpati
President
APPEARANCES
APPELLANTS: M Pillemer SC
Instructed by Jafta
Incorporated, Durban;
Matsepes Inc.,
Bloemfontein
RESPONDENT: F A Boda
Instructed by Cliffe
Dekker Hofmeyr Inc, Benmore;
Naudés,
Bloemfontein
1
Take
and Save Trading CC & others v Standard Bank of SA Ltd
2004
(4) SA 1
(SCA) para 2.
2
This
involved the depositing of cheques and drawing against uncleared
effects in different accounts, in effect borrowing against

non-existent funds.
3
Per
Davis JA (Jappie and Leeuw JJA concurring), para 7.
4
Rondalia
Versekeringskorporasie van SA Bpk v Lira
1971 (2) SA 586
(A) at
590H
; President of the Republic of South Africa & others v
South African Rugby Football Union & others
1999 (2) SA 14
(CC) para 42.
5
BTR
Industries South Africa (Pty) Ltd & others v Metal and Allied
Workers’ Union & others
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at 690A-B.
6
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 46 in
which reference was made with approval to a passage in
Re JRL :
Ex
parte CJL
[1986] HCA 39
;
(1986) 161 CLR 342
(HCA) at 352.
7
President
of the Republic of South Africa v South African Rugby Football
Union
, above n6, para 48;
SA Commercial Catering and Allied
Workers’ Union v Irvin & Johnson Ltd (Seafood Division
Fish
Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para 11;
Sager v
Smith
2001 (3) SA 1004
(SCA) para 15;
Take and Save Trading
CC v Standard Bank of SA Ltd
, above n1 para 2.
8
Above
n5, at 694J – 695A.
9
At
696I – J.
10
See
Dimes v Properties of Grand Junction Canal
(1852) 3 HL 759
;
Re
Ebner
;
Ebner v Official Trustee
in Bankruptcy
[1999] FCA 10
paras 41 – 43;
Locabail (UK) Ltd v Bayfield
Properties Ltd and another
[2000] 1 All ER 65
(CA);
Clenae
Pty Ltd v Australia & New Zealand Banking Group Ltd
[1999]
VSA 35.
11
[1999] UKHL 1
;
[1999]
1 All ER 577
(HL).
12
Per
Lord Browne-Wilkinson at 588e – f.
13
At
586f.
14
At
588j – 589a.
15
Above,
n10.
16
Ibid
at 76.
17
[1993] UKHL 1
;
[1993]
2 All ER 724
(HL).
18
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A) at 8J – 9G and the cases there cited.