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[2022] ZANCHC 21
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Makukumare N.O. v Brits and Another (1825/2019) [2022] ZANCHC 21 (25 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1825/2019
Heard:
22/11/2021
Delivered:
25/02/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
KGOMOTSO
PAM MAKUKUMARE N.O.
(Estate
late Tatlhoeng Magraret Makukukumare:
no.
1377/2017)
Applicant
and
MAGISTRATE
JP BRITS
1
st
Respondent
GAREPALELELWE
PETER MOREMI
2
nd
Respondent
Coram:
Mamosebo J and Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The applicant lodged an application in terms of Rule 53(1)(a) for
reviewing
and setting aside the first respondent's decision not to
recuse himself in a civil matter under case number 34/2017, held at
the
Pampierstad Magistrates Court. The applicant also sought a cost
order against the first respondent, alternatively that the costs
of
the application be paid by the first and second respondents, further
alternatively by the second respondent, on a scale as between
attorney and client.
[2]
The application against the second respondent was later withdrawn and
the applicant tendered the costs of the second respondent.
[3]
The basis for the relief sought is that the applicant reasonably
suspected
and apprehended that the first respondent
'would
or
might
be
biased
against
her
and
will
not
bring
an
impartial
mind
to
bear
on
the adjudication
of
the
civil
matter
... '. The applicant
listed, in the Notice of Motion, several grounds which appear to be
the grounds for the perception of bias.
These grounds entail that the
first respondent:
3.1
Constantly communicated with the second respondent in
connection with the pending civil matter in the absence of the
applicant;
3.2
Refused to make appropriate orders against the second
respondent where such applications were not opposed by the second
respondent
and such orders were imperative;
3.3
Accepted an
ex parte
application and granted two
conflicting and parallel orders to stay the execution of the warrant
and changed dates of the hearing
without notice to or the knowledge
of the applicant and to wrongfully substitute and amend the second
respondent's initial application;
3.4
Contrary to Rule 3 of the Magistrates Court Rules, issued the
second respondent's application to stay the execution and thereby
usurping the statutory duties and functions of the clerk of the court
to benefit and favour the second respondent; and
3.5
Kept the court file to himself, which raised suspicion and the
apprehension that the first respondent had a specific purpose in
mind.
[4]
The first respondent abides the decision of this Court but
opposed
the cost order sought against him. He filed an affidavit in
which he set out the background to the civil claim and the chronology
of the events. The first respondent disputed the allegations of bias,
mala fides
and/or that he had acted in contravention of his
duties as a magistrate.
[5]
From the affidavit of the first respondent, it appears,
inter
alia,
that the first respondent had already recused himself in
August 2019, shortly after the review application was lodged, when
new
facts came to light. I pause to mention that these facts have
nothing to do with the merits of the recusal application or the civil
matter itself. The first respondent also averred that he had informed
the legal representatives of both parties in the civil matter
under
case number 34/2017.
[6]
The applicant denied. both the allegations about the recusal and
about
informing the parties thereof in the replying affidavit. Mr
Bojosinyane, on behalf of the applicant, conceded during argument
before
us that this was correct. This renders the relief sought moot
in that any order pertaining to the recusal will have no practical
effect. Despite knowledge of the recusal, the applicant proceeded
with the application and Mr Bojosinyane argued the merits of
the
application before us.
[7]
The merits of the application are relevant to the issue of costs, at
least
up and until the date of recusal of the first respondent.
[8]
On 3 July
2019 and before the first respondent, Mr Bojosinyane, the attorney
for the applicant, made oral submissions and requested
that the first
respondent
recuse
himself from the civil matter under case no
34/2017.
This was
done without lodging a substantive application,
supported
by
evidence
under
oath
and without
notice
to
the
second
respondent.
[1]
He
set
out
the
background to the application and complained about the conduct of the
second respondent's attorneys.
From the
document,
relied
upon
by
the
applicant,
it
appears
that
the
real
issues
in
dispute
were
between
the
attorneys of the applicant and the
second
respondent
in the
civil matter.
[9]
Recusal is
a matter regulated by the constitutional fair trial requirement, the
common law and case law.
Article 13
of the Judicial Code of Conduct, adopted in terms of section 12 of
the Judicial Service Commission Act
[2]
addresses
the issue of recusal and provides that a judge must recuse
him- or
herself from a case if
there is a
-
(a)
real or reasonably perceived conflict of interest or
(b)
reasonable suspicion of bias based upon objective facts,
and shall not recuse him- or herself on insubstantial grounds.
[10]
Note 13(v) provides:
'Whether a judge ought
to recuse him- or herself is a matter to be decided by the judge
concerned and a judge ought not to defer
to the opinion of the
parties or their legal representatives.'
[11]
Although
the Code of Conduct applies to judges, the principles
regulating
recusal
also
applies
to
magistrates
as reflected in our case law on the question.
[3]
[12]
The test
for a reasonable apprehension of bias is objective and the
onus
of
establishing
it
rests upon
the applicant.
There
is
a
presumption
of
impartiality
and
it
is
derived
from s 34 of the Constitution.
[4]
Judicial
officers, through their training and experience, carry out their oath
of office and it must be assumed that they can disabuse
their minds
of any irrelevant personal beliefs and predispositions.
The effect
of the presumption of impartiality is that a judicial officer will
not lightly be presumed to be biased.
[13]
Evidence
is
required that demonstrates something
the
judicial
officer has done which gives rise to a reasonable apprehension of
bias.
The
fate of a recusal application depends
on
the
totality
of
the
relevant
facts
in
a
given case.
This means
that the person who is 'reasonably' aggrieved by the presence of a
particular judge would also have
to
have
been
'properly
informed
as
to
the
relevant
facts
and
take
an
objective
view
of
those
facts'.
[5]
[14]
The
applicant
for
recusal
bore
the
onus
of
rebutting
the
presumption
of
judicial
impartiality.
The
presumption
is
not
easily
dislodged
and
required
cogent
or
convincing evidence to be rebutted.
The mere
apprehension of bias - even
strongly
and
honestly
felt
anxiety
-
is
not
good
enough.
[6]
[15]
The request/application for recusal was not based on evidence of the
applicant (plaintiff
in the civil action) but merely on allegations
of collusion between the first respondent and the second respondent's
attorneys.
The application consisted of an address from the Bar by Mr
Bojosinyane and was not supported by affidavit or viva voce evidence
by the applicant. I did not come across any case where an application
for recusal was not supported by evidence of the litigant.
The
perception or opinion of the legal representative of a party does not
constitute grounds for recusal. In this instance, there
was no
evidence of real or reasonably perceived conflict of interest or
reasonable suspicion of bias on the side of the applicant
herein/plaintiff in the action, based upon objective facts. I am of
the view that the applicant in the recusal application did
not rebut
the presumption of impartiality. In my view, the first respondent
(magistrate) was correct in not recusing himself on
application by Mr
Bojosinyane.
[16]
If I am wrong in finding that the recusal application had to be
brought as a substantive
application, supported by evidence under
oath, the application also stands to be dismissed on other grounds.
[17]
The
first
respondent
raised
the
issue
of
non-joinder
of the
Minister of Justice and Correctional Services based thereupon
that
the
decision
complained
of
was
taken
in his
capacity
as
a
magistrate
within
the
scope
of
his
employment by the Department of Justice.
This point
appears to be valid.
In terms of
section 9(1)(a) of the Magistrates' Court Act
[7]
and s 10 of the
Magistrates
Act
[8]
the
Minister
is the
overall
employer
of
all
magistrates
in the
lower
courts
and
appoints
magistrates
in
consultation
with
the
Magistrates
Commission.
In
Bambeni
v Msimeki
[9]
the
court found that a decision, granting relief of this nature, will
impact materially, directly and adversely on the administration
of
justice, in particular the running of the courts.
This being
so, the Minister of Justice and Constitutional Development has a
legal interest in the
finding
of the
court
and
accordingly,
the
failure
by the
applicant to join the Minister amounted to a material non-joinder
which renders the application defective.
[18]
No notice of the review application was given to the defendant's
attorneys, despite serious allegations about their perceived
dishonest conduct levelled against them. These allegations could be
prejudicial to their reputation and practice. As such, they
have a
substantial and material interest in the matter. Had it not been for
the fact that this application is moot, I would have
directed that
the attorneys be joined in these proceedings.
[19]
The recusal application was based thereupon that it appeared to Mr
Bojosinyane that the first
respondent has an interest in the case,
which might lead him not to adjudicate impartially, fairly and
objectively. This contention
and reasons averred are without merit. I
would also dismiss the application on the basis that the applicant
has not established
any real or reasonably perceived conflict of
interest or reasonable suspicion of bias based upon objective facts.
[20]
It is necessary to deal, in short, with the long and protracted
history of the civil matter between the applicant
and second
respondent when considering both the conduct of the first respondent
and whether the applicant has established a reasonable
perception of
bias or malice.
[21]
The first respondent had granted default judgment against the second
respondent in October 2017, in favour
of the applicant herein. The
second respondent thereafter, on 4 April 2018, lodged an application
for rescission in April 2018.
[22]
On 11 April 2018, the applicant served a notice in terms of Rule 60A
of the Magistrates Court Rules in that,
according to the applicant,
the rescission application constituted an irregular step. The second
respondent did not react to the
notice and did not remove the cause
of the complaint within the 10 days allowed.
[23]
On 8 June 2018,
outside
the 15 days allowed after the expiry
of the initial 10-day period, the applicant delivered an application
to have the irregular
proceedings (the rescission application of the
second respondent) struck out. This application bears the date stamp
of the clerk
of the court and appears to have been filed on 19 June
2018. The application was set down for hearing on 4 July 2018.
[24]
The applicant alleges that her attorneys ascertained that an acting
magistrate had refused to grant the second
respondent's rescission
application on 2 May 2018. This allegation is not supported by the
record of the court proceedings. The
records show that on 2 May 2018
the acting magistrate merely postponed the rescission application to
6 June 2018. On that day,
the first respondent rescinded the judgment
against the second respondent. According to the first respondent, the
applicant and
her attorney were absent and he was satisfied that the
applicant had made out a good case for rescission.
[25]
The applicant takes issue with the first respondent's decision to
rescind the default judgment without considering
whether an irregular
step had been taken against the applicant. It was also alleged that
the delay in finalization of the second
respondent's application for
rescission of the default judgment was due to the actions of the
first respondent. This is not borne
out by the history set out above.
[26]
The
applicant then applied for rescission of the earlier judgment
granted
in
the
rescission
application
of
the first
respondent.
This
application was set down for 3 October
2018.
The
applicant
takes
issue
with
the
fact that
the first respondent was informed by the applicant's attorneys that,
according to the second respondent's attorneys,
it
had
been
agreed
that
the
application
would be
postponed to 7 November 2018.
The second
respondent's attorneys informed Mr Bojosinyane on 25 September 2018
that the applicant's notice of motion is irregular
and
that
the
second
respondent
requests
that the
parties agree to a postponement to 7 November
2018.
[10]
The
applicant did not attach Mr Bojosinyane's response
to
these
papers.
The
applicant
failed
to disclose
that
Ms
Bojosinyane,
apparently
another
attorney of
the firm BG Bojosinyane & Associates, represented
the
applicant
on
3
October
2018
and
that she
did
not
take
issue
with
the
contents
of
the
letter
of the
second respondent's attorneys confirming the agreement
to
postpone
the
matter
to
7
November
2018.
[27]
It is common cause that the first respondent granted rescission of
the first rescission judgment in favour
of the applicant herein on 7
November 2018. The costs were reserved. Furthermore, the second
respondent was granted leave to amend
his application for rescission
of the default judgment of October 2017.
[28]
The second respondent did not amend his papers. The applicant then
set the Rule 60A-application down for
6 February 2019. The second
respondent was granted leave to amend his application for rescission
of the default judgment and it
was ordered that costs of that day
were to be costs in the cause. The applicant takes issue with this
order, as the second respondent's
attorneys did not oppose the cost
order sought by the applicant. The first respondent, in his affidavit
before this court, stated
that he had applied his mind and exercised
his discretion to order costs to be costs in the cause. A court has
wide discretion
in awarding costs. In the absence of facts showing
the discretion was not exercised judicially, it cannot be found that
the costs
order of the first respondent could reasonably be perceived
as a conflict of interest or could lead to a reasonable suspicion of
bias.
[29]
The second
respondent delivered a notice of the amendment
in
terms
of
Rule
SSA
dated
19
February
2019
which
forms
part
of the
applicant's
papers.
[11]
[30]
According
to the applicant's attorney, he instructed the sheriff
to
proceed
with
the
sale
in
execution
'as
there
was
no
application
that
could
be
adjudicated
upon
by
the
court'.
The
notice of the sale in execution is dated 4 February 2019.
[12]
In the
recusal application, Mr
Bojosinyane
averred
that the
second
respondent
had failed
to
serve
notice
of
the
proposed
amendment
timeously.
This
is
not
correct
as
the
first
respondent
had done so on 19
February
2019,
within the
period allowed for such notice, after leave to do so was granted
on 6
February
2019.
[31]
The instruction to the sheriff to execute and attach the second
respondent's assets triggered a further chain
of events that
eventually led to this review application.
[32]
On 13 March 2019, the second respondent lodged an urgent application
to stay the warrant of execution pending
the outcome of an
application for rescission of the default judgment. This application
was set down for 19 March 2019 but did not
proceed on the day as the
applicant delivered notice to oppose on 14 March 2019. She served her
answering papers on 25 March 2019.
[33]
On 27 March
2019, the second respondent delivered a notice of removal
of the
previous
application
and lodged
an
urgent
ex
parte
application
for
the
stay
of
the warrant
of
execution.
A
rule
nisi,
returnable
on
8
May 2019,
was
issued.
8
May
2019
was
the
date
on
which the
applicant's application for rescission of the rescission application
was
to
be
heard.
The
rule
nisi,
the
notice
of
withdrawal of the earlier application and application
papers,
were served on the applicant's attorneys on 28 March
2019.
[13]
[34]
In the founding affidavit herein the applicant avers that no founding
affidavit was attached to the notice
of motion in the
ex
parte
application. It was also alleged that the
ex
parte
application was not stamped by the clerk of
the court.
34.1
The
allegation
in
respect
of
the
founding
affidavit
is contradicted in paragraph 7.2 of the document titled
'Plaintiff's
Oral Submission
In
His
Application Or Request For Magistrate's Recusal In the Abovementioned
Matter'.
[14]
34.2
According
to the applicant, the notice of the application
of
the
first
respondent
bore
the
stamp
of
'Administration'.
The
first respondent explained that
the
clerk
of
the
court
stamp
had
expired
at the end
of 2018 and was replaced with a stamp
'ADMINISTRATION'.
This
stamp was in possession and under
the
control
of the
clerk of the
court.
It was
used
by
him
on
all
official
documents.
The first
respondent
pointed
out
that
even
the
applicant's notice in terms of Rule 60A(l) bore this stamp.
[15]
[35]
Mr Bojosinyane took issue with both the hearing of the
ex parte
application of the second respondent and the issuing of the rule
nisi.
According to him, it was unacceptable that an
application which is ripe for hearing in 2 days, was replaced by an
ex
parte
application and thereafter postponed
for 2 months. He also did not believe that the
'NOTICE: EX PARTE
APPLICATION'
was prepared by the second respondent's
attorneys, that it was applied for and that it was granted in
chambers.
[36]
I agree with Mr Bojosinyane that the conduct of the second
respondent, withdrawing the application for the
stay of execution,
appears to be wrong and that the first respondent should not have
entertained an
ex parte
application for the same relief. This,
however, does not mean that the first respondent's decision to not
recuse himself was wrong.
[37]
The first respondent would not have known whether the second
respondent's attorneys had prepared the notice
of the
ex
parte
application. To even suggest that the first
respondent had done this in the absence of clear evidence to that
effect, constitutes
an unwarranted attack on the integrity of the
first respondent and the courts.
[38]
On 1 April 2019, the applicant anticipated the return day of the rule
nisi
and set the matter down for 3 April 2019. Mr
Bojosinyane averred that the court file was not with the clerk of the
court on 3 April
2019. It was also alleged that neither the first
respondent nor the second respondent's attorney was at court on 3
April 2019.
In response hereto the first respondent averred:
38.1
On 3 April 2019, when the first respondent left to attend
court in Hartswater, his office was locked. The clerk of the court,
as
well as the cleaner, had spare keys to his office.
38.2
On the first respondent's return from the court in Hartswater,
the court file and all other court files of civil matters on the
court roll for 3 April 2019 were handed to him by the clerk of the
court.
38.3
The
applicant's attorney was not present at court when
the
civil
matter
was
called.
In
support
thereof,
he
attached
a
copy
of
the
court
proceedings of 3 April 2019 that indicates that the second
respondent's attorney appeared before him
at 10h52,
that the applicant's attorney was absent and
that
the
rule
nisi
was
confirmed,
thereby.
[16]
The rule
nisi
was
confirmed for the staying of the warrant of execution until
finalization of the application
for
rescission
of
the
default
judgment.
[39]
Despite the applicant's serious allegations, as referred to above, it
was admitted in the replying affidavit
that the applicant's attorney
had left the court at Pampierstad at around 09h50.
[40]
Further allegations aimed at creating suspicion against the first
respondent and the attorney of the second respondent
are made in the
replying affidavit. These allegations are mostly based on hearsay.
The applicant averred that the date for the
hearing of the rescission
application (8 May 2019) was changed to 5 June 2019 and that it was
unnecessary for the first respondent
to postpone the application from
March 2019 to June 2019.
40.1
From a copy
of an extract of the court book of 27 March
2019
[17]
it
appears
that
the
date
was
changed.
The date of
8 May 2019 was election day and therefore declared a public holiday.
40.2 On 5 June 2019
another magistrate who was performing relief duties in Pampierstad,
postponed the application to 25 June 2019.
From the answering
affidavit, it appears that the first respondent was on leave at the
time.
40.3 On 25 June 2019 the
second respondent's attorney informed the applicant's attorney that
the matter had to be postponed to 3
July 2019. The first respondent
was involved in a criminal trial at a nearby court. This had
allegedly been arranged telephonically
between the first respondent
and the second respondent's attorney. According to the first
respondent the applicant's attorney phoned
to enquire whether the
matter would proceed on 25 June 2019, as this was a day earmarked for
criminal cases.
40.4 Another magistrate
was available to do postponements in Pampierstad on 25 June 2019. The
second respondent's attorney informed
the first respondent that she
would arrange with the applicant's attorney that the magistrate
postpone the matter to the next motion
court day, to wit 3 July 2019.
Although the applicant's attorney appears to have been dissatisfied
with the arrangement, he did
not appear on 25 June 2019 and did not
oppose the postponement.
[41]
A further ground for the review application relied upon is that as of
3 July 2019, nothing had taken place; neither in
terms of the court
order of 6 February 2019 nor the one of 27 March 2019. This is not
correct because Mr Bojosinyane applied for
the recusal of the first
respondent on 3 July 2019. This application was dismissed on 18 July
2019, whereafter the applicant lodged
the review application on 19
August 2019.
[42]
From the facts set out above, the only criticism that can be levelled
at the first respondent is the fact that he adjudicated
the
ex
parte
application for the stay of the warrant of execution on 27
March 2019. Although the first respondent may be criticised for doing
so, objectively viewed it is not indicative of a conflict of interest
or bias and should not reasonably have given rise to a suspicion
of
bias or a conflict of interest.
COSTS
[43]
The applicant seeks a cost order against the first respondent.
In
essence,
this
relief
is
based
on
an alleged
wrong or incorrect decision.
Judicial
officers are clothed with immunity against claims.
They can
only be held liable if fraud or
mala
fides
is
shown to have influenced their actions.
The policy
underlying this
principle
is the protection of the independence of the judiciary
to
be
able
to
adjudicate
fearlessly.
[18]
Furthermore,
a
court
will
only
grant
a
cost
order
against a
judicial officer in a dispute over the performance of his/her
judicial functions where bad faith has been established
.
[19]
The
applicant
has
not
established
bad faith.
[44]
As stated earlier, the relief sought in this application is
moot. Mr Bojosinyane was aware that the
first respondent had recused
himself as far back as August 2019, shortly after the review
application was lodged. The applicant,
however, persisted with the
application.
[45]
It is trite that the award of costs falls within the discretion
of the court and that, generally, costs
should follow the outcome. I
can find no reasons to differ from the general principles in this
regard. In the premises the application
stands to be dismissed with
costs.
I
make the following order:
THE
APPLICATION IS DISMISSED WITH COSTS
SL
ERASMUS
ACTING
JUDGE
I
concur
M
MAMOSEBO
JUDGE
For
the Applicant;
Mr BG Bojosinyane (BG Bojosinyane & Associates
c/b Motlhamme Attorneys)
For
the
Respondent:
Ms M Olivier oio of The State Attorney, Kimberley)
[1]
Annexure KPM 1
[2]
No 9 of 1994
[3]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
1999(4)
SA 147(CC) para [45];
See
also
Ex parte Goosen and Others
2020 (1)SA 569 (GJ)
[4]
Bernert
v Absa Bank Ltd
2011
(3) SA 92
(CC) paras 31 - 33
[5]
Ex
parte Goosen
supra
paras [13] - [14] and the cases quoted therein
[6]
Ledwaba
v Regional Magistrate, Mudau NO
2015
JDR 0485 p6;
South
African Commercial Catering and Allied Workers Union and Others vs
Irvin and Johnson Ltd (Sea Foods division: Fish processing)
[2000] ZACC 10
;
2000
(3) SA 705
(CC) at 713 to 715
[7]
No 32 of 1944
[8]
No 90 of 1993
[9]
2019 JDR 2658 (GJ) para [23]; See also
Van
Rooyen v The State
2002
(5) SA 246
(CC) para [52]
[10]
p75 Annexure KPM 9
[11]
Annexure KPM 6 to the founding papers
[12]
Annexure A to the
Ex
parte
application,
which is marked Annexure KPM 11
[13]
Annexure KPM 11
[14]
Annexure KPM 1
[15]
Annexure KPM 10
[16]
Annexures D and E to the answering affidavit
[17]
Annexure F to the answering affidavit
[18]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority of
SA
2006(1) SA 461 (SCA) para [19] and [26];
Tsotetsi
v Honourable Magistrate Smith
2017
JDR 0047 (GJ) paras [9] to [22]
[19]
Pangarker
v Botha
2015
(1) SA 503
(SCA) para [39]