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[2015] ZAGPPHC 1092
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Ndamase v Van Greuning and Others (74070/2012) [2015] ZAGPPHC 1092 (19 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
19/8/15
CASE
NO: 74070/2012
In
the matter between:
NDILEKA
NDAMASE
Applicant
and
DC
VAN
GREUNING
First Respondent
MAGISTRATES
COMMISSION
Second Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third Respondent
SPEAKER
OF
THE NATIONAL
ASSEMBLY
Fourth Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
Fifth Respondent
JUDGMENT
Tuchten
J
:
1
This is a review application, brought by the applicant to set aside
two decisions. The first decision
is that of the second respondent
(the Commission) to institute disciplinary
proceedings against
the applicant. The first
respondent was, pursuant to the Commission's decision to institute
the disciplinary proceedings,
appointed by the Commission to preside
at a disciplinary hearing into the applicant's alleged conduct. The
second decision under
review is that of the first respondent, who
convicted the applicant of eleven charges of misconduct. In what
follows, I shall set
out those facts which are necessary for an
adjudication of the arguments addressed to me in the review
application.
2
The applicant, then a magistrate stationed at the Pretoria
magistrate's court, was charged with misconduct
as contemplated in
reg 25 of Schedule F to the Code of Conduct for Magistrates (the
Code) enacted by the Minister of Justice under
s 16 of the
Magistrates Act, 90 of 1993 (the MA).
3
Reg 26(1) of the Code provides:
If
a magistrate is accused of misconduct, the Commission may appoint a
magistrate or an appropriately qualified person (hereinafter
called
the investigating officer) to conduct a preliminary investigation and
to obtain evidence in order to determine whether there
are any
grounds for a charge of misconduct against the magistrate: Provided
that, if the Commission is of the opinion that
there is
prima
facie
evidence to support the charge, the Commission may charge
the magistrate concerned in writing with misconduct without the said
preliminary
investigation.
4
After a prolonged period of difficulties between the applicant and
the chief magistrate of Pretoria, Mr
Nair, the latter approached the
Commission with the request that the Commission institute
disciplinary proceedings against her.
The Commission was established
by s 2 of the MA. Under s 3 of the MA, the Commission must consist of
a judge of the High Court
as its chairperson, the Minister of
Justice, a number of persons drawn from the different branches of the
legal profession and
other persons. At the relevant time, the
chairperson of the Commission was Mr Justice Ngoepe, then the judge
president of this
Division.
5
On 4 December 2008, Mr Nair addressed the ethics committee of the
Commission. An extract from the minutes
of the meeting of the ethic
committee of that day reads as follows in relevant part:
Mr
Nair,
Chief
Magistrate
Pretoria
to
discuss
matters
regarding
Magistrates
...
and
Ndamase
Mr
Nair thanks the Committee for having been afforded the
opportunity to address the Committee.
Having
briefed the Committee
on
the
content thereof, Mr
Nair
hands in his
statements as well as other documents related
thereto. The
Committee
resolved
that
both
magistrates ...
are
to
be charged with misconduct summarily.
6
By letter dated 15 December 2008 addressed to Mr Nair and copied to
the applicant, the secretary of the
Commission informed Mr Nair and
the applicant that the ethics committee had resolved to charge the
applicant with misconduct. The
letter concluded:
A
charge sheet will be compiled shortly and served on Ms Ndamase after
having been approved by the Commission and signed by the
Chairperson.
7
The secretary of the Commission wrote a further letter to the
applicant dated 27 February 2009. The third
paragraph of that letter
reads:
In
as far as the allegations against you are concerned, kindly be
informed that we are in the process of consulting witnesses and
of
formulating charges of misconduct against you, whereafter a charge
sheet has to be submitted to the full Commission for approval.
8
A charge sheet was duly formulated and embodied in a document dated
16 November 2009 under the heading
of the Commission and signed by Mr
Justice Ngoepe as its chairperson. The charge sheet was served on the
applicant on the same
day, together with a notification that the
Commission had appointed the first respondent to preside at the
misconduct hearing and
that Ms Gail Pretorius had been appointed to
lead evidence at that hearing. The appointments were made under reg
26(4) of the Code.
9
Both the first respondent and Ms Pretorius were at the time senior
magistrates, from Roodepoort and Brits
respectively. They were also
both white people whose home language was Afrikaans. They did not
know the applicant before the hearing
began.
10
The hearing began on 8 February 2010. The applicant conducted her
defence personally. She made an application
for the recusal of the
first respondent as well as Ms Pretorius. The applicant stated that
she was convinced that she
...
will not get a fair hearing at all before you.
11
The grounds for the application were stated by the applicant as
follows:
I
have to make it clear that I have got nothing personal with you, both
of you in this matter but my problem is you are white people
and you
are Afrikaans speaking.
Second,
the Magistrate Commission is well aware that on 4 December those who
took the decision to charge me were white people. This
time I did not
expect the Magistrate Commission to appoint white people to preside
and prosecute in this matter. I honestly believe
that there are
competent black African magistrates who can preside over these
proceedings.
12
The first respondent proceeded forthwith to rule on the applications
for recusal. In relation to the
evidence leader (referred to as the
prosecutor) Ms Pretorius, the first respondent pointed out that he
did not think it would be
competent for him to rule on such an
application. The view of the first respondent was that it was for Ms
Pretorius herself to
evaluate her position as evidence leader in the
light of the applicant's stated position. In regard to his own
situation, the first
respondent ruled as follows:
I
am not going to say that I am sorry because I am white or Afrikaans
speaking and that we are white people does not mean that we
will at
any stage harm you or do not make sure that you will get a fair trial
in this whole hearing and, therefore, your application
is dismissed.
13
The first respondent then immediately added:
If
you want to take this on review at this stage, it s your choice. I
have no problem in this regard.
14
To which the applicant responded:
I
do not want to take this matter to the High Court. It will be costly
and a waste of time especially this thing has been dragging
from 4
December 2008 and we are now in February 2009. I have got a point
in
limine
to raise. Are you ready?
15
The applicant proceeded to outline her point
in limine.
The
point was diffusely argued by the applicant but within the
submissions she put up to the first respondent was a contention that
the ethics committee had resolved on 4 December 2008 to charge her
and there was no formal resolution after that date to cover
charges
of misconduct said to have been committed after that date. She
identified the "new" charges as nos 4 to 23, 26-30
and
40-41. The applicant argued that because there was no further such
resolution, the new charges were unauthorised and thus incompetent.
16
The first respondent ruled on the point
in limine
on 9
February 2010. He dismissed the point
in limine,
observing
that nothing prescribed what evidence had to be placed before the
Commission to justify a charge and that the regulation
only referred
to
prima
facie
evidence. It was for the evidence
leader, the first respondent said, to prove the allegations of
misconduct against the applicant.
He added:
If
you want to challenge the decision of the Magistrates Commission who
charged you with misconduct then this is not the forum for
this. Then
you must, as I have already indicated take the decision on review to
the High Court.
17
The first respondent then ruled on and dismissed certain other
submissions argued by the applicant within
the framework of her point
in limine
and the hearing continued. The procedure adopted by
the first respondent, with the concurrence of both the evidence
leader and the
applicant was essentially that applicable to a trial
in a court of law. At the end of the case for the Commission, the
first respondent
discharged the applicant on counts 1, 8, 9, 12, 13,
18, 20 and 26.
18
The
applicant
testified
and
was
cross-examined
by
the
evidence
leader.
Argument
was
presented,
during
which
the
applicant
reiterated
her
application
that
the
first
respondent recuse himself on
the ground
of perceived racial bias. The first respondent proceeded to deliver a
written
judgment
dated
17
April
2012.
He
once
again
refused
to recuse
himself
and
found the
applicant guilty on 8
counts of
refusal
to
execute lawful orders
[1]
as contemplated
in reg
25(j) and 3 counts of failing to execute her official duties
objectively, competently and
with
dignity, courtesy and self-control as contemplated
in reg
25(c)
read
with paragraphs
2 and/or
3 of the
Code.
He
found the applicant
not guilty
on all the other remaining counts.
19
The first respondent was then required under reg 26(19) of the Code
to convey to the Commission his finding
in relation to the
aggravating or mitigating factors presented at the hearing before him
and impose one of the relatively minor
sanctions prescribed in reg
26(17)(a) or recommend to the Commission under reg 26( 17)(b) that
the applicant be removed from office
as contemplated in s 13 of the
MA.
20
The first respondent listed the aggravating and mitigating
circumstances found by him and elected to
recommend removal from
office.
21
Subsections13(2) and (4) of the MA read, in relevant part:
(1)
...
(2)
A magistrate shall not be suspended or removed from office except in
accordance with the provisions of subsections (1), (3),
(4) and (5).
(3)...
(4)(a)
If the Commission recommends that a magistrate be removed from
office-
(i)
on the ground of misconduct; (ii)
(iii)
on account of incapacity to carry out the duties of his or her office
efficiently,
the
Minister must suspend that magistrate from office or, if the
magistrate is at that stage provisionally suspended in terms of
subsection (1)(a), confirm the suspension.
(b)
A report in which the suspension in terms of paragraph
(a)
of a magistrate and the reason therefor are made known, must be
tabled in Parliament by the Minister within 14 days of such
suspension, if Parliament is then in session, or, if Parliament is
not then in session, within 14 days after the commencement of
its
next ensuing session.
(c)
Parliament must, as soon as is reasonably possible, pass a resolution
as to whether or not the restoration to his
or her office of a
magistrate so suspended is recommended.
(d)
After a resolution has been passed by Parliament as contemplated in
paragraph (c), the Minister shall
restore the magistrate concerned to
his or her office or remove him or her from office, as the case may
be.
22
Following the conclusion of the hearing before and the recommendation
of the first respondent, the parliamentary
portfolio committee on
justice and constitutional development considered the applicant's
case under s 13(4)(c) of the MA. On 18
September 2012, the portfolio
committee recommended that the National Assembly confirm the
applicant's removal from office as a
magistrate. On 20 September
2012, the National Assembly passed a resolution pursuant to s
13(4)(c) of the MA not to restore the
applicant to her office.
23
On 20 December 2012, before the National Council of Provinces
considered the recommendation of the portfolio
committee regarding
the applicant, the applicant launched the present proceedings.
24
On 19 February 2013, the National Council of Provinces passed a
resolution pursuant to s 13(4)(d) of
the MA not to restore the
applicant to her office. By letter dated 27 February 2013, the third
respondent (the Minister) wrote
to the Commission, recording that he
had removed the applicant from office in terms of s 13(4)(d) of the
MA.
25
The Commission and the Minister appeared through the same counsel to
oppose the application for review.
The other respondents filed formal
notices to abide.
26
The grounds of review advanced by the applicant in her founding
affidavit are contained in paragraph
9 of that document. Before I
consider the grounds of review raised before me in argument, I shall
reproduce this paragraph in full,
exactly as framed, omitting only
subparagraph numbers.
I
am therefore, entitled to the relief sought on the grounds that the
second respondent committed an irregularity by charging me
with
misconduct without investigation or affording me a right to be heard
in terms of the common law and section 15 of the Promotion
of
Administrative Justice Act 3 of 2000 (PAJA).
The
first respondent failure to recuse himself constituted a gross
irregularity As he based his reasons on the test of actual bias
and
not reasonable apprehension of bias. I have set out a reasonable
basis why I had a reasonable apprehension of bias and the
reasons I
have set out are not far fetched considering the history of the
Pretoria Magistrates Court. What further concerned me
was that the
first respondent knowing that the matter had racial connotation
proceeded to appoint a white only team to conduct
the hearing. The
prosecution was either not conversant with English or deliberately
proceeded to conduct the proceeding in Afrikaans.
We had to resort to
using an interpreter for my convenience in circumstances where a
prosecutor who was conversant with English
could have been appointed
as I do not speak Afrikaans at all. The only reasonable inference I
can draw from the conduct of the
second respondent was to ensure at
all cost that things are made difficult for me in the conduct of my
defence. The first respondent
on the other hand forced himself onto
the case despite having accepted or being conscious that the matter
had inclinations of racism
and I was uncomfortable with his
appointment and the further conduct of the proceedings.
It
is apparent that the third, fourth and fifth respondent had relied on
the recommendations of the second respondent without having
applied
their minds to the legal implications of the first respondent's
refusal to recuse himself and the failure by the second
respondent to
investigate the allegations against me prior to an investigation or
affording me a right to be heard.
27
Three issues were argued before me. I shall deal with them below.
Before I do that, I need to make clear
that no reliance was placed on
the grounds in paragraph 9 of the founding affidavit except as I
describe below. The other grounds
in paragraph 9 were not argued, for
good reason. They are baseless.
28
Counsel for the applicant advanced two grounds of review in argument.
The first ground of review is that
the first respondent had no power
to consider the "new" charges, ie those presented as counts
nos 4 to 23, 26-30 and
40-41. This was the subject of the applicant's
point
in limine
taken at the hearing before the first
respondent and referred to in paragraph 15 above. The argument made
by counsel, as best I
can reproduce it, is that the Commission was
bound in law only to formulate charges, the gravamen of which arose
before 4 December
2008, the date on which the ethics committee of the
Commission resolved to prosecute the applicant.
29
There are a number of difficulties with this contention. The first is
that the ground of review is not
raised in the applicant's founding
affidavit at all, having regard to paragraph 9 of her founding
affidavit which I have just quoted.
30
It is trite that a founding affidavit must contain both the grounds
on which the applicant seeks relief,
as would be contained in
particulars of claim in an action, and the essential evidence in
support of those grounds. The purpose
of this rule is to apprise the
respondents of the case they may be expected to meet. One reference
to authority will suffice to
make this point. In
Shephard
v
Tuckers Land and Development
Corporation
(Pty)
Ltd
1
1978 1 SA 173
W at
177G-178A the following was held:
It
is founded on the trite principle of our law of civil procedure that
all the essential averments must appear in the founding
affidavits or
the Courts will not allow an applicant to make or supplement his case
in his replying affidavits and will order any
matter appearing
therein which should have been in the founding affidavits to be
struck out. ... This is not however an absolute
rule. It is not the
law of the Medes and Persians. The court has a discretion to allow
new matter to remain in a replying affidavit,
giving the respondent
the opportunity to deal with it in a second set of answering
affidavits.
31
In the present case, the point was said to have been raised in
reply. In paragraph 10 of her replying affidavit,
the applicant says
the following:
It
is the whole process, including the decision to charge and prosecute
that is being sought to set aside. Findings were made in
respect of
charges which were not investigated in terms of the legislation.
These extra charges
were also not authorised
by
the decision
of
4
December
2008.
[my emphasis]
32
There is another passage in the record on which the applicant relies
in this regard.
I need to put this passage in context. The refusal of
the first respondent to recuse himself was a ground of review relied
upon
by the applicant in her founding affidavit and persisted in on
appeal. The applicant proceeded on about 24 March 2015 to deliver
a
supplementary affidavit. This was not the supplementary affidavit
contemplated in rule 53(4). It contains a number of paragraphs
preceded by the heading "THE PURPOSE OF THIS SUPPLEMENTARY
AFFIDAVIT". But the material in these paragraphs does not
identify any such purpose; it contains a rather rambling repetition
of allegations and assertions made by the applicant at the
hearing
before the first respondent and in her founding and replying
affidavits.
33
Be that as it may, in paragraph 4(i) of this supplementary affidavit,
the applicant
says the following:
When
I made an application that the first respondent should recuse himself
from hearing the matter, I also requested among other
things that all
new/additional matters that were not covered by the resolution of the
Magistrates Commission dated the 04th December
2008 should be struck
off the charge sheet (see pp71-148 of Bundle 1 of the record of the
proceedings). I likened these additional
matters to other counts in
the charge sheet that are covered by the resolution saying that all
the complaints against me were never
investigated before a decision
to charge me was taken. I mentioned these additional matters
individually in para 10 of page 93
of Bundle 1. The first respondent
dismissed all the points
in limine
I raised and thereby made
the whole process to be irregular as he and the prosecutor were not
authorised to prosecute me for such
matters.
34
In heads of argument dated July 2015 prepared by counsel who argued
the review for
the applicant, the submission is made, if I understand
the argument correctly, that the "new" charges were not
authorised
by the Commission.
35
I was invited to treat this as a special case justifying the
consideration of the new
ground. But there is no basis, in my view,
for the exercise of a discretion in this regard in favour of the
applicant. I do not
think that the respondents were adequately
forewarned of the applicant's intention to rely on a ground of review
not covered by
the founding affidavit. The written argument to which
Ihave referred was submitted a short time before the two days
allocated by
the Deputy Judge President on special application for
the hearing of the case. Iwas not invited to postpone the hearing of
the
case to afford the respondents an opportunity to deal with the
factual material which underpinned the new ground. The contents of
the letters mentioned in paragraphs 6 and 7 show that the Commission
appreciated that a decision to prefer a charge against a magistrate
had to be made by the full Commission rather than a committee of the
Commission. I have little doubt that if a ground of review
of lack of
authorisation by the Commission had been raised, the Commission would
have dealt with the facts relevant to the point.
In all the
circumstances, it would not be fair to allow the applicant to rely on
this ground of review.
36
It bears repeating that this attack is levelled at the decision of
the Commission to
charge the applicant as it did. In this regard,
Ithink the applicant has misunderstood the facts. The decision made
on 4 December
2008 was a decision of the Commission's ethics
committee, an organ to which the Commission delegated certain
functions. But the
decision to prosecute the applicant on the
specific charges was made on 16 November 2009
by
the
Commission
when Mr Justice Ngoepe signed the charge sheet on
behalf of the Commission. Counsel for the applicant expressly
disavowed any assertion
that Mr Justice Ngoepe had been on a frolic
of his own. It follows, therefore, that the character of the "new"
charges
is at this level no different from the character of the other
charges contained in the charge sheet. The Commission itself (in
contradistinction to the ethics committee of the Commission) decided
to bring each of the charges in the charge sheet against the
applicant. If any charge other than those which the Commission had
decided to bring against the applicant had found its way into
the
charge sheet, Mr Justice Ngoepe would not have signed the charge
sheet.
37
Section 26(1) of the MA empowers the Commission, if it is of the
opinion that there is
prima
facie
evidence to
support the charge, to charge the magistrate concerned with
misconduct. Once it is not in dispute (as it could hardly
be) that Mr
Justice Ngoepe was authorised by the Commission to sign the charge
sheet on its behalf, then there is no room for an
argument that
authority was lacking. The resolution of the ethics committee of 4
December 2008 is simply irrelevant to this enquiry.
38
A further difficulty facing the applicant is whether this review
ground is competent at all, having
regard to the time that elapsed
between the date of the second respondent's decision (16 November
2009) and the date upon which
the review was brought (at the earliest
20 December 2012).
39
The second issue which I must decide arises from the point taken in
the answering affidavit
delivered on behalf of the Minister that the
review of the Commission's decision to charge the applicant was time
barred by the
provisions of s 7(1)(b) of the Promotion of
Administrative Justice Act, 3 of 2000 (PAJA). Section 7(1) reads as
follows:
(1)
Any proceedings for judicial review interms of section 6 (1) must be
instituted without
unreasonable delay and not later than 180 days
after the date-
(a)
subject to subsection (2) (c), on which any proceedings instituted in
terms of internal remedies as
contemplated in subsection (2) (a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action,
became aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and
the reasons.
40
The difficulty facing the applicant is that it is clear, as the
argument made
by the applicant herself to the first respondent on 9
February 2010 as described above shows, that she had by that date
been informed
and became aware of all the information contemplated in
s 7(1)(b) of PAJA. Counsel for the applicant was constrained to
concede
that this was so. That being the case, the maximum period of
180 days had long elapsed when the applicant launched her review
application
on 20 December 2012. There was no agreement under s
9(1)(b) of PAJA to extend the period of 180 days and the court was
not approached
under s 9(2) for an extension of time.
41
Counsel for the applicant submitted that administrative action of
which the applicant
complained had only been completed by the
decision of the Minister to remove her from office under s 13(4)(d)
of the MA.
42
I do not agree. Section 1 of PAJA defines an administrative action to
include, subject
to certain exclusions, a decision by an organ of
state exercising a public power or performing a public function in
terms of any
legislation which adversely affects the rights of any
person and which has a direct, external legal effect. It is only an
administrative
action which is justiciable under PAJA. By deciding to
charge the applicant in the manner that it did, the power conferred
on the
Commission under the proviso to reg 26(1) of the Code was
fully exercised when the charge was signed on behalf of the
Commission.
The administrative function assigned by the legislature
to the Commission in such circumstances was thus completed.
Thereafter
other administrative actions were contemplated by the
legislation and indeed performed as part of the administrative
process that
led to the applicant's being charged found guilty and
ultimately dismissed from office. But that does not alter the fact.
It was
not disputed that the decision to formulate the charge
sheet in the manner described adversely affected the rights of
the applicant and had a direct, external legal effect.
43
It follows that the review of the decision of the Commission was not
brought within
the time prescribed by PAJA and is in the
circumstances not justiciable by the court. For this reason too, the
second issue in
the review must be decided against the applicant.
44
The final issue to be decided arises from the submission on behalf of
the applicant
that because the first respondent is a white, Afrikaans
speaking person, the applicant had a reasonable perception that he
would
be biased against her in the hearing and ought, on the
application of the applicant, to have recused himself from the
hearing.
45
I have the strongest doubts whether the applicant had any such
perception at all. She
asserted that all the complainants against her
were white persons. That was manifestly not true. She suggested that
people who
decided to charge her were all white people. That is also
manifestly untrue. She said that for historic reasons she did not
trust
white people. But she retained the services of a white,
Afrikaans speaking advocate to argue her case in this court and made
no
objection to the composition of the court hearing the review.
Isuspect that she advanced this preposterous contention to embarrass
the first respondent and the evidence leader. Perhaps she believed,
misguidedly, that this argument would have resonance when Parliament
came to consider the matter. I need make no conclusive finding at
this level of the case.
46
For the cases make it perfectly clear that the fact that a magistrate
is a white person
does not disqualify him from presiding in a case
involving an accused belonging to a different race. In
S v Collier
1995 2 SACR 648
C it was held:
[Th]e
apparent prejudice argument must not be taken too far; it must relate
directly to the issue at hand in such a manner that
it could prevent
the decision-maker from reaching a fair decision. ... Professor
Baxter gives a commonly cited example, namely
the mere fact that a
decision-maker is a member of the SPCA does not necessarily
disqualify him from adjudicating upon a matter
involving alleged
cruelty to animals. By the same token, the mere fact that the
presiding officer is white does not necessarily
disqualify him from
adjudicating upon a matter involving a non-white accused. The
converse is equally true. Otherwise no black
magistrate or Judge
could ever administer justice fairly and evenhandedly in a matter
involving white accused.
For
the reasons set out above, the argument that the white magistrate
erred in refusing to recuse himself upon being asked to do
so at the
appellant's trial is both unfortunate and untenable. The fact that he
is a white person, does not disqualify him from
presiding in a case
involving an accused belonging to a different race.
47
This passage was cited with approval by the highest court in the land
in
President of the
Republic of South
Africa
and Others v
South African Rugby Football Union and
Others
[1999] ZACC 9
;
1999 4 SA 147
CC ("Sarfu") para 43. The
Collier
case was extensively referred to by the first respondent in
his written judgment. It is remarkable that the applicant chose
to
persist with this argument after, if she had not known of the
Collier
principle before, the first respondent brought it pertinently to
her attention in his judgment.
48
The Constitutional Court had occasion to consider the test to be
applied in applications
for the recusal of judicial officers in
South
African
Commercial
Catering and Allied
Workers
Union and
Others
v
Irvin
&
Johnson
Ltd
(Seafoods
Division
Fish
Processing)
[2000] ZACC 10
;
2000 3 SA 705
CC paras 11 to 17. Ishall quote these paragraphs in
full, omitting only the footnotes:
[11]
In
Sarfu,
this Court formulated the proper approach to recusal
as follows:
'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 a mind open to persuasion by the evidence
and the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken
by the Judges to
administer justice without fear or favour; and their ability to carry
out that oath by reason of their training
and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They
must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves. At
the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite for a fair trial and
a judicial
officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part of the litigant for
apprehending
that the judicial officer, for whatever reasons, was not
or will not be impartial.'
[12]
Some salient aspects of the judgment merit re-emphasis inthe present
context. Informulating the test in the terms quoted above,
the Court
observed that two considerations are built into the test itself. The
first is that in considering the application for
recusal, the court
as a starting point presumes that judicial officers are impartial in
adjudicating disputes. As later emerges
from the
Sarfu
judgment, this in-built aspect entails two further consequences.
On the one hand, it is the applicant for recusal who bears the onus
of rebutting the presumption of judicial impartiality. On the other,
the presumption is not easily dislodged. It requires 'cogent'
or
'convincing' evidence to be rebutted.
[13]
The second in-built aspect of the test is that 'absolute neutrality'
is something of a chimera in the judicial context. This
is because
Judges are human. They are unavoidably the product of their own life
experiences and the perspective thus derived inevitably
and
distinctively informs each Judge's performance of his or her judicial
duties. But colourless neutrality stands in contrast
to judicial
impartiality - a distinction the
Sarfu
decision itself vividly
illustrates. Impartiality is that quality of open-minded readiness to
persuasion
-
without unfitting adherence to either party or to the Judge's own
predilections, preconceptions and personal views - that is the
keystone of a civilised system of adjudication. Impartiality
requires, in short, 'a mind open to persuasion by the evidence and
the submissions of counsel'; and, in contrast to neutrality, this is
an absolute requirement in every judicial proceeding. The
reason is
that:
'A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before courts and other tribunals
. ... 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.'
[14]
The Court in
Sarfu
further alluded to the apparently double
requirement of reasonableness that the application of the test
imports. Not only must the
person apprehending bias be a reasonable
person, but the apprehension itself must in the circumstances be
reasonable. This two-fold
aspect finds reflection also in
S v
Roberts,
decided shortly after
Sarfu,
where the Supreme
Court of Appeal required both that the apprehension be that of the
reasonable person in the position of the litigant
and that it be
based on reasonable grounds.
[15]
It is no doubt possible to compact the 'double' aspect of
reasonableness inasmuch as the reasonable person
should
not be supposed to
entertain unreasonable or ill-informed
apprehensions. But the
two-fold emphasis does serve to underscore the weight of the burden
resting on a person alleging judicial
bias or its appearance. As Cory
J stated in a related context on behalf of the Supreme Court of
Canada:
'Regardless
of the precise words used to describe the test, the object of the
different formulations is to emphasise that the threshold
for a
finding of real or perceived bias is high. It is a finding that must
be carefully considered since it calls into question
an element of
judicial integrity.'
[16]
The 'double' unreasonableness requirement also highlights the fact
that mere apprehensiveness on the part of a litigant that
a Judge
will be biased - even a strongly and honestly felt anxiety - is not
enough. The court must carefully scrutinise the apprehension
to
determine whether it is to be regarded as reasonable. Inadjudging
this, the court superimposes a normative assessment on the
litigant's
anxieties. It attributes to the litigant's apprehension a legal value
and thereby decides whether it is such that it
should be countenanced
in law.
[17]
The legal standard of reasonableness is that expected of a
person in the circumstances of the individual whose conduct
is being
judged. The importance to recusal matters of this normative aspect
cannot be over-emphasised. In South Africa, adjudging
the objective
legal value to be attached to a litigant's apprehensions about bias
involves especially fraught considerations. This
is because the
administration of justice, emerging as it has from 'the evils and
immorality of the old order' remains vulnerable
to attacks on its
legitimacy and integrity.
Courts
considering recusal applications asserting a reasonable apprehension
of bias must accordingly give consideration to two contending
factors. On the one hand, it is vital to the integrity of our courts
and the independence of Judges and magistrates that ill-founded
and
misdirected challenges to the composition of a Bench be discouraged.
On the other, the courts' very vulnerability serves
to
underscore the pre-eminent value to be placed on public confidence in
impartial adjudication. In striking the correct balance,
it is 'as
wrong to yield to a tenuous or frivolous objection' as it is 'to
ignore an objection of substance'.
49
I wish in this context to make two observations. Firstly, the test
propounded by the
Constitutional Court, binding on all courts and
tribunals in this country, is expressly made applicable to benches
both of judges
and magistrates. Counsel for the applicant argued that
a distinction should be drawn in the present context between a
magistrate
acting as presiding officer in a judicial capacity and a
magistrate acting as presiding officer in an administrative capacity.
I see no justification for this distinction. The magistrate who
presides in administrative proceedings carries with him the same
values and training as he does when he ascends the bench in court.
Secondly, as the applicant herself was a magistrate, the
reasonableness
or otherwise of her alleged perception must be tested
from the perspective of a reasonable magistrate.
50
The perception of a lay person of racial bias on the present facts
would therefore
not be a reasonable perception. All the more so in
the case of a magistrate. The claim that the first respondent
committed a reviewable
irregularity when he refused to recuse himself
when asked to do so on 8 February 2010 must accordingly fail.
However, counsel argued
that during the hearing itself, certain
things happened that justified the applicant's perception that the
first respondent was,
on racial grounds, biased against her. I
proceed to deal with counsel's submissions.
51
During
the hearing
before
him,
the
first
respondent asked an
attorney
who testified about a complaint she had lodged against the applicant
to
describe
the
racial
group
to
which
she
belonged.
[2]
The
witness
answered
that she
was a
coloured person.
The
applicant complained that this constituted a descent into
the arena
by
the
first respondent.
52
In my view, it did not. The issue of the race of the complainants had
been raised by the applicant herself when she asserted,
falsely as it
turned out, that all the persons who made complaints against her were
white. The question of the first respondent
was, in the deplorable
circumstances created by the applicant herself, relevant. This single
line of questioning by the first respondent
was not a descent into
the arena. It was a legitimate attempt to get to the truth. A
judicial officer presiding in a trial is not
precluded from asking
questions of witnesses. That principle applies with even greater
force in administrative proceedings. And
even were the questioning a
descent into the arena (which it was not) it would not show racial
bias on the part of the first respondent.
53
Then there was an incident in which, during an adjournment, the
evidence leader sat
with a (white) witness who was under cross
examination at the time while the witness listened to previous
testimony through
the recording machine . There was no suggestion
that the evidence leader made any remarks during this process that
might have influenced
the way the witness would testify. The sole
complaint at this level was that the applicant ought to have been
invited to be present
while the witness listened to the recording.
Ineed say no more about this complaint that whatever its merits, it
did not show racial
bias on the part of anybody.
54
The applicant alleged that during the hearing she had found the first
respondent in
conference with the evidence leader while the latter
was interviewing a witness. This incident was raised by the applicant
when
the hearing resumed. The first respondent's additional reasons
show that the first respondent experienced difficulties in finding
a
place to have his tea during the adjournments. He found himself
obliged to take his tea in the conference room in which the hearing
was being conducted. In this situation the first respondent was from
time to time during adjournments alone in the conference room
with
the evidence leader. But the first respondent denies having
participated in any conference with the evidence leader while
she was
interviewing a witness. And even if the first respondent had
participated in such a conference (which he did not) that
fact would
not indicate or even suggest racial bias.
55
The third issue, whether the first respondent ought on the ground of
a perception of
racial bias on his part against the applicant to have
recused himself, must therefore be determined against the applicant.
I may
say that the record bears out the first respondent's own
assessment in his judgment that he bent over backwards to be fair to
the
applicant.
56
Costs, in the circumstances of this case, must follow the result.
Certain interlocutory
costs issues were reserved for determination by
the court hearing the review. It is appropriate that those costs
should similarly
follow the result.
57
I make the following order:
1
The application is dismissed with costs, including all those costs
which were reserved for the decision
of the court hearing the review.
2
The costs orders in the previous paragraph will include the costs
consequent upon the employment, where
applicable, of both senior and
junior counsel.
_____________________
NB
Tuchterr
Judge
of the High Court
17
August 2015
NdamaseVanGreuning7
4070.12
[1]
Counts
3,
5, 6,
10, 11,
17, 19 and 23.
On count
10 he
found
there
had
been a
splitting
of charges
and
recorded
the "guilty
period"
as
16
February
2009 to
18 March
2009.
[2]
Or,
more
accurately,
to
which
in the
pre-democratic
era
she
would
have
been
adjudged by the legislation then in force to have belonged.