Sesele v Matjhabeng Local Municipality and Others (3426/2005) [2005] ZAFSHC 132 (1 September 2005)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2005
>>
[2005] ZAFSHC 132
|

|

Sesele v Matjhabeng Local Municipality and Others (3426/2005) [2005] ZAFSHC 132 (1 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3426/2005
In
the case between:
RSB
SESELE
Applicant
and
H J STANDER
1
ST
Respondent
THE
MATJHABENG LOCAL MUNICIPALITY
2
nd
Respondent
S
J LEEUW
3
rd
Respondent
(Executive Mayor,
Matjhabeng Local Municipality)
R N PITSO
4
th
Respondent
(Acting Municipal Manager
of Matjhabeng Local
Municipality)
M J D SIZEPHE
5
th
Respondent
_____________________________________________________
HEARD ON:
25 AUGUST 2005
JUDGEMENT:
RAMPAI J
_____________________________________________________
DELIVERED ON:
1 SEPTEMBER 2005
_____________________________________________________
[1] These proceedings
were initiated by way of an urgent application on Thursday the 11
th
August 2005 before Hattingh J. He determined the formal deadlines
for the exchange of the customary affidavits and postponed the
matter
to Thursday the 25
th
August 2005 for the hearing of argument. The relief sought is an
interim interdict. The matter is apposed by all the five
respondents.
[2] The applicant is the
municipal manager of Matjhabeng Local Municipality, the 2
nd
respondent. He was appointed on 5
th
December 2001. His employment contract is supposed to endure until
the 4
th
of December 2006. The five year term contract is currently under
threat of premature termination. He was effectively suspended
from
work on the 1 March 2005. On the 22
nd
March 2005 he was formally charged. He now faces several counts of
misconduct. I deem it unnecessary to go into details. Apparently
he
denies the allegations levelled against him. Notwithstanding the
suspension he continues to receive his salary.
[3] The 2
nd
respondent appointed the 1
st
respondent to preside over the proceedings in the disciplinary
tribunal and appointed the 5
th
respondent to prosecute. Both gentlemen were attorneys. They still
practice as such at the moment. The applicant also appointed
attorneys to defend him.
[4] The matter was first
set down for hearing on Wednesday the 20
th
March 2005. The applicant did not attend. His lawyer, Mr. M.J.
Willemse informed the disciplinary tribunal that the applicant was
suffering from major depression. The excuse was accepted. The
hearing was postponed.
[5] The matter was again
set down for hearing on Monday the 16
th
May 2005. The applicant did not attend. His lawyer, Mr. C.D. Dell
informed the disciplinary tribunal that his client was suffering
from
major depression. Again the excuse was accepted. The hearing was
again postponed.
[6] The matter was set
down for hearing on Monday the 4
th
July 2005. Once again the applicant did not attend. His lawyer, Mr.
Willemse informed the disciplinary tribunal that the applicant
was
once again suffering from major depression. He applied for the third
postponement as a result of the applicant’s illness.
The excuse
was found unacceptable by the 5
th
respondent. The 5
th
respondent opposed the applicant’s application to have the hearing
postponed for the third time. The 1
st
respondent adjourned the proceedings to the next day for the evidence
relevant to the applicant’s condition to be led.
[7] On Tuesday the 5
th
July 2005 the applicant did not show up. However, his lawyer called
Dr. Stevens, a clinical psychologist to testify on behalf of
the
applicant. His psychologist was then cross-examined by the 5
th
respondent afterwards. Certain unanswered questions remained. The
1
st
respondent found the psychological testimony inconclusive. He
therefore ruled that the 2
nd
respondent be afforded an opportunity to have the applicant examined
by a psychiatrist of the 2
nd
respondent’s choice; that the applicant’s own psychiatrist and
the 2
nd
respondent’s psychiatrist should be called to testify about their
findings. The proceedings were adjourned yet again. Let me
point
out at this juncture that it emerged during the testimony of the
psychologist that the applicant’s treating psychiatrist
was a
certain Dr. van Jaarsveld. The applicant’s contention that the 1
st
respondent did not order him to call Dr. van Jaarsveld has no force
since it cannot be reconciled with his own averment that the
psychiatric evidence was required by the 1
st
respondent. It seems to me improbable that the 1
st
respondent would have required only one of the two litigants to
present psychiatric evidence to the exclusion of the other.
Obviously
the applicant’s lawyer and the 5
th
respondent had to liaise in order to give effect to the ruling by the
1
st
respondent.
[8] On Friday the 8
th
July 2005 the disciplinary tribunal resumed. The applicant was still
absent. His psychiatrist, Dr. van Jaarsveld did not attend
the
inquiry. No explanation was given for his absence. The 2
nd
respondent’s psychiatrist, Dr. Kwekwe, also did not attend. The
5
th
respondent explained the reason for his absence. The end result of
all this was that for the third time in succession the disciplinary
tribunal could not get the disciplinary hearing started. Again the
applicant, whose health condition was questioned and probed,
got away
with it. In practical terms he managed, in an indirect manner, to
have the disciplinary hearing postponed despite the opposition
of the
5
th
respondent. The 1
st
respondent found that the applicant had not advanced a valid
excusable reason for his absence at the disciplinary hearing. In a
endeavour to enforce the applicant’s attendance next time he ruled
that the applicant’s salary for the particular month be temporarily
withheld by the 2
nd
respondent; that the disciplinary proceedings be postponed to Monday
the 8
th
August 2005 for hearing and that on Monday the 8
th
August 2005, the disciplinary hearing would get under way whether the
applicant was present or not.
[9] What happened on
Monday the 8
th
August 2005 does not appear on papers. It may well be that the
parties made some alternative arrangements to skip that seeing that
the next day, Tuesday the 9
th
August 2005 was a public holiday. Their disciplinary tribunal
convened for the fourth time for the disciplinary hearing of the
applicant
on Wednesday the 10
th
August 2005. On this occasion the applicant was present. However,
the hearing again could not start. The applicant’s attorney,
Mr.
C.M. Dell applied on behalf of the applicant that the 1
st
respondent should recuse himself as the disciplinary presiding
officer of the disciplinary tribunal. The 5
th
respondent opposed the application. The 1
st
respondent summarily refused the applicant’s application for
recusal. After the ruling, the matter stood down until the next day
at the request of the applicant to enable him to seek legal opinion.
[10] The next day on
Thursday the 11
th
August 2005 this urgent application was launched. The purpose of
this application according to the applicant is to prevent the
respondent’s
especially the 1
st
respondent and the 5
th
respondent from proceeding with the disciplinary hearing pending the
finalization of the review application he contemplates bringing
in
due course in order to have the 1
st
respondent refusal to recuse himself as the disciplinary presiding
officer reversed by this court. To a certain extent the applicant
has partially attained the objective in the sense that, for the
fourth time in a row, the disciplinary hearing could not proceed
according to plan from 10
th
August 2005 as scheduled.
[11] The applicant sought
a rule
nisi
returnable on Thursday the 15
th
September 2005. By way of an interim interdict he sought a
provisional order whereby:
The 1
st
respondent was directed to postpone,
sine
die,
the disciplinary hearing which the 2
nd
respondent had initiated against him.
The five respondents
were restrained from proceeding with such disciplinary proceedings
pending the finalization of the review application
he intended
bringing against the 1
st
respondent for refusing to recuse himself on the 10
th
August 2005.
The 2
nd
respondent was directed to terminate its mandate in terms of which
the 5
th
respondent was appointed to act as a prosecutor and the 2
nd
respondent directed to appoint an independent prosecutor in this
disciplinary hearing.
The applicant was
directed to file his application to have the decision of the 1
st
respondent reviewed and set aside by no later than the 19
th
August 2005.
The second respondent
was directed to pay the costs of this application or alternatively
the respondents were directed to pay such
costs jointly and
severally the one paying the others to be absolved.
As
I have indicated all the respondents oppose this application.
[12] The factual matrix
shows that the dispute between the parties is inextricably tied up
with the reasons which induced the application
for the recusal of the
1
st
respondent as the disciplinary presiding officer as well as the
reasons which prompted the application for the removal of the 5
th
respondent as the tribunal prosecutor. The reasons advanced by the
applicant are largely based on the legal principles laid down
in our
caselaw. Naturally, I am bound to seek guidance from the relevant
legal principles in my endeavours to resolve the dispute
at hand.
[13] The applicant seeks
an interim relief. The requisite for an interim relief or interdict
are well known. They are firstly, a
prima
facie
right; secondly, an apprehension of harm; thirdly, a positive balance
of convenience; and fourthly, the absence of any other ordinary
remedy, vide
ERICKSON
MOTORS (WELKOM) LTD v PROTEA MOTORS (WARRENTON)
1973 (3) SA 685
(AD). The correct approach demands that those
requisites should be considered in an integrated fashion in order to
ascertain whether
the court should exercise its discretion in favour
of the applicant or not. Vide Erasmus: Superior Court Practice,
page E 8 -9.
I shall follow that approach in this matter.
[14] The first requisite
of an interim interdict is that an applicant must set up a
prima
facie
right though open to some doubt for a temporary relief,
KNOX
D’ARCY LTD & OTHERS v JAMIESON & OTHERS
1995(2) SA 579 (WLD) at 592 H. The applicant as an accused in a
disciplinary tribunal has a fundamental right to a fair disciplinary
inquiry just like an accused in a criminal court of law. As an
employee he is further entitled to his constitutionally entrenched
right to a fair labour practice. (Vide section 23 RSA Constitution
Act No. 108/1996). The right to a fair labour practice encompasses
the notion of an unbiased disciplinary hearing. About the
applicant’s
prima
facie
right there was really no disagreement between the parties.
Therefore I am inclined to find that the applicant has established
the
first requisite of an interim interdict. Coupled to this right,
of course, is the cardinal question as to whether the applicant
had a
right, even if it be a
prima
facia
right, to have the disciplinary proceedings suspended pending the
review application he intents bringing to this court.
[15] The second requisite
of an interim interdict is that the applicant must establish a
well-grounded apprehension of irreparable
harm if the interim relief
he seeks is not granted. The applicant’s apprehensive complaint,
in this case, is that the 1
st
respondent is biased. The 1
st
respondent has been tasked to preside over the disciplinary enquiry.
An employee who is accused of any misconduct by an employer
and is
brought before a disciplinary tribunal is certainly at liberty to
raise a protest if he or she reckons that the disciplinary
presiding
officer has strayed away from the acceptable parameters of
impartiality and that such officer has reached a point of no
return.
When such a situation arises in a disciplinary tribunal it becomes
imperative for the disciplinary presiding officer to
consider the
matter dutifully, sensitively and objectively.
[16] In the case of
MOCH
v NEDTRAVEL (PTY) LTD T/A AMERICAN EXPRESS TRAVEL SERVICE
1996(3) SA 1 AD at page 13 H – J, Heffer JA said the following
about the attitude to be adopted by a judge accused of being biased:
¡°
A
judicial officer should not be unduly sensitive and ought not to
regard an application for his recusal as a personal affront. (Compare
S
v Bam
1972 (4) SA 41
(E) at
43G-44.) If he does, he is likely to get his judgment clouded; and,
should he in a case like the present openly convey his
resentment to
the parties, the result will most likely be to fuel the fire of
suspicion on the part of the applicant for recusal.
After all, where
a reasonable suspicion of bias is alleged, a Judge is primarily
concerned with the perceptions of the applicant
for his recusal …”
[17] In
S
v RALL
1982(1)
SA 828 (AD) at 831 J – 832 A, Trollip AJA, as he then was, stressed
the impartial role of a judge in the following words
of wisdom:
¡°
According
to the abovequoted dictum of CURLEWIS JA the Judge must ensure that
'justice is done'. It is equally important, I think,
that he should
also ensure that justice is seen to be done. After all, that is a
fundamental principle of our law and public policy.
He should
therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those who
are
concerned in the trial and its outcome, especially the accused.”
[18] The requisites of
the test for the appearance of judicial bias were recently tabulated
by Howie JA, as he then was, in the case
between
S
v ROBERTS
1999 (4) SA 915
SCA at paragraph 32 read with paragraph 34. There
must be a suspicion that the presiding judicial officer might, and
not would,
be biased; the suspicion must be that of a reasonable
person in the position of the accused or the litigant; the suspicion
must
be based on reasonable grounds; and the suspicion is one which a
reasonable person referred would, not might, have.
[19] In brief the thrust
of the test is simply that the suspicion of possible bias must be
reasonably grounded or founded. The mere
possibility of bias
apparent to a layman, would not be sufficient to warrant the recusal
of a presiding judicial officer, vide Mönnig
infra at 876C. When
perceptions or suspicions of partiality arise the assessment of
reasonableness or otherwise of such suspicions
must be assessed
bearing in mind the nature of the relationship between the feuding
litigants. In the case of
BTR
INDUSTRIES SA (PTY) LTD v METAL AND ALLIED WORKERS UNION
1992 (3) SA AD 673 at 697 E – H. Hoexter JA, echoed the following
words of Didcott J:
¡°
'It
seems to me that, in the first place, it is of great importance to
take account of the sort of litigation that was involved here.
It was
not the ordinary sort. It was not a dispute over a liquor licence or
a motor carrier permit or town planning permission. It
was not a
dispute in which the tensions and antagonisms, if any, were merely
those which arise pro tem, ad hoc, for the time being,
between people
who find themselves on opposite sides of some such dispute. We are
dealing with a highly sensitive field. The relationship
between
management and workers in this country and many others has
historically been tense and strained for much of the time. It
is a
relationship that is characterised by a high degree of mutual
suspicion, at times of acrimony and hostility, and for understandable
reasons, in that there are fundamental conflicts of interest between
management and workers, or at the very least what are perceived
by
them as being fundamental conflicts of interests. The industrial
legislation recognises all this. It recognises that this is not
an
area in which one easily gets people to see the other side's point of
view, that it is not an area in which one easily gets give
and take,
that it is an area in which people are highly partisan, in which they
tend to see matters in their own interests and from
their own point
of view only, hardly surprisingly because the matters are matters
that are basic, wages and the like on one side,
profitability on the
other.'”
This passage aptly
describes the kind of labour tension that has bedevilled the
relationship between the applicant and the second
respondent in the
instant case. Sooner than later it has to be resolved one way or the
other.
[20] Where the suspicion
of bias satisfies the legal requirements of the judicial test, the
disciplinary accused’s call for the
recusal of the disciplinary
presiding officer is based on reasonable grounds. In such a
situation the disciplinary presiding officer
is obliged to recuse
himself or herself. Conradie J in
MöNNIG
& OTHERS v COUNCIL OF REVIEWS & OTHERS
1989 (4) SA 866
CPD at 875 J – 876 A stated that if a tribunal
refuses to recuse itself it misdirects itself on the question of law
and misconceives
the basis of its very jurisdiction.
¡°
It
is, therefore, a mistake of law which, even on the traditional view
of the reviewability of mistakes of law, falls to be corrected.
I
have no doubt at all that the third respondent misdirected itself in
assessing whether or not the recusal application should be
granted.
It failed to ask itself the one cardinal question which it was
obliged to consider, namely what a reasonable litigant would
think of
its being seized of the trial …”
[21] The correct approach
whenever a complaint or shall I say suspicion of bias is raised
during the course of any judicial proceedings
or tribunal
disciplinary proceedings was restated 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.”
Vide
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA & OTHERS v SOUTH AFRICAN RUGBY
FOOTBALL UNION & OTHERS
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at 177B, per Chaskalson P,
et
al
.
[22] It must always be
borne in mind that as a general rule the superior courts of our
country are reluctant and indeed should be
slow to intervene in
unterminated proceedings in the lower courts. Such superior
intervention is not generously or liberally exercised.
In general
such powers are limited to rare cases where grave miscarriage of
justice might otherwise result if such proceedings
were let to carry
on until the case reaches its logical conclusion in the ordinary
course of events. Vide
SITA
AND ANOTHER v OLIVIER, NO, AND ANOTHER
1967 (2) SA 442
AD at 447 E - F where Botha JA said the following:
¡°
The
normal remedy available to an accused person against a wrong decision
given by an inferior court on a question of law is to appeal
to a
Superior Court, but only after conviction. (See
sec. 103
of the
Magistrates' Courts Act, 32 of 1944
). Nor will a Superior Court
ordinarily interfere in such a case by way of review before a
conviction has taken place in the inferior
court. (See
sec. 98
(4) of
the
Magistrates' Courts Act, and
Wahlhaus and Another v Additional F
Magistrate, Johannesburg, and Another,
1959 (3) SA 113
(AD) at p.
119). But as was pointed out in the latter case at p. 119 -
'by
virtue of its inherent power to restrain illegalities in inferior
courts . . .'”
In
HAYSON
v ADDITIONAL MAGISTRATE
1979 (3) SA 155
CPD at 160 A – B Van Winsen J said the following:
¡°
As
a general rule a Superior Court will not by way of entertaining an
application for review interfere with incompleted proceedings
in an
inferior court.”
[23] In
MENDES
AND ANOTHER v KITCHING NO AND ANOTHER
1996 (1) SA 259
ECD at 269 A, Kroon J said the following:
¡°¡¦
where
a magistrate presiding over a trial has incorrectly applied the law
there will, generally speaking, be no room for a review,
at least
while the trial is in progress.”
In
MAGISTRATE,
STUTTERHEIM v MASHIYA
2004 (5) SA 209
SCA at paragraph 14, Cameron JA had this to say:
¡°
The
higher Courts, however, have emphasised repeatedly that the power to
intervene in unconcluded proceedings in lower courts will
be
exercised only in cases of great rarity..”
All these decisions
clearly show that a litigant involved in legal or disciplinary
proceedings in the lower court has no right to
suspend those
proceedings midstream because he intends to take the matter on
review. To justify the grant of such a postponement,
vide
MOLEFE
v DIHLABENG LOCAL MUNICIPALITY
2003 (4) ALL SA 269
OPD per Hancke J.
[24] I now proceed to
examine the facts to determine whether the applicant’s fear of
irreparable harm to his
prim
facie
right is well-grounded. The crux of the applicant’s complaint is
that he has reasonable suspicion that the 1
st
respondent is biased. According to the applicant he has an
apprehension that he will not have a fair disciplinary hearing unless
such disciplinary proceedings are stayed indefinitely pending his
contemplated review application. The purpose of such review
application
will be to have the 1
st
respondent removed from the disciplinary tribunal as its disciplinary
officer. It is therefore important to evaluate the applicant’s
reasons relating to his suspicions of the respondent’s alleged
bias.
[25] According to the
applicant, the mere fact that the 1
st
respondent on his own accord directed that the applicant salary be
withheld pending the finalization of the disciplinary hearing
was
indicative of the 1
st
respondent’s bias and such decision strengthened his well-grounded
apprehension. This is his first ground per training to his
suspicion
of partiality.
The 1
st
respondent’s contention was that he was not precluded by clause
7.5.4 from making a decision authorising the temporary withholding
of
the applicant’s salary. In doing so, he alleged that he was
prompted by a desire to secure the attendance of the applicant
so
that the disciplinary hearing could start. Besides the salary he
also took into consideration a number of other factors.
[26] Clause 7.5.4,
annexure F empowers the disciplinary presiding officer to make
certain interim arrangements including the withholding
of an accused
employee salary provided such an accused employee’s has already
been found guilty of a misconduct. As I understand,
such a drastic
measure is limited between two faces of the disciplinary proceedings,
namely the verdict and the sanctioning. Since
the disciplinary
proceedings in the instant case had not yet progressed beyond the
stage of a verdict, the salary of the 1
st
respondent could not be competently withheld. Therefore, I am of the
view, that the decision of the 1
st
respondent was indeed unauthorised and accordingly wrong.
[27] Wrong though the
decision was, it did not in my view, constitute an irregularity.
Moreover, the decision did not objectively
manifest itself as a
biased disposition of the 1
st
respondent towards the applicant to justify the immediate suspension
of the disciplinary proceedings or to justify the immediate
review of
that decision. On analysis I could find absolutely nothing
fundamentally irregular about the 1
st
respondent’s judgment as embodied in annexure E as regards the
salary issue. The complaint concerning the withholding of the
applicant’s
salary is now a matter of academic importance seeing
that the applicant received his full salary and uncut benefits in any
event.
[28] According to the
applicant the hostile manner in which his attorney, Mr. Willemse was
treated by the 1
st
respondent triggered the perception of bias. The complaint by the
applicant that the 1
st
respondent was biased towards him because he constantly interrupted
his lawyers during argument and also that the 1
st
respondent never interrupted the 5
th
respondent by putting questions to him is vehemently denied by the
1
st
respondent and the 5
th
respondent.
[29] In his answering
affidavit the 5
th
respondent averred in paragraph 7.13:
“
7.13
ADD SUB PARAGRAPHS 10.22 TO
10.23 THEREOF
I note contents hereof but need to
state that:
7.13.1 the suggestion that the First
respondent was not willing to listen to argument by
Mr
Willemse
, is wholly
incorrect.
Mr Willemse
alone argued for
42 minutes
on
8
th
July 2005
still. The First
Defendant raised some issues with him during the argument which is a
normal practice in all hearings. The First
Respondent also put
questions to me during my argument, particularly on
18
th
May 2005
. This ground of
the perceived bias by the First Respondent has no merits. I remember
specifically that I wanted to argue the point
furnishing further
particulars extensively on
16
th
May 2005,
but the First
respondent interrupted me as well and indicated that we, myself and
the Applicant’s legal representative, should
resolve the matter of
further particulars between the two of us. He then left the chambers
and we discussed that matter in his absence
and put on record what we
all agreed about later. So if that is a ground for the Applicant to
allege bias on the part of the First
Respondent, then his
apprehension is neither reasonable nor justifiable and it can never
be, that of a reasonable, objective and
well informed litigant and
such apprehension stand to be rejected;”
[30] In the replying
affidavit the applicant hardly made any attempt to take this point
any further. It can therefore be accepted
that there is no merit in
this second complaint about the perceived hostile and biased
treatment of the applicant’s lawyers. In
the case of
TAKE
& SAVE TRADING CC v STANDARD BANK OF SA LTD
2004 (4) SA 1
SCA the participative role of a judge in court debate
was considered and ventilated. Harms JA observed that a judge was
not simply
a silent empire and that fairness of court proceedings
required of a judge to be actively involved in the management of the
trial
to ensure among others, that public resources were not wasted.
In
casu
a speedy finalization of the disciplinary hearing of a senior
municipal employee suspended with full pay is certainly a commendable
objective for the disciplinary presiding officer to pursue in order
to curb a waste of public resources. Every postponement of such
hearings inflates waste of public resources because such an employees
continues to earn for doing nothing productive.
[31] In the instant case
for instance, I read the papers in advance. I had the opportunity to
digest the issues and the written submissions
by the counsels. I
identified the strengths and the weaknesses of each litigant’s case
and formed my own
prima
facie
view of the matter. I hasten to add that it was a flexible and not a
rigid view. The ultimate fate of the matter was not sealed
before I
had had the opportunity of listening to oral argument by the lawyers.
During oral legal argument I actively engaged one
counsel a whole
lot more than the other. Whenever I did so, my genuine aim was to
exploit various or certain trends, weak or strong,
in his client’s
case without losing balance. The number, the nature and the
complexity of the weak spots identified in a case
of a particular
litigant are but some of the factors which may determine the duration
of such a debate between a particular counsel
and a particular judge.
At times it becomes necessary for a judge to invite a particular
counsel to address certain issues which
are bothering him or her in
order to have all the obscured issues ventilated.
[32] Quite often
counsel’s input elicited by such a participative debate between the
lawyer and the bench freshens the pack and
re-aligns it with the best
view. Such refreshment may, at times, be so persuasive that it
swings the pendulum from the one extreme
to the other extreme of the
prima
facie
view initially held by a judge. A healthy debate of this kind can
persuade a judge to see things differently and move him or her
to
rebalance the scale in accordance with the most convincing argument
presented. Absolute neutrality is an unattainable ideal.
Objective
impartiality is the hallmark of an unattainable unbiased mind.
[33] In the third place
the applicant complained that the written reasons advanced by the 1
st
respondent for his judgment confirmed the disciplinary presiding
officer’s negative attitude towards the applicant. Those reasons,
the applicant stressed, served as pure prove of the disciplinary
presiding officer’s biased attitude towards him. In support of
this complaint counsel for the applicant then went on to enumerate
several passages of the judgment. I shall consider only a few
of
these passages.
[34] As regards paragraph
1.10 on page 53 of the record the 1
st
respondent stated:
¡°
1.10 Op
die 5de Julie 2005, het Dr Stevens
inderdaad kom getuig. Sy getuienis was dat hy vir Mnr Sesele by
verskeie geleenthede gesien het en dat Mnr Sesele inderdaad aan
major
depressie gelei het. Mnr Sizephe het vir Dr Stevens onder
kruisverhoor geneem, onder andere vanweë die feit dat daar op ‘n
stadium gedurende Maart ‘n mediese sertifikaat uitgeskryf is, in
terme waarvan Mnr Sesele van diens geplaas is, vanaf die 22ste
Maart
tot aan die einde van Maart 2005, terwyl die sertifikaat gedateer was
die 17de Maart 2005. Dr Stevens het die tydaspek van
die mediese
sertifikaat probeer verduidelik deur te sê dat dit gedoen was op
versoek van Mnr Sesele, maar was hy nie bereid om toe
te gee dat dit
‘n doelbewuste poging was van Mnr Sesele om hom te manupileer nie.”
[35] As regards paragraph
1.15 op page 54 of the record the 1
st
respondent stated:
¡°
1.15 Mnr
Sizephe het ‘n stelling aan Dr Stevens gemaak dat Mnr Sesele se
jongste siekte toestand in skelle kontras staan met Mnr
Sesele se
bereidwilligheid om op dieselfde Vrydag, as wat hy vir Dr Stevens
geskakel het, met klagtes van sy depressie, gesond genoeg
was om in
‘n ander dissiplinêre verhoor getuienis af te lê. Dr Stevens was
nie bereid om ‘n mening hieroor te waag nie.”
[36] The complaints of
the applicant in connection with the above two passages have no
substance at all. In these passages the 1
st
respondent expressed no personal views and made no personal remarks
whatsoever concerning the applicant. He merely summarized what
transpired in the disciplinary tribunal during the cross-examination
of Dr. Stevens by Mr. Sizephe, in other words, the 5
th
respondent, on Tuesday 5
th
July 2005. It was the 5
th
respondent’s intense probe which unearthed unfavourable evidence
about the applicant’s alleged health condition. It was therefore,
not the hostile or negative attitude of the 1
st
respondent which cast some doubt as to alleged ailment of the
applicant. In my view, there was virtually no appearance of biased
mind on the part of the 1
st
respondent in any of those two passages.
[37] As regards paragraph
2.3 op page 56 the 1
st
respondent stated:
¡°
2.3 Dat
Mnr Sesele tydelik ontneem sal word van sy vergoeding in ‘n poging
om hom te verplig om sy verhoor te staan, onder die uitdruklike
voorwaarde dat indien hy onskuldig bevind word, aan al die ten laste
gelegde aanklagtes, sy volledige salaris aan hom terugbetaal
moet
word.”
I have already dealt
with this complaint. It is unnecessary to repeat myself here.
Suffice to say I came to the conclusion that
the 1
st
respondent was wrong and that he was not empowered to make such
forfeiture order prematurely. However, the mere fact that he
incorrectly
interpreted clause 7.5.4 did not in itself portray him as
a adjudicator with a biased mind.
[38] As regards paragraph
5 on page 57 the 1
st
respondent stated:
¡°
5. Ek
is ongelukkig nie oortuig daarvan dat Mnr Sesele werklik so siek is
dat hy nie sy verhoor kan staan nie. By die 1ste verskyning
in
hierdie aangeleentheid op die 30te Maart 2005, was Mnr Sesele self
teenwoordig. Ons het die geleentheid gehad om hom waar te
neem, en
was dit baie duidelik dat alhoewel hy met ‘n siekte sertifikaat
verskoon is, van sy werksverpligtinge, was hy heeltemal
in staat om
deel te hê aan die verrigtinge en het hy almal vriendelik gegroet,
instemmend geknik wanneer daar sekere aspekte geopper
is en alhoewel
ons nie ‘n psigiater is of onsself wil voordoen as ‘n psigiater
nie, het ons geensins die indruk gekry dat hy
te siek was om sy
verhoor te kan staan nie. Dit is ook net belangrik om daarop te let
dat vir elke uitstel wat hy toe daarna afwesig
was, was dit as gevolg
van presies dieselfde sogenaamde major deppressie.”
[39] As regards paragraph
6 on page 57 the 1
st
respondent stated:
¡°
6. Ten
spyte van die feit dat
Dr van Jaarsveld se getuienis beskikbaar was, is daardie getuienis om
een of ander rede weggehou van die tribunal. Toe die werkgewer
gepoog het om Mnr Sesele se mediese toetand te verifieer, is
psigiater wat vir daardie doel aangestel was, en wat gereis het vanaf
Bloemfontein eenvoudig die deur gewys. Die enigste afleiding was
daaruit gemaak kan word is dat Mnr Sesele doelbewus daarop uit
was om
sy werklike mediese toestand te verberg.”
[40] In the aforegoing
passages the 1
st
respondent was evaluating the applicant’s third application for a
postponement of the disciplinary inquiry. He remarked that on
Wednesday the 30
th
March 2005 the applicant attended the tribunal armed with a medical
certificate which declared him to be suffering from a major
depression.
On the strength of that alleged health condition the
applicant’s informal request for a postponement was granted. His
excuse
was accepted on its face value. The 1
st
respondent stated that on that first day of the seating of the
disciplinary tribunal, he, as a layman, was of the opinion that the
applicant, ill though he was, did not project the appearance of a
person so ill that he could not stand his disciplinary trial.
[41] On Monday the 4
th
July 2005 the applicant once again sought a postponement for the
third time. The 5
th
respondent opposed the application. The 1
st
respondent ruled that a formal application be presented the next day.
On Tuesday the 5
th
July 2005 the applicant was once again absent as he had been on a few
previous occasions. His psychologist, Dr Stevens was called
to
testify on his behalf. His evidence did not help the applicant’s
case at all. On the contrary it seriously dented the applicant’s
bona
fides
concerning his major depression excuse. The 1
st
respondent then adjourned the proceedings for three days so that
psychiatric evidence could be led.
[42] The applicant did
not attend. I am almost certain that the applicant was told by his
lawyer, Mr. Willemse on Monday the 5
th
July 2005 that his illness was questioned by the 5
th
respondent and that the disciplinary tribunal was going to hold a
formal inquiry to consider whether or not he was so ill that he
could
not come to the disciplinary tribunal to defend himself against the
accusations. I have reason to believe that the applicant
new from
then on that his health condition would take a centre stage when the
disciplinary tribunal resumed. On the 8
th
July 2005 no sound reason was given why the applicant’s
psychiatrist, Dr van Jaarsveld could not come. The applicant’s
application
for the postponement ended on a very low note. No
further evidence of any sort was led by or on behalf of the agent in
a bid to
combat the serious damage caused during the cross
examination of Dr. Stevens. I have to mention that it was incumbent
upon the applicant
to prove to the disciplinary presiding officer
that his health condition was so weak that he could not attend and
participate at
the disciplinary inquiry. It was not for the 5
th
respondent or the 2
nd
respondent or any other respondent for that matter to prove to the
disciplinary tribunal that the respondent was not ill. He
regrettably
did not make use of that opportunity.
[43] The inexplicable
failure of the applicant to tender psychiatric evidence, the frequent
co-incidences between the flairing up
dates of the applicant’s
depression and the dates allocated for the disciplinary hearings of
his case, his attendance of the disciplinary
tribunal hearings where
he was not involved as an accused but as a witness and his alleged
unwillingness to be examined by the psychiatrist
of the 2
nd
respondent’s choice cumulatively painted a bad picture about the
applicant’s real state of health. On the facts, therefore,
the
negative comments by the 1
st
respondent were justified.
[44] In paragraph 5 of
page 57 the 1
st
respondent commented as follows about the applicant:
¡°
5. Ek
is ongelukkig nie oortuig daarvan dat Mnr Sesele werklik so soek is
dat hy nie sy verhoor kan staan nie. By die 1ste verskyning
in
hierdie aangeleentheid op die 30ste Maart 2005, was Mnr Sesele self
verteenwoordig. Ons het die geleentheid gehad om hom waar
te neem,
en was dit baie duidelik dat alhoewel hy met ‘n siekte sertifikaat
verskoon is, van sy werksverpligtinge, was hy heeltemal
in staat om
deel te hê aan die verrigtinge en he thy almal vriendelik gegroet,
instemmend geknik wanneer daar sekere aspekte geopper
is en alhoewel
ons nie ‘n psigiater is of onsself wil voordoen as ‘n psigiater
ne, he tons geensins die indruk gekry dat hy te
siek was om sy
verhoor te kan staan nie. Dit is ook net belangrik om daarop te let
dat vir elke uitstel wat hy toe daarna afwesig
was, was dit as gevolg
van presies dieselfde sogenaamde major deppressie.”
In paragraph 6 on page
58 the 1
st
respondent commented as follows about the applicant:
¡°
Ten
spyte van die feit dat Dr van Jaarsveld se getuienis beskikbaar was,
is daardie getuienis om een of ander rede weggehou van die
tribunal.”
In my view any
reasonable disciplinary presiding officer in the shoes of the 1
st
respondent would, on those facts, have refused the applicant’s
application for a further postponement seeing that there was no
objective satisfactory and credible evidence to justify the grant of
such a postponement.
MOLEFE
v DIHLABENG
(
supra)
.
The psychologist’s evidence had failed to show that the applicant
was indeed suffering from major depression. The 1
st
respondent’s remarks did not, in my view, justify the applicant’s
suspicion that he might not get a fair and impartial disciplinary
hearing.
(vide
S v
SHACKELL
2001 (4) SA 1
SCA per Brand AJA as he then was).
[45] As regards paragraph
9.13 on page 59 the 1
st
respondent stated:
¡°
Daar
is ook in berekening gebring dat hierdie reëling bloot ‘n
tussentydse reëling is en indien dit sou gebeur dat die werkgewer
om
een of ander rede nie gereed is om op die 8ste Augustus 2005 voort te
gaan met die verhoor nie, dan is ‘n totaal ander stel
feite weer
voor die tribunaal en sal ‘n ander praktiese reeling weer getref
kan word rondom die salaries van Mnr Sesele. Dit is
derhalwe ons
mening dat hierdie bevinding die mees praktiese reëling sou wees,
onder die omstandighede.”
The comments I made
earlier in paragraph 34 are as valid here and now as they were there
and then. But I now wish to add another
aspect to this salary issue.
The 1
st
respondent never intended to deprive the applicant permanently of his
salary. In terms of the 1
st
respondent’s decision the 2
nd
respondent was authorised to withhold the applicant’s salary for a
relatively short period of time on the pay day of that particular
month only. The salary deprivation order would remain operative
until the 8
th
August 2005. It was an interim measure intended to induce the
applicant to attend the disciplinary hearing before the tribunal.

That the order was not renewed on the 10
th
August 2005 is a further indication that the 1
st
respondent did not harbour any partiality against the applicant. He
followed the wrong way in the hope of reaching the right destination.
[46] In the case of
MOHANOE
MPAKANE v TSWELOPELE MUNICIPALITY EN 2 ANDER
,
case 2800/2004, unreported decision of this court, Musi J commented
as follows about the adverse effects of delaying the finalization
of
a disciplinary hearing.
¡°
The
reasons for the need for the prompt commencement and conclusion of a
disciplinary inquiry of this nature are obvious. It is of
the utmost
importance to both the employer and employee that there be certainty
in their relationship. A state of limbo where the
employee’s
future is uncertain and the employer cannot fill his/her position is
undesirable. In
casu
,
the applicant had been earning a full monthly salary for some 8
months to July 2004 …. (11 months to date) whilst rendering no
service at all. It is causing the first respondent considerable loss
and is untenable a situation.”
I
share those sentiments.
[47] There was nothing
wrong with the 1
st
respondent’s delivery of an
ex
tempore
judgment rejecting the application that he should recuse himself.
According to Mnr. Dell, he, Mr. Williams, Mr. Willemse and the
applicant had the opportunity of listening to the tape recordings of
the disciplinary proceedings in the disciplinary tribunal.
Having
done so, he and Mr. Willemse reckoned that a perception of bias was
created. Both of them came to the common conclusion that
they had
every reason to despair, that the applicant’s evidence would never
be accepted as the truth by the 1
st
respondent in the disciplinary hearing to follow. Quite often
ex
tempore
judgments or rulings are handed down in our courts of law. I know of
no law which forbids such a practice. In the circumstances
of this
case as outlined in this judgment I am inclined to agree with the
argument of counsel for the respondents that it was not
only
reasonable but also imperative for the disciplinary presiding officer
to dismiss the application for his recusal there and then.
I am not
persuaded by this fourth complaint. Regrettably Mr. Dell hardly
singled out one passage recorded on tape which he had
which was so
despairingly at variance with the 1
st
respondent’s written judgment as would move me to disassociate
myself with the judgment. (Vide paragraph 5, page 167).
[48] As regards paragraph
26 and 27 of his affidavit on page 179 all I can say is that his plea
that the transcript of the record
should be obtained to show that the
5
th
respondent’s version was absolutely incorrect was amazing, to put
it mildly. He was the applicant’s attorney. The applicant
initiated these proceedings but he was not present when the alleged
perceptions of bias were created on the 4
th
July 2005 or the 5
th
July 2005 or the 8
th
July 2005. The applicant and his two lawyers listened to the tape
afterwards. All three of them knew that the answering affidavit
of
the 5
th
respondent and the written judgment of the 1
st
respondent did not jell with the tape recording of the proceedings.
The applicant’s replying affidavit was filed on the 18
th
August 2005. Yet none of them cared to obtain a transcript of the
disciplinary proceedings in the disciplinary tribunal. No
explanation
was given as to why such an important evidential material
could not be attached either to the founding affidavit or the
replying
affidavit. Who then is to blame for that omission? The
history of the applicant’s case is pathetically characterised by a
series
of acts of omission. This is but only one of them.
[49] The matter was
argued before me on 25
th
August 2005. Counsel for the applicant suggested that time was not
on the applicant’s side which was why a transcript did not
form
part of the applicant’s papers. That might well have been so on
11
th
August 2005. But the same excuse no longer held water on 18
th
August 2005 when the replying affidavit was filed. The matter was
argued before me on 25
th
August 2005, two weeks since these proceedings were launched. I got
the impression that the transcript was still not available.
If it
was counsel for the applicant would certainly have said so. The
applicant would probably have made an application to supplement
his
replying affidavit. No such an application was made. The
apprehension of harm flowing form the suspicion of bias was first
experienced way back on 5
th
July 2005 or 8
th
July 2005 at the very latest. Therefore the decision to apply for
the 1
st
respondent to recuse himself was not suddenly made on 10
th
August 2005 but long before then. The point I am making is this:
there seems to be very little in the transcript for the applicant
and
his lawyers to bemoan its absence from the record. Unfortunate the
transcript is not before me, but it appears to me that its
general
import is captured in the affidavits.
[50] In
TAKE
& SAVE TRADING CC v STANDARD BANK SA LTD
2004 (4) 1 SCA at paragraph 1 per Harms JA it is recorded that the
judge in the court
a
quo
debated the merit of a postponement application by the defendant
because it seemed to the judge that the application was nothing
but a
tactical more to gain time. During the course of the debate the
judge moved outside the ambit of the interlocutory postponement
application into the orbit of the main sphere of the main case
itself. In no uncertain terms the judge told the defendant that he
thought there was little merit in two aspect of the defendant’s
plea. He was later asked to step down. He refused. The defendant’s
appeal to have the refusal set aside and the judge removed failed.
Harms J held that a deadly legal point forcibly made by a judge
on
the substantive merits of the main case itself during the course of
legal argument cannot give rise to an apprehension of bias
in the
eyes of the reasonable, objective and informed litigant in possession
of the correct facts. In the instant the disciplinary
presiding
officer’s remarks were expressed in connection with a medical point
and not a deadly legal point. The medical point
had virtually
nothing to do with the merits of the main case.
[51] The despair of the
applicant’s lawyer is that the applicant’s version would never be
accepted by the 1
st
respondent because, as they say, the 1
st
applicant has already created a perception of bias. They aver that
since he had already disbelieved the applicant’s claim that
he was
so ill that he could not attend and participate in the disciplinary
hearings since the 30
th
March 2005 until the 10
th
Augustus 2005 he would therefore never believe him in the main
disciplinary inquiry still to be held. This perception is
fundamentally
defective. The first respondent was evaluating the
evidence and the argument relating to an application for a
postponement. It
is so that he did not believe the evidence tendered
on behalf of the applicant. He took into account a number of factors
and suspected
that the applicant was apparently not as ill as he
wanted the disciplinary tribunal to believe. This conclusion
prompted him to
dismiss the applicant’s application for the
postponement which series of applications was beginning to manifest a
defined routine
of pattern. On the facts that conclusion could not
be faulted.
[52] It is clear and
obvious that the applicant’s application on the 10
th
Augustus 2005 whereby he called upon the disciplinary presiding
officer to recuse himself from the tribunal chair was triggered by
the dismissal of his third application for a postponement. It
follows therefore that the applicant’s suspicion or perception of
an unfair disciplinary hearing arose during the interlocutory
proceedings. At that interlocutory juncture the disciplinary
tribunal
was not at all concerned with the real merits of the actual
dispute.
Imagine the scenario
where an accused in a criminal case applies for the third
postponement of his criminal trial. Let us suppose
that he gives the
same excuse whenever he makes an application for a postponement. The
public prosecutor opposes the application.
A formal application is
then presented. The accused himself does not testify. His
psychologist testifies on his behalf. Serious
damage is done to the
accused’s case, not on the main merits, but on the subordinate
merits of a preliminary application. In the
end the magistrate
rejects the accused’s version because he is of the opinion that the
accused fakes illness.
[53] Can a reasonable
person in those circumstances come to the convincing conclusion that
he or her would not have a fair and impartial
trial later because the
magistrate does not believe he was ill? What reasonable prospects of
success does the accused in those circumstances
have if he takes the
magistrate to the high court on review application because the
magistrate refuses to recuse himself? In our
courts accused’s
persons frequently loose out during the legal battle called
“trial-within-a-trial”. Implicit in the loss
of the accuse in
such a mini-trial is the inevitable conclusion that the judge does
not believe the accused’s version. Notwithstanding
such an
unfavourable finding, the legal position in our criminal system is
that the judge thereafter carries on with the main trial.
It happens
all the time. In my view the perception of the applicant’s lawyers
are flawed. Needless to say that the applicant’s
second-hand
suspicion of bias based on those flawed perceptions, therefore has no
reasonable foundation.
[54] According to the
applicant since the first respondent elected to oppose the present
application for the postponement or suspension
of the disciplinary
hearing and since the 1
st
respondent has filed an answering affidavit those two legal steps or
adversarial acts serve as final confirmation of the well-grounded
apprehension of bias the applicant perceives. This is the fourth
ground of his apprehension of harm. I am not persuaded. The
applicant
made serious allegations against the 1
st
respondent. Among others, he suggested that the 1
st
respondent was conniving with the 5
th
respondent to violate his fundamental right to a fair and impartial
disciplinary hearing. He sees the whole matter as a dispute
between
him on the one hand and the 1
st
and the 5th respondents on the other hand.
[55] The truth of the
matter is that the real dispute is between the applicant and the 2
nd
respondent. Both the 1
st
respondent and the 5
th
respondent are professional people. They are not on the payroll of
the 2
nd
respondent. No-one can expect an attorney whose professional
integrity an ethical conduct are questioned in this manner to fold
his hands and to do nothing. It must be remembered that the
applicant initiated this whole matter. He invited the respondents to
court. He surely cannot now be alarmed when they come to the party.
The host who invites guests cannot complain and label those
guests
trespassers when they arrive.
[56] The applicant’s
claim of bad motive and unethical collaboration between the 1
st
respondent and the 5
th
respondent is not only unfounded but it is absurd as well. If the
1
st
respondent was unethical and wanted to collaborate with the 5
th
respondent who was equally unethical he would have done so secretly
and not openly as the applicant claims he did. This accusation
too,
holds no water. I cannot accept it. But it is expressly conceded by
the applicant in his founding affidavit that no unethical
conduct can
be levelled against the 5
th
respondent.
The applicant’s reliance on the word “ons” in his judgment as
proof of sinister collaboration between the 1
st
respondent and the 5
th
respondent is a thin argument. So is the argument about the further
particulars. I deem it unnecessary to deal with these grounds
of the
applicant’s suspicion of bias.
[57] The question to be
resolved now is whether the applicant has made out a case for the
immediate intervention by this court midstream
the tribunal process
of a disciplinary inquiry.
It is so that the
disciplinary hearing proper has not yet started. Therefore no
evidence has been led pertaining to the merits.
But so much has been
placed before me concerning the material allegations of facts or the
main reasons for the contemplated review
that I cannot imagine what
else can still be said which has not been said already. The point I
am trying to make is this. The applicant
could as well have brought
an urgent review application if he was serious about such a legal
step. The strategy of piecemeal sudden
attacks on the playground of
litigation is frowned upon by our courts because it often leads to a
proliferation of disputes between
the litigants which could have been
entertained and adjudicated simultaneously. See
SIPHO
MHLAMBI v DIHLABENG LOCAL MUNICIPALITY & ANOTHER
unreported decisional in this court under case number 132/2005 and
MEYER
v SESELE
,
case number 3910/2004 also an unreported decision of this court.
[58] I am inclined to
agree with the contention of counsel for the respondent that if the
applicant was dead serious about such a
review application he could
easily have filed it simultaneously with the present interdict. It
was never done that way. On the
papers no explanation was given why
it wasn’t. There seems to be substance in the respondents’
contention that the omission
was simply another ploy to prolong the
finalization of the disciplinary hearing since the applicant has
nothing to loose but everything
to gain by playing for time. The
applicant is a very senior functionary of the 2
nd
respondent. No doubt he earns a handsome salary. The delay in
finalizing this disciplinary case seriously harms the 2
nd
respondent and is drastically detrimental to the general interests of
the community of Matjhabeng. Such prejudice can only be minimized
if
everyone involved gets serious about the business of putting this
dispute to rest. The 1
st
respondent and the 5
th
respondent are not employees of the 2
nd
respondent. The 2
nd
respondent remunerates them. That too is an extra expense which goes
to waste if they are not efficiently and effectively utilized
for the
purpose they were appointed.
[59] It is stride law
that the applicant can only succeed with this kind of review
application if he can show that the 1
st
respondent’s refusal to recuse himself will cause him serious harm
resulting in a miscarriage of justice - vide
NEWELL
& CRONJE
1985 (4) SA 692
(E). As matters stand now, and I do not see stronger
facts emerging, it is clear that the applicant dismally fails to make
out such
a case. Our courts have always carefully looked at the
reasons advanced in support of such review.
[60] The reasons advanced
by the applicant for the relief are of vital importance. Those
reasons are fully set out in the founding
affidavit and annexures
thereto. They form the foundation of the relief sought. I was at
pains to analize them. Such reasons were
drastically watered down in
the answering affidavit. They could not be salvaged in the replying
affidavit. Therefore the applicant’s
review application, in my
view, will have no solid foundation. Such an application will be an
exercise in futility. It is doomed
to fail as I see things now. It
has no reasonable prospects of success, vide
NEWELL
v CRONJE
supra
.
The applicant cannot succeed unless he proves special reasons for
the extra-ordinary relief he seeks, vide
MOLEFE
v DIHLABENG LOCAL MUNICIPALITY
2003 (4) ALL SA 269
(OPD) per Hancke J and
WELKOM
VILLAGE MANAGEMENT BOARD v LETENO
1958 (1) SA 490
AD per Ogilvie Thompson AJA.
[61] There were no
special reasons advanced by the applicant. There was nothing special
about those reasons that he had advanced.
They were ordinary
reasons. Therefore, in the absence of special reasons, I cannot
depart from the general principle which guides
our courts and
precludes them from readily interfering with disciplinary proceedings
in a disciplinary tribunal midstream. The power
to intervene
midstream is sparingly used. On analysis I am not moved to dispense
with that salient principle.
[62] Seeing that the
applicant has failed to prove the second requisite of an interim
interdict, whereas the law required him to prove
all the four
requisites, it becomes unnecessary to deal with the remaining two
requisites. This is where I sign off. This is the
station of the
interim interdict where I get off.
On the proven facts I
have come to the conclusion: First that the 1
st
respondent was not unduly sensitive to the application for his
recusal and that he did not regard such an application as a personal
affront which clouded his judgment. Secondly, I could detect no
justification for the applicant’s apprehension that the manner
in
which the 1
st
respondent presided over the disciplinary proceedings of the tribunal
manifested no open-mindedness, impartiality or fairness to
a
reasonable litigant. Thirdly the perceived suspicion that the
presiding tribunal officer might possibly be biased was not
reasonable
in the circumstances. Fourthly, the 1
st
respondent did not misdirect himself in refusing to recuse himself.
Finally, the question whether a reasonable, objective and informed
person would on the facts apprehend that the presiding tribunal
officer will not bring an impartial mind to bear on the adjudication
of must therefore be answered in the negative.
[63] As regards the 5
th
respondent the applicant dismally failed to make out any arguable
case. He sought the permanent removal of the 5
th
respondent from his appointed position as a tribunal prosecutor. He,
therefore, sought a final relief. To the extent that he sought
a
final interdict against the 5
th
respondent the dispute of facts have to be decided on the principle
that the version of the 5
th
respondent must be accepted as the truth and be preferred to that of
the applicant, vide
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(AD). There is no merit for the applicant’s
complaint against the participation of the 5
th
respondent in the disciplinary tribunal concerned. The applicant
hopelessly failed to show in what way the participation of the
5ht
respondent has or could infringe his right to a fair and impartial
disciplinary trial. He by-passed the 2
nd
respondent along the way. The procedure he followed was lamentably
defective. The grounds for his application for the dismissal
or
removal of the 5
th
respondent were
frivolae
causae,
that
is they were legally insufficient to justify the final relief he
sought - vide
SOUTH
AFRCIAN MOTOR ACCEPTANCE CORPORATION v OBERHOLZER
1974 (4) SA 808
(TPD) AT 812 C. I would therefore also refuse to
grant the relief sought against the 5
th
respondent.
[64] The costs must
follow success in this matter. I am inclined to think that there was
nothing untoward about the five respondents
engaging the services of
two counsels. These were urgent proceedings. There was a lot at
stake for the respondents, especially
the 2
nd
respondent, and of course the 5
th
respondent as well as the 1
st
respondent. This was not a simple and straight forward matter. This
was not a case where one respondent had appointed two counsels,
one
senior and another junior. Here we have five respondents sharing two
counsels. In principle there could have been more lawyers
involved.
For this reason I am of the opinion that fairness demands that I
direct the applicant to pay the costs of this case including
the
costs occasioned by the employment of two counsels who appeared for
the respondents.
[65] On account of the
view I took of the matter I deliberately decided to deal with the
substantive merits of the case and to leave
out the points raised
in
limine.
If any party requires me to give written reasons in respect of the
points raised
in
limine
for what it may worth I shall gladly oblige. Such a request must be
delivered to the registrar in writing within 14 calendar days
of this
judgment.
[66] Accordingly I make
the following order:
The application is
dismissed
in
toto
.
The applicant is
directed to pay the cost of the application.
The costs so payable
shall include the costs occasioned by the employment of two
counsels who appeared for the respondents.
______________
M.H. RAMPAI, J
On
behalf of the applicant: Adv. J.P. Daffue
Instructed
by:
Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. A.J.R. van Rhyn SC
with
him:
Adv.
W. J. Edeling
Instructed
by:
Rosendorff
& Reitz Barry
BLOEMFONTEIN
/em