Brief Summary

Constitutional Law — Recusal application — Application for recusal of judges of the Constitutional Court — Fourth respondent alleging reasonable apprehension of bias against members of the Court — Court finding no objective grounds for recusal — Application dismissed. The fourth respondent, Dr Louis Luyt, sought the recusal of four judges of the Constitutional Court, claiming bias due to adverse credibility findings made against the President in prior proceedings. The Court unanimously held that the recusal application was without merit, as the applicant failed to establish reasonable grounds for the judges' recusal, and thus dismissed the application.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for the recusal of members of the Constitutional Court in pending appeal proceedings. The recusal application was brought shortly before the hearing of an appeal arising from High Court review proceedings in which the President’s decision to appoint a commission of inquiry into aspects of the South African Rugby Football Union (SARFU) had been reviewed and set aside.

The parties in the recusal application were the President of the Republic of South Africa, the Minister of Sport and Recreation, and the Director-General of the Department of Sport and Recreation (as appellants in the main appeal), opposed by SARFU, two rugby unions, and Dr Louis Luyt (the fourth respondent in the appeal and the applicant for recusal). The recusal application was directed at five members of the Court (ultimately pursued against four), while also alleging that all members of the Court were biased.

The procedural history relevant to the recusal application was that De Villiers J in the Transvaal High Court had reviewed and set aside the President’s decision and proclamation made under the Commissions Act. In that judgment, the High Court made credibility findings adverse to the President, the Minister, and the Director-General, which the Constitutional Court noted were relevant to the recusal application only insofar as they formed part of the context for the applicant’s apprehension of bias. The appellants initially sought leave to appeal to the Supreme Court of Appeal, but later noted an appeal to the Constitutional Court and sought condonation for late filing; condonation was granted by the Constitutional Court in earlier proceedings.

The general subject-matter of the recusal dispute was whether, in light of alleged political, professional, and personal connections (and certain procedural rulings in earlier interlocutory proceedings), a reasonable, objective, and informed person would reasonably apprehend that the implicated justices would not bring an impartial mind to bear on the appeal.

2. Material Facts

It was common cause that the recusal application was lodged on 29 April 1999, shortly before the appeal was due to be heard on 4 May 1999, after the Court and counsel had already undertaken substantial preparation. The appeal record was extensive (over 6500 pages) and written argument substantial (close to 1000 pages). The Court sat en banc, with a quorum requirement of eight; if five judges recused themselves, the quorum would have been broken and the appeal could not proceed as scheduled.

The Court treated as material the fact that, prior to the launch of the application, the fourth respondent’s attorney addressed correspondence to the President of the Constitutional Court requesting that each member of the Court answer a series of questions (described by the Court as “interrogatories”) about political affiliations, participation in constitutional negotiations, relationships and social contact with the President, prior legal representation, alleged animosity towards the attorney, and comments about the High Court judge. The Court also treated as material that the judges declined to answer the interrogatories as framed, but later clarified particular factual matters that were specifically put.

A key set of facts became undisputed during argument because counsel for the fourth respondent accepted, “unhesitatingly,” the correctness of a statement read in open court (“the Justices’ statement”) addressing alleged factual inaccuracies and providing limited supplementary information. On those accepted facts, the following were material.

As to political affiliation, it was accepted that certain justices (including Langa DP, Mokgoro J, O’Regan J, Sachs J, and Yacoob J) had previously been members of the African National Congress (ANC) prior to appointment, that they severed ties with the ANC before or immediately upon appointment, and that no member of the Court was a member of any political party at the time.

As to the allegations directed at Chaskalson P, it was accepted that he had appeared as a junior advocate in the defence team at the Rivonia Trial in 1963–1964, but that he was not briefed by President Mandela or his firm in his career at the Bar and last appeared for President Mandela or Mrs Mandela over 25 years earlier. It was accepted that President Mandela attended the religious ceremony at Chaskalson P’s son’s wedding on 23 November 1997, that the President was one of more than 300 invited guests, attended the ceremony but not the reception, and was not “guest of honour.” It was accepted that the relationship between Chaskalson P and the President was cordial and largely formal, that they were not social friends, and that social contact was limited, including one dinner at the President’s home some years earlier in connection with a mutual friend.

As to allegations directed at Langa DP, it was accepted that he had never attended a private dinner at the President’s home; the remaining relied-upon facts were confined to his prior involvement with the ANC in the transition period.

As to allegations directed at Sachs J, it was accepted that he had never dined privately at the President’s home; the remaining allegations relied on his past ANC leadership roles and further contentions advanced in a supplementary affidavit.

As to allegations directed at Yacoob J, the allegations were similarly based on prior ANC association and involvement in constitutional negotiations and political trials, together with an asserted failure of disclosure.

As to Kriegler J, the Court recorded that the fourth respondent withdrew the recusal application during argument; the Court treated that withdrawal as demonstrating that the allegations against him lacked substance, and accordingly did not determine them on the merits.

Certain allegations made against all members of the Court were treated as falling away or being abandoned during argument once the legal and factual context was clarified. In particular, the fourth respondent’s counsel abandoned the contention that it was improper or unusual for the Constitutional Court to hear an appeal involving factual disputes once it was explained that the Court is obliged to determine factual disputes where they relate to constitutional issues.

3. Legal Issues

The central legal questions were whether the recusal application raised a constitutional matter within the meaning of section 167 of the Constitution, and whether, applying the correct objective test for apprehended bias, the fourth respondent had established grounds requiring recusal of any of the judges concerned (and, given the breadth of allegations, whether any member of the Court was obliged to recuse).

The dispute concerned primarily the application of law to fact. It required the Court to identify the governing recusal test in South African law as informed by constitutional guarantees of a fair hearing before an independent and impartial tribunal, and then to evaluate whether the (correct) facts, considered cumulatively, could support a reasonable apprehension of bias in the mind of a reasonable, objective, and informed person.

A further procedural issue arose as to who should decide the recusal application in the context of the Constitutional Court: whether each judge whose recusal was sought should decide individually, or whether the Court should decide collectively. The Court treated this as connected to its constitutional obligations and institutional role, particularly because there is no appeal from a Constitutional Court decision and because an incorrect refusal to recuse could contaminate the Court’s ultimate decision.

4. Court’s Reasoning

The Court grounded its approach in constitutional provisions securing the right to a fair public hearing before an independent and impartial tribunal (section 34), the duty of courts to apply the law impartially and without fear, favour, or prejudice (section 165(2)), and the judicial oath in Schedule 2. It accepted that the common-law doctrine of recusal is part of the rules of natural justice, but held that the doctrine must be understood and applied consistently with the Constitution and the Bill of Rights (including sections 8(1) and 39(2)).

On jurisdiction, the Court reasoned that if a judge sits when disqualified by a reasonable apprehension of bias, this would be inconsistent with section 34 and breach section 165(2) and the oath of office. For that reason, the recusal application was held to raise a constitutional matter, and the Court held it had a duty to consider the issue and ensure that any disqualified member did not participate.

On procedure, the Court accepted that judges have jurisdiction to decide applications for their own recusal. However, because the Constitutional Court is the ultimate court in constitutional matters and its decisions are not subject to appeal in the ordinary way, the Court emphasised that an incorrect refusal to recuse by one judge could taint the validity of proceedings, potentially requiring other members not to sit with that judge. Against that background, and with the agreement of counsel, the Court adopted the approach of hearing the applications simultaneously before the full bench, with judges considering the matter both individually and collectively.

On the substantive test, the Court affirmed that the test for recusal based on perceived bias is objective, with the onus on the applicant. It preferred the terminology of a reasonable apprehension of bias, rather than “suspicion,” but treated the concepts as equivalent in substance as used in authority. The Court described the applicable question as whether a reasonable, objective, and informed person, on the correct facts, would reasonably apprehend that the judge would not bring an impartial mind to bear, meaning a mind open to persuasion by the evidence and argument.

The Court stressed two built-in features of the test. First, there is a presumption of judicial impartiality, rooted in the nature of the office, the judicial oath, and training and experience; the threshold for perceived bias is therefore high and requires cogent grounds. Second, the Court acknowledged that judges inevitably bring life experience and perspectives to adjudication; impartiality does not require a “neutral cipher,” but does require an ability to decide according to law and evidence rather than irrelevant predispositions.

The Court also rejected the submission that judges of a highest court should more readily recuse themselves merely to set an example. It emphasised the countervailing duty to sit in cases where not disqualified, particularly given the Constitutional Court’s constitutional design (its size, quorum, representativity objectives, and the institutional undesirability of strategic or opportunistic recusal applications). The Court cautioned that justice being seen to be done cannot be used to encourage litigants to seek disqualification in the hope of obtaining a more favourable bench.

Applying these principles, the Court considered the applicant’s “cumulative basket” approach, but held that only correct facts capable of contributing to a reasonable apprehension could be placed in that basket. It then assessed the principal categories of allegations.

The Court rejected allegations directed at the Court as a whole suggesting that interlocutory decisions (including the decision to hear the appeal, the timing of the hearing, filing dates, and costs orders) created an appearance of partiality favouring the President. It found that these allegations were founded on misunderstandings or incorrect propositions about the Court’s jurisdiction and procedures. It also pointed out that reasons had been furnished in the earlier condonation judgment for the relevant orders and that the fourth respondent’s counsel did not demonstrate any error in that reasoning. In addition, an allegation that the appeal was heard on an “expedited” basis to suit the President was rejected on the basis that the hearing date was in the ordinary course of the Court’s roll.

The Court rejected the contention that the Court’s fixing of filing deadlines demonstrated partiality, noting that counsel for the fourth respondent did not object at the time the dates were fixed, and that the difficulty alleged later was not made known when directions were considered. Similarly, the costs-related complaints were rejected as unreasonable, especially where the earlier costs order had been explained in the condonation judgment and where the order calling upon the attorney to show cause regarding a de bonis propriis costs order was linked to the lateness of the postponement request and the fairness of potentially not visiting the wasted costs on the litigants.

The Court also rejected as irrelevant to recusal the broader political context relied upon by the fourth respondent, including the President’s public stature, the political significance of credibility findings, and public criticism of the High Court judge. The Court treated these factors as incapable, without more, of grounding a reasonable apprehension of bias by the Constitutional Court.

A central aspect of the applicant’s argument was that judges would be reluctant to make adverse credibility findings against a President who had appointed them, and that adverse findings could provoke political consequences. The Court rejected this reasoning as premised on a fallacious understanding of judicial appointments. It explained the constitutional and interim constitutional procedures for appointing members of the Constitutional Court, including the role of the Cabinet, consultation requirements, and the Judicial Service Commission shortlist mechanism, and held that the suggestion of personal gratitude or improper influence was unfounded.

The Court then addressed prior political associations, holding that political activity or affiliation before appointment to the bench is not uncommon and does not in itself disqualify a judge. In South Africa’s constitutional context, the Court reasoned that support for constitutional values and opposition to the “old order” would predictably have been relevant to many candidates’ public lives, and it would be ironic if this alone rendered them ineligible. The Court articulated the principle that a reasonable apprehension of bias cannot be based on prior political associations unless the subject matter of the litigation arises from those associations or activities, which was not alleged in this case.

Turning to the individual judges, the Court held that the response by Chaskalson P to the attorney’s interrogatory letter did not provide a basis for apprehended bias and that no reasonable litigant with legal advice would infer bias from that response. On alleged past advocate-client relationships, the Court held that prior representation decades earlier, without personal knowledge relevant to the issues and long concluded, was not a basis for recusal. On alleged personal relationships, the Court accepted the limited and largely formal contact as described in the Justices’ statement and held that it did not demonstrate a close relationship capable of grounding apprehended bias. It also rejected as lacking substance the contention that the appearance of Chaskalson P’s son as counsel for the appellants demonstrated close family ties with the President; it noted that family members appearing before judges has been accepted practice and was not presented as an independent ground of recusal in argument. The Court further held that there was no obligation on Chaskalson P to disclose irrelevant information, and that non-disclosure of irrelevant facts cannot itself create a reasonable apprehension of bias. The Court treated reliance on a former judge’s opinion expressed in a book as irrelevant.

For Langa DP and Yacoob J, the Court treated the remaining allegations as turning on prior ANC membership and participation in transitional structures, which were matters of public record and not a basis for recusal in litigation unrelated to those activities. For Sachs J, the Court similarly held that prior ANC leadership roles did not ground apprehended bias given severance of party ties upon appointment, and it dismissed as particularly inappropriate the reliance on injuries suffered by Sachs J in the anti-apartheid struggle as a basis for alleging bias. It further regarded the supplementary allegations about an internal ANC commission of inquiry as of no relevance to bias in the present appeal, noting that the issue had been canvassed by the Judicial Service Commission in the appointment process.

Finally, because the application against Kriegler J was withdrawn, the Court considered it unnecessary to determine the allegations against him and recorded only that the withdrawal demonstrated lack of substance.

5. Outcome and Relief

The Constitutional Court unanimously dismissed the application for the recusal of the judges concerned. It held that the recusal application was a constitutional matter within section 167 of the Constitution and that the applicant failed to establish, objectively, reasonable grounds for recusal.

Each of the four judges against whom recusal was pursued agreed with the conclusion as it applied to them and declined to recuse. The application’s dismissal meant the appeal could proceed without the quorum difficulty that would otherwise have arisen.

The Court reserved the issue of the wasted costs occasioned by the recusal application for determination in the judgment on the merits of the appeal.

Cases Cited

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1998] ZACC 21; 1999 (2) SA 14 (CC); 1999 (2) BCLR 175 (CC).

Council of Review, South African Defence Force, and Others v Mönnig and Others 1992 (3) SA 482 (A).

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A).

BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another [1992] ZASCA 85; 1992 (3) SA 673 (A).

R v Milne and Erleigh 1951 (1) SA 1 (A).

R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [1999] 1 All ER 577 (HL); [1999] 2 W.L.R. 272.

Reg v Gough [1993] UKHL 1; [1993] AC 646.

Committee for Justice and Liberty et al v National Energy Board (1976) 68 DLR (3d) 716.

R. v. S. (R.D.) (1997) 118 CCC (3d) 353.

Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248.

Re J.R.L.: Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342.

Laird v Tatum [1972] USSC 193; 409 US 824 (1972).

Commonwealth of Pennsylvania and Raymond Williams et al v Local Union 542, International Union of Operating Engineers, et al 388 F. Supp. 155 (1974).

S v Collier 1995 (2) SACR 648 (C).

S v Bam 1972 (4) SA 41 (E).

S v Ndou 1971 (1) SA 668 (A).

S v Mandela 1972 (3) SA 231 (A).

S v Mandela 1974 (4) SA 878 (A).

S v Radebe 1973 (1) SA 796 (A).

R v T 1953 (2) SA 479 (A).

Beyers v Pretoria Balieraad 1966 (2) SA 593 (AD).

Society of Advocates of South Africa (Witwatersrand Division) v Cigler 1976 (4) SA 350 (T).

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).

Premier, Mpumalanga, and Another v Executive Committee, Association of State Aided Schools, Eastern Transvaal [1998] ZACC 20; 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC).

Pretoria City Council v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996, sections 1, 8(1), 34, 35(3), 39(2), 165(2), 167(2), 167(3), 167(4), 167(5), 174(2), 174(4), 175(1), and Schedule 2 item 6.

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), sections 97(2)(a), 99(3), 99(4), 99(5), 105(1), 233(3), and 233(4).

Commissions Act 8 of 1947.

Rules of Court Cited

Constitutional Court Rule 15(2).

Held

The Court held that an application for recusal of Constitutional Court judges engages the constitutional guarantee of a fair hearing before an independent and impartial tribunal and is therefore a constitutional matter within the meaning of section 167 of the Constitution, falling within the Court’s jurisdiction.

The Court held that the governing test for recusal on the basis of perceived bias is an objective test resting on the applicant’s onus: whether a reasonable, objective, and informed person, on the correct facts, would reasonably apprehend that the judge would not bring an impartial mind to bear on the adjudication.

The Court held that the allegations relied upon by the applicant—whether concerning interlocutory rulings, the timing and costs of procedural directions, the political context, prior political associations, historic professional contact, or limited formal social contact—did not, individually or cumulatively, establish a reasonable apprehension of bias on the correct facts. The recusal application was therefore dismissed, and costs were reserved.

LEGAL PRINCIPLES

An application for recusal implicates the constitutional right to a fair hearing before an independent and impartial tribunal (section 34), and a judge who sits while disqualified by a reasonable apprehension of bias acts inconsistently with constitutional obligations, including section 165(2) and the judicial oath.

The test for recusal based on perceived bias is objective and requires the applicant to establish that a reasonable, objective, and informed person, viewing the matter realistically and practically and on the correct facts, would reasonably apprehend that the judge would not bring an impartial mind to bear.

The test incorporates a presumption that judges are impartial by virtue of their office, oath, training, and experience, and recognises that judges inevitably possess perspectives formed by life experience; impartiality requires openness to persuasion by evidence and argument, not the absence of all predispositions.

Judges have a duty to recuse where disqualified, but also a duty to sit where not disqualified. Courts should not accede too readily to allegations of appearance of bias in a manner that would encourage litigants to attempt to shape the composition of the bench.

Prior political associations or activities before judicial appointment do not, without more, ground a reasonable apprehension of bias, particularly where ties have been severed upon appointment, unless the subject matter of the litigation arises from those associations or activities. Non-disclosure of facts that are not reasonably relevant to recusal cannot itself found a reasonable apprehension of bias.

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