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
>>
2024
>>
[2024] ZAFSHC 368
|
|
Van Den Berg v Land and Agricultural Development Bank of South Africa and Others (1955/2016) [2024] ZAFSHC 368 (8 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
NOT
REPORTABLE
CASE
NO.: 1955/2016
BAREND
JACOBUS VAN DEN BERG
Applicant
[1]
and
THE
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
First
Respondent
SUIDWES
LANDBOU (PTY) LIMITED
Second
Respondent
LORRAINE
MARLENE VAN DEN BERG
Third
Respondent
BAREND
JACOBUS VAN DEN BERG N.O.
Fourth
Respondent
LORRAINE
MARLENE VAN DEN
BERG
N.O.
Fifth
Respondent
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS
N.O
.
Si
xt
h
Respondent
THE
REGISTRAR
OF DEEDS
Seventh
Respondent
IN
RE:
CASE
NO:1240/2020
BAREND
JACOBUS VAN DEN BERG
First
Applicant
LORRAINE
MARLENE
VAN
DEN
BERG
Second
Applicant
HENDRIK
STEPHANUS LODEWICUS
DU
PLESS
I
S
N
.
O.
Third
Appli
c
ant
and
SUIDWES
LANDBOU (PTY) LIMITED
First
Respondent
THE
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
Second
Applicant
COREEN
STEYN t/a STEYN ATTORNEYS
Third
Respondent
ET
IN
RE:
CASE
NO:
1955/2016
THE
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
First
Plaintiff
SUIDWES
LANDBOU (PTY) LIMITED
Second
Plaintiff
and
BAREND
JACOBUS VAN DEN BERG
First
Defendant
LORRAINE
MARLENE VAN DEN BERG
Second
Defendant
BAREND
JACOBUS VAN DEN BERG N.O
.
Third
Defendant
LORRAINE
MARLENE VAN DEN BERG N
.
O
.
Fourth
Defendant
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS
N.O.
Fifth
Defendant
REGISTRAR
OF DEEDS
,
BLOEMFONTEIN
Sixth
Defendant
ET
IN
RE:
CASE
NO
:
765/2019
SUIDWES
LANDBOU (PTY) LIMITED
First
Plaintiff
THE
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
Second
Plaintiff
And
COREEN
STEYN t/a STEYN ATTORNEYS
First
Defendant
BAREND
JACOBUS VAN DEN BERG N.O.
Second
Defendant
LORRAINE
MARLENE
VAN
DEN
BERG
N.O.
Third
Defendant
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS N.O.
Fourth
Defendant
Coram:
M Opperman
J
Heard
:
9 May 2024
Order:
8 November 2024
.
This judgment
was handed down electronically by circulation to the parties
'
legal
representatives via email and release to SAFLII on 8 November 2024
.
The date and
time of hand-down is deemed to be 15h00 on 8 November 2024
.
The reasons
for judgment were delivered on 11 November 2024
.
Summary:
Application
for recusal
ORDER
I.
I accordingly
recuse myself and hereby withdraw from the hearing of the matter held
under case number 1955
/
2016
and as per the issues separated in terms of Rule 33
(
4
)
of the Uniform
Rules of Court
.
The matter
will continue before another judge
.
2.
No order is
made as to costs
.
3.
Reasons for
the judgment may be uplifted from th
e
Registrar of
the Court on Monday 11 November 2024 at 15h00
.
JUDGMENT
Opperman
J
[1]
The
application
that lies for adjudication is one of recusal. The words of Koen Jin
the
matter of
S
v
Zuma and Another
[2]
sets
the tone:
'
[22]
I am enjoined by my oath of office to ensure
,
inter a/ia
,
that Mr
Zuma receives a
constitutionally
fair trial
,
to
regulate the management
of
the trial
,
to
preserve
the integrity of the trial
,
and to ensure
the proper administration of justice
.
The issue
whether an accused receives a constitutionally fair trial as
guaranteed in terms of the Constitution
,
is
an
enquiry that is paramount and something that should be ever present
to
a
judge's mind during a trial. The
integrity
of any trial
must be beyond any
criticism
or reproach
.
It
is
my task to
ensure that the
current
trial also
meets that expectation
.
A
reasonable
perception of fairness
is
all-pervasive
.'
[2]
Although it
appears that actual bias is alleged
,
I have no
hesitation to reject any suggestion of this on my
part from the
onset. I have absolutely
no gain in the
future fortunes or otherwise of Mr van den Bergh
(applicant)
or any of the
litigants
.
Mr
Du Plessis
(the
attorney),
representing the applicant
,
had at all
times been courteous towards the court and there was not any instance
that needed for me to extent but the same towards
him
.
There were
occasions that situations presented during the hearing and the court
had to rule on issues and maintain control of the
trial but I never
got the
impression
that bias was
perceived. Reading of the record as a whole and all the papers and
judgments
in
the matter
prove the opposite of real bias beyond doubt.
[3]
On
8
May
2024
the
Supreme
Court
of
Appeal
reiterated
the
legal
principles
when
an
application
for
recusal
lies for adjudication
in
Maritz
v
S:
[3]
'
“
[6]
On
29
November
2021
,
the appellant
brought an
application
for
the
recusa
l
of
Naidoo
J on
the
basis
that she
was
biased
and
that
he
had
a
reasonable
apprehension
that
he
will
not
be
accorded
a fair
trial.
The appellant's recusal application was based
on
the
following
allegations
and
complaints
against
Naidoo
J
:
(a)
The judge
irrationally
and
unilaterally
revoked his bail
;
(b)
The
judge
is
a
Gender
Based
Violence
Activist (GBV Activist);
(c)
The judge
requested a
victim
impact
report before
the
revocation
of
the
appellant
'
s
bail
;
and
(d)
Prior to
the hearing
of
the variation
of the
appellant
'
s
bail conditions
,
the judge
spoke to her colleague
,
Daniso J about
the case
.
The
high court dismissed the application for recusal. Dissatisfied with
the high
court
order
,
the appellant
petitioned
this
Court and
leave to appeal
was
granted to
this Court
on
8
June 2022
.
[7]
A
litigant
who finds it necessary
to
apply
for the recusal of a judicial officer has
an unenviable
task and the propriety of his motive should not be lightly
questioned
.
His or her
application must be
dealt with
in accordance
with
the
prevailing
legal principles
.
The
legal principles
[8]
The law
relating to recusal has become settled
.
The right to a
fair trial is entrenched in
our
Constitution
.
Section
35(3)
of the
Constitution
deals with
criminal proceedings and provides
that
'[e]very
accused person has a right
to
a fair trial
'.
Section 34,
which addresses the right of access to courts in the general sense
,
states as
follows
:
'
Everyone
has a right to
have any dispute that can be resolved by the application
of
law decided in
a fair public hearing before a court or
,
where
appropriate
,
another
independent
and
impartial
tribunal or
forum.
'
[9]
Section
165(2)
of the
Constitution
,
dealing with
the
judicial
authority
re-iterates
the
courts
'
independence
and
requires
courts to apply the
law
'
impart
i
ally
and
without
fear
,
favour
and
prejudice
',
and the oath
of office prescribed by Schedule 2 of the Constitution requires each
judge
to
swear that he or she
'
will
uphold and protect the
Constitution
...
and will
administer justice to all persons alike without fear
,
favour
or
prejudice
,
in
accordance
with
the
Constitution
and
the
law
'.
[10]
Judicial
officers
are
required
to perform
their
adjudicative
functions
independently
and impartially
,
without bias
or prejudice
in
favour of any
party
.
The
concept of
impartiality
of the
judiciary
refers to the
state of mind or attitude of judicial officers in
relation
to the issues
and
parties
in a particular case
,
and to the
fact that the courts must apply the law
'
without
fear
or
prejudice'
.
An
important
consequence
of
impartiality is that
a judicial
officer
must recuse
himself or
herself
if there is
a
reasonable apprehension
that he or she
is biased
.
[11]
In
President
of
the
Republic
of
South
Africa
and
Others
v
South
African
Rugby Football Union
and
Others
-
Judgment
on
recusal
application
(SARFU)
,
the
Const
i
tutional
Court
held
that
the
test for bias was whether
'
a
reasonable
,
objective
and informed person would
,
on
the
correct
facts
,
reasonably
apprehend
that
the
judicial
officer has not brought
or
will
not bring an
impartial
mind
to bear on the
adjudication
of
the
case..
.'
.
Although
it
is the apprehension of bias and not actual bias which is
prohibited
the
test
for
bias is difficult to
satisfy.
This
is
because,
first,
the
starting point
is
that judicial officers
are
presumed
to be
impartial
and,
second, judicial officers are
human
.
It
is appropriate for judicial
officers
to
bring
their
own
life experiences into the judicial process.
The
SARFU
judgment
reaffirmed that we must assume the independence and impartiality
of
judicial officers based on the recognition of
their
legal
training and experience
.'
(Accentuation
added)
[4]
[4]
Remarks that I
made in a previous judgment in this case against the applicant were
and are of some concern to me in that it might
have been of such a
nature that perceived bias could have been activated
.
This
is
what
I had to say
:
'(2]
A
learned
colleague
quoted
recently
in
a
case
akin
to
this
matter
:
"When
people get desperate,
they
get very creative".
In the
case of
Belford
v Belford
1980
(2)
SA
843
(C)
at
844
that
was
relied
upon
by
the
Applicants,
Van
den
Heever
lamented that:
In
the present
,
a
different
,
context I
would stress what I conceive to be the moral duty of lawyers: to
dissuade their clients
from
indulging in
petty bickering to the good of no one save the lawyers' finances. One
realises of course that clients do not always
heed their lawyers'
advice in this regard
;
...
The
entire matter should be settled and should not be difficult to settle
if both parties decide not
to
be greedy and selfish
,
and bear
in mind that the prime aim should never be merely to hurt the
opposition.
The
case here is an estimated seven-year-old debt of millions of Rands
that is outstanding and that the debtor
does
not honour.'
[5]
(Accentuation
added)
[5]
The outcome of
the case must be in accordance with legal principles and
constitutionally fair. The
issue,
specifically
so, is thus entirely whether there is a reasonable apprehension of
bias arising from findings and views essentially
previously expressed
by me. I have no hesitation to recuse myself from the proceedings if
the interest of justice so demand
.
I am of the
view that my
recusal
will indeed
serve justice but for different reasons than those relied upon by the
applicant. It
is the remarks I made above that will in the end result in me
recusing myself from the proceedings
.
[6]
The words of
Mr Maphinda in his affidavit that I refer to hereunder that stated at
paragraph
81
of
his
statement
add
to
the
legal
principles
to
be followed:
'The
first and second respondents submit that
i
n
the circumstances Judge Opperman
,
with respect
,
has a duty to
preside and should not accede to unmeritorious allegations of bias
levelled against her
.'
[7]
This case is
of such deep concern to me that I had to do bruta
l
introspection
.
I had to study
hundreds of pages of ev
i
dence
,
transcribed
records and judgments
.
The
delay
in bringing this
appl
i
cation
and
allegations that
were made
,
among others
,
by the
attorney for the applicant and one Ms Leonard of their personal
experience and feelings
,
made it
impossible to respond to
.
I
cannot
remember a Ms Leonard and I cannot account for their feelings. But as
I indicated I might have been the instigator of the
perceived bias.
[8]
The
first and second respondents gave an extensive depiction of the
litigatory history of the case
i
n
the answering affidavit of one Phumelele Maphinda
,
Legal
Advisor
:
Recoveries
and Insolvency employed by the first respondent.
[6]
I will not burden this judgment with it since it has also been
extensively dealt with in other judgments of mine.
[9]
From a reading
of
the
application the applicant mainly bases his
case on a
complaint of differential and unfair treatment, illegal interventions
during cross examination and the issue of his representation
of the
defendants and him possibly having to testify
.
[10]
It
is
imperative
that this judgment be read with the transcribed record of all the
proceedings
through the
many
years
,
the numerous
judgments
I
wrote on
issues
in
the
case
and
the
judgments
of the
Supreme
Court
of Appeal
as
well as the Constitutional
Court
.
It
might even be conducive to justice if the reader of the judgment
listens to the recordings
.
I never raised
my voiced to the attorney or made sarcastic remarks
;
this simply is
not true
.
This
shows that the allegations by the applicant as supported by his
attorney is incorrect as a whole
.
[11]
It
is
not
only
the
presiding
officer
in
this
case
that
i
s
accused
of
questionable behaviour. An incident of extreme accusations against
the legal representatives for the first and second respondents
also
occurred
.
This
is depicted in the letters that form part of the application in that
they were accused of having singly contacted myself without
the
attorney for the applicant being present. These serious accusations
were devoid of the truth
.
[7]
Tempers
flared and much frustration was experienced in this case
;
the
tightrope to have been walked that was caused by the predicament of
the attorney for the applicant complicated the case
.
The
court had to call counsel for the first and second respondents to
order and severely admonish h
i
m
when he made an unbecoming remark
.
At
paragraph 200 the first and second respondents
'
witness
Mr Maphinda pointed out that counsel was accused by the attorney for
the applicant of the following
:
'
senior
counsel for the plaintiffs going berserk eyes bulging and red-faced
,
losing
complete control of the
management of his case in reaction to Mr Du Plessis
'
proposal for a
date after the court recess which suited the defendant going berserk
and
,
aggressively
turned around
uttering the word
'
bullshit'
so loudly that the presiding
judge
indicated that she heard
i
t'.
The description of senior counsel for the first and second
respondents by the applicant is wrong and exaggerated. The court
admonished counsel and he apologised.
[12]
As
pointed
out
above
;
from
the
onset
the
case
presented
with
challenges
.
The conduct of
the attorney for the applicant caused many issues and the court had
to maintain order and control in unusual situations
.
The attorney
clearly did not take kindly to the admon
i
shments
of the court to maintain control of the trial and ensure that the
administration of justice is served
;
hence the
allegations in this application
.
a.
The
attorney for the applicant is a party to the litigation
.
Counsel
for the first and second respondents were often frustrated and
sometimes immensely so by the fact that the state of affairs
caused
difficulties in the case. The record shows that there were numerous
objections that the attorney for the applicant testified
from the bar
and outside the papers filed in evidence
.
The
attorney for the applicant admitted on record that this poses an
issue and that he was concerned about it from the beginning.
[8]
He
stated that he is in the situation because
:
'
But
the question is still -
the
issue is still beggars cannot be choosers
.
We-we
would
have
loved to have a team like this
,
M
'
Lady
.
9
I would have given my front teeth for that. But-and on the other
hand
,
M
'
Lady.
[9]
I am also in a situation that I cannot just drop my
-
my trustees
-
co-trustees
.
The
attorney for the applicant conceded that the concerns of the court
were valid and considered
and did obtain
senior council's advice on the issue that he may have a conflict of
interest being a litigant and the legal representative
.
As by his own
admission the attorney was concerned about the state of affairs
.
He appreciated that
there might be a conflict of interest. The attorney returned to court
on the issue and he intimated to the court
that provided that he does
not testify as to the merits of the case
;
no
conflict of interest
should
exist.
The
court accepted the
professional appropriateness and bona tides of the decision
of the
attorney and the trial continued
.
b.
Another
concern raised by counsel for the first and second respondents was
,
that
as a trustee of the Hermanusdam Trust (the trust)
,
the
attorney might be compelled to testify in the case to protect the
interest of
his
clients
.
The
issue
was
never
raised
by
the
court
but
by
counsel
for
the
first
and
second
respondents and in the opening statement already.
[10]
Concern
of the court was the procedural awkwardness in that there would not
be anybody to lead the evidence of the witness and the
novelty of the
issue
.
It
will also cause severe
detriment
to the defendants if their legal representative might be ruled as a
witness without credibility
.
There
was a real apprehension that an unfair trial
might
be declared on appeal and all the litigants and the administration of
justice be prejudiced. This concern raised was labelled
as sarcasm by
the applicant but
it
was
noted in a later judgment also and was real. Counsel for the first
and second respondents stated the true reality in their heads
of
argument that:
[11]
'
57
.
Mr van den
Berg was not a party to the consolidation application that served
before Judge Opperman on 10
December 2020. The applicants in the consolidation application were
the trustees of the Hermanusdam
Trust.
58.
Accordingly
,
Mr van den
Berg cannot possibly have formed a reasonable apprehension that Judge
Opperman would be biased against him based on what
had transpired at
the hearing of the consolidation application on that day.
59.
Judge
Opperman's concerns for what Mr Du Plessis's dual role
,
as a party
to
the litigation
and as
attorney
for
the
other
defendants
,
may mean for
the
other
defendants was justified because:
59.1
The annual
financial statements of the Hermanusdam Trust for the financial year
ended 28 February
2015 were
discovered
by the
defendants,
produced
and handed in
as evidence in terms of uniform rule 35(10)
.
It
is
contained in
Exhibit "C
";
59.2
It is recorded
in
the
aforesaid annual financial statements that such annual financial
statements were
approved
by the
trustees of the Hermanusdam Trust
;
59.3
On face value, the
annual financial statements for the financial year ended 28 February
2015 demonstrate prima facie and justify
the inference that Mr Du
Plessis, as trustee of the Hermanusdam Trust
,
authorised
the
registration
of
the
mortgage
bond as well as the
execution of the suretyship
;
59.4
The approval
of the annual financial statements as aforesaid furthermore
demonstrates that the defence that the suretyship and mortgage
bond
are invalid is prima facie spurious;
59.5
Mr Du Plessis
is the only person who can testify about the issue whether he
,
as trustee,
tacitly or by conduct
,
authorised Mr
van den Berg to effect the registration
of
the mortgage
bond by the trustees of the Hermanusdam Trust and to execute the
suretyship
,
as
specifically
pleaded by the
first and second respondents
;
59.6
Mr Du Plessis
is first and foremost
an officer of
the court and as such under the paramount
duty to serve
the interests of justice; to avoid the introduction of
incorrect
or misleading
evidence
;
and
to disclose to the court all
the
facts known to
him which
may
be relevant to the issue
,
even if such
facts are not in favour of his clients
,
in the event
that his clients' testimony is
i
ncons
i
stent
w
i
th
such facts
;
59.7
The
defendants
,
despi
t
e
the aforesaid
approval
of
the
2015
annual
financial
statements and the consequentia
l
confirmation
of the execution of the suretyship and the registration of the
mortgage bond
,
denied the
validity of the suretyship and the mortgage bond and persisted with
such denial
;
and
59.8
There was
,
in the light
of
the
aforesaid facts
and in view of
the
duties
of officers of
the court
,
a
real
prospect
that
a
conflict
of
interest
might
arise
,
and
that
Mr
Du
Plessis would have to
testify at the trial of the 2016 action despite Mr Du Plessis
'
stated
reluctance to testify
.
60.
Moreover
,
the aforesa
i
d
facts objectively demonstrate prima facie that Mr van den Berg
,
as a
reasonable
and
informed person
,
could not upon
the correct facts (the authorisation of the execution of the
suretyship by the trustees and the authorisation to
register the
mortgage bond by the trustees) reasonably apprehend
t
hat
Judge Opperman will not bring an impartial mind to bear on the
adjudication of the case
.
61.
The afo
r
esaid
contention is fortified by the
f
act
that Mr van den Berg does not deny that he signed the 2015 annual
financial statements and does not even attempt to explain
notes 1
.
1
and 6 reflected therein
.
62.
The
allegation
that
the
first
and
second
respondents
'
attempt
to
create
a scen
a
rio
that M
r
Du
Plessis is required to testify about an undated document which is on
the face of it signed by an unidentified person
,
at a strange
place on the document
,
is in the
light of the aforesaid facts and legal principles unfounded.
63.
The
date
upon
which
the
2015
annual
finan
ci
al
statements
were
approved
(signed)
by
the trustees are irrelevant.
64.
The
allegations
,
by Mr van den
Berg and confirmed by Mr Du Plessis
,
that the 20
1
5
annual financial
statements
were signed by
an unidentified person are disingenuous
.
64.1
The 2015
annual financial statements were discovered by the defendants
;
64.2
The 2015
annual
financial
statements
were
i
n
terms of uniform rule 35(10
)
produced by
the defendants and were handed in as Exhibit "C" on 29
November 2019 during the tr
i
al
o
f
the 2016 action
;
64.3
The resolution
in terms whereof the trustees approved the 2015 annual financial
statements was also signed by an "unidentified
person"
and
produced and
received as evidence as part of Exhibit "C"
;
and
64.4
The
inference
is
unavoidable that
the
"unidentified
person"
who
signed
both
the
resolution
and the 2015 annual financial statements on the very same page where
provision for
signature
by the
trustees is
made
,
is
Mr
Du Plessis.
65.
In the
premise
,
the
inference is
justified
that:
65.1
The defendants
and specifically Mr van den Berg's attack upon the integrity of Judge
Opperman
is
unfounded and
unjustified
;
65.2
The
contentions in
the
replying
affidavit that the first and second respondents are attempting to
force Mr Du Plessis to testify are unfounded
;
65.3
Prima facie
,
there were no
reasonable
factual
foundation to support the denial of
the
authority of
Mr van den Berg to execute the suretyship and to authorise the
registration of the mortgage bond
;
and
65.4
Prima facie
,
the
defendants'
persistence
with the
denials that the suretyship and
the
mortgage bond
are valid is unjustified.
66.
It follows
that Mr Du Plessis will
,
in the event
that
his
clients persist with their denial that the execution of the
suretyship and the registration of the mortgage bond were not
authorised
by the trustees
,
have to
testify
about
the approval
of
the 2015
annual
financial statements by the trustees and the consequent notes 1
.
1
and 6 at the trial of the 2016 action
.
Stated
differently
,
Mr Du Plessis
as an
officer
of the
court
will have to
disclose
the
relevant facts
to
the
court which are prima facie inconsistent with the denial of authority
in respect of the execution of the suretyship and the
registration of
the
mortgage
bond
.
The
judgments in the consolidation application and the application to
compel
67.
The
correctness
of
the
findings made
by
Judge
Opperman were
unsuccessfully
challenged in
terms
of the
applications for leave to appeal
in
the
High
Court
;
the
subsequent
applications for leave to appeal in the Supreme Court of Appeal
;
and the
applications
for
leave
to
appeal in the
Constitutional
Court
.
68.
These
judgments stand
.
Mr van den
Berg
is
not
entitled
to
a
re
-
hearing
of the issues in either the application to compel or the
consolidation application
.
The
judgment in the rule 27 application
69.
Mr van den
Berg makes
no
allegation
of
bias in the
application for leave to appeal
in
the High
Court
,
nor in the
application for leave to appeal
to
the Supreme
Court of Appeal in respect of the judgment in the
rule
27
application
.'
c.
The
attorney
for
the
applicant
did
indeed
endeavour
to
do
his
due
diligence but the case remained strained
,
unorthodox
and
complicated from the very beginning
.
The
case became mammoth
i
n
issues
and record
.
There
was an instance where the documents relied upon by the attorney was
illegible
and
the attorney for the applicant suggested that a magnifying glass be
used
.
He
did have one available
in
court
.
Neither
the witness nor the defence nor the court could
read
the
numbers on the papers
.
[12]
He
also wanted for a witness
to
do
calculations
in
court
on
the illegible documents
.
The
witness did not draft the documents and could not testify
to
the
correctness thereof
.
She
,
Ms
Bester
,
was
not a competent witness to testify on the
issue
.
When
the
court
asked
the attorney for the applicant in a certain
instance
what
he based a statement
to
a
witness on
,
he
answered
:
'
From
my experience
'.
He
just would not seize to be a witness in the
case.
He
would also not take
kindly
to
the
court questioning
the
manner in which he cross-examined
and
wanted
to
present
evidence
.
[13]
[13]
The
fact
that
the court
quoted the words of
the
attorney for
the applicant in quotation marks in a
judgment
was
interpreted as sarcasm by the court whilst it was a mere quote
.
The use of the
word
'b
i
zarre
'
was attacked
.
This made the
handling of the case challenging. The
court
had to be
extremely careful because much was twisted to another meaning
of
what the court
said as this application and example shows
.
[14]
A
reading of the record shows that the court
rarely
intervened
during cross-examination
.
Most
of the
issues
followed
after objections by counsel for the first and second
respondents
.
[14]
[15]
Counsel for
the first and second respondent was also called to order on some
occasions as the record will show. On the first day
that the matter
served before me the file was not properly prepared, the papers
drafted in Afrikaans and some other complications
were caused by the
first and second respondent and they were indeed admonished
.
Mr
van
den
Berg
indicated
that
he
,
from
the first day
,
had
'
misgivings
about the independence of the trial judge'
.
He is however
very vague about the cause therefor. I chided both parties for the
state of the files and papers
.
[16]
There just is
not any evidence that real bias existed in this case
.
It is not the
only test
;
real perceived
bias is enough.
[17]
Notwithstanding
the conduct of the attorney for the applicant and although I managed
and control the trial in accordance
with the law
;
the
remarks I made above
make me conclude that I must recuse myself from the trial. As stated
in S
v Zuma
and Another
supra,
'
[83]
...
it
is what the sound administration of justice
,
the
requirements of the Constitution, and my conscience dictate
.
No reasonable
negative inferences as to whether
the
trial is
constitutionally fair
,
should be
allowed to arise
'It
is
not enough
for
a judge to be
just
in his
judgment;
he
should strive to make the parties and the community
feel that he
is
just
;
he owes this
to himself
,
to
the law and to the position he holds
.
The integrity
of the judicial process must be protected against any reasonable
taint of suspicion so that
the
public and
litigants may have the highest confidence in the
integrity
and fairness
of the courts
.'
[18]
The applicant
requested
a
costs
order
against the first and second respondents should the application be
opposed
.
The
opposition of the application by the first and second respondents was
just and fair and will I not make any order as to costs
.
[19]
Order
1.
I accordingly
recuse myself and
hereby
withdraw from the
hearing of
the matter
held
under
case
number
1955/2016
and
as
per
the
issues
separated in terms of Rule 33(4) of
the Uniform
Rules of Court
.
The matter
will continue before another judge
.
2.
No order is
made as to costs
.
3.
Reasons for
the
judgment
may be
uplifted from the Registrar of the Court on Monday 11 November 2024
at 15h00.
M Opperman J
APPEARANCES
Counsel
for the
Applicant
Mr.
HSL
Du Plessis
HSL
Attorneys
Kroonstad
Emai
l
:
ontvangs
@
h
s
lpr
oku
r
eurs
C/0
Lov
iu
s
Block
Attorneys
First
Avenu
e
31
We
s
tdene.
Bloemfonte
i
n
Email:
lorinda@
l
ovi
u
s
bl
ock
.
co.za
Ref:
OJ van
Schalkwyk
Ref:
E09101*OVKS/lv
/
Sl88
/
l
6
Counsel
for
Respondents
Advocate
D.J
.
van
der
Walt
SC
Advocate
W.A.
van
Aswegen
Chambers
BLOEMFONTEIN
L
Strating
Sy
m
i
ngton
&
De Kok
A
ttorne
ys
1
69B
N
e
l
s
on
Mandela
D
ri
v
e
BLOEMFONTEIN
REF: L
STRATINGK
I
-
l06
3
7
Email
:
slra
t
ing
@sy
mok.co
.
za
[1]
I
t
i
s
o
nly
th
e
ap
plic
ant
a
n
d
t
h
e
fir
s
t
and s
ec
o
n
d
res
ponde
nts
th
at
parto
ok
in
th
e
li
t
igat
io
n
o
f
th
e
a
p
plica
t
ion
for
rec
u
sa
l.
[2]
S
v
Zuma and
Another
(CCD
30/2018P)
[2023] ZAKZPHC
10
;
2023
(1) SACR 621
(KZP)
(
30
Ja
nuary
2023)
.
[3]
(81/2023)
(2024)
ZASCA
72
;
2024
(
2)
SACR
412
(SCA)
.
[4]
Footnotes
omitted.
[5]
Case
number
1240/2020
,
judgment
on 10 March
2021
:
"
JUDGMENT
,
CONSOLIDATION
APPLICATION
IN TERMS
OF
RULE 11 OF THE UNIFORM RULES OF THE HIGH COURT
OF
SOUTH
AFRICA
",
Free
State Provincial Division, Bloemfontein
.
[6]
Paras
21 to 67 at 152 to
1
68
of the bundle marked
:
'Part
I
:
pages
1 to 299'
.
[7]
See
pages
1
01
to 1
1
6
of
the
bundle
marked
'
Part
I
:
pages
1 to 299
'.
[8]
On
page 197 of the bundle marked
'
Part
I
:
pages
1 to 299
'
.
But
also see the whole quote from the proceedings on pages 196 to 200 of
the same bundle
.
[9]
Pointing
to
the
team
of legal representatives of the
first
and second respondents
.
[10]
See
paras 118 to 119
.
6
at 190 to 196 of the bundle marked
'
Part
1
:
pages
1 to 299
'.
[11]
Footnotes
from
the
heads
of
argument
omitted
.
[12]
Bundle
marked
'
Part
I
:
pages
1
to
299
'
proceed
i
ngs
on 10
November
2023
:
paras
261
to
308
at
253 to 2
7
0
.
[13]
Bundle
marked
'
Part
I
:
pages
1
to
299
'
proceedings
on 10
November
2023
:
para
323
at
276
.
[14]
Bundle
marked
'
Part
I
:
pages
1
to 299
'
paras
125
to
145
at
203
to 206
.