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[2001] ZASCA 54
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Sager v Smith (185/99) [2001] ZASCA 54; [2001] 3 All SA 401 (A); 2001 (3) SA 1004 (SCA) (29 March 2001)
REPORTABLE
Case number:
185/99
IN THE SUPREME COURT OF APPEAL OF
SOUTH
AFRICA
In the matter between:
S
SAGER APPELLANT
and
N SMITH
RESPONDENT
CORAM
: SMALBERGER ADCJ, HARMS, OLIVIER, STREICHER JJA and
MTHIYANE AJA
DATE OF HEARING
: 12 MARCH 2001
DELIVERY DATE
: 29 MARCH 2001
Recusal - test -
reasonable apprehension of bias - application of test - whether comments made by
magistrate in the course of ruling
on recusal meets
test.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MTHIYANE
AJA
MTHIYANE AJA:
[1]
This appeal raises the
question whether certain comments made by a magistrate and his conduct during a
trial justified a reasonable
apprehension that he was biased against the
respondent (defendant) thus warranting his recusal.
[2]
The appellant
(plaintiff), an interior designer, instituted action against the defendant in
the Magistrates’ Court, Cape Town,
for payment of the sum of
R36 350,91. The claim was based on an alleged breach of an agreement in
terms of which the plaintiff
had undertaken the interior decoration and
furnishing of the defendant’s holiday apartment at Saunders’s Rocks,
in Bantry
Bay. The defendant had already paid an amount in excess of R250
000,00 in respect of the contract price, but refused to pay the
balance of R36
350,91, alleging that the plaintiff’s services had not been rendered in a
proper, efficient and workman-like
manner. The defendant also alleged in his
plea that some of the goods and materials delivered by the plaintiff were
defective.
[3]
During the course of the trial the magistrate turned
down two applications for his recusal. He eventually found for the plaintiff,
and after allowing for certain deductions he awarded her a reduced sum of R26
123,46, other relief and costs. A counter-claim by
the defendant for an alleged
overpayment was dismissed with costs.
[4]
The defendant appealed (and
the plaintiff cross-appealed) to the Cape Provincial Division (Comrie J
et
Van Heerden AJ) against the magistrate’s judgment on the merits,
and his refusal to recuse himself. At the hearing the appeal
could not be dealt
with on the merits because the magistrate’s reasons had not been filed as
required by rule 51 of the magistrates’
courts’ rules. By agreement
between the parties only the recusal point was dealt with. It was agreed that
if the point was
decided against the defendant the appeal on the merits would be
postponed to a later date.
[5]
The court
a quo
upheld the
appeal in respect of the first application for recusal but the second
application was found to be ill-conceived. With
regard to the latter, Comrie J
came to the conclusion that what the magistrate had said in chambers and in open
court was not “sufficient
in itself to found a reasonable suspicion of
bias against the defendant”. The learned judge found that the second
application
was merely calculated to reinforce defendant’s earlier
perception of bias. This finding has not been challenged and no further
attention will be devoted to it in this judgment. Suffice it to say that in
what follows any reference to the application for recusal
should be understood
as referring only to the first application, unless otherwise
indicated.
[6]
The plaintiff appeals to this Court, with leave of the
court
a quo
, against its decision overturning the magistrate’s
refusal to recuse himself. In his judgment Comrie J criticised the magistrate
for commenting on the merits in the course of his ruling. Without going into
the grounds on which the application for recusal was
based the learned judge
came to the conclusion that:
“. . . by the very terms of his ruling . . . the magistrate disqualified
himself from further presiding over the
trial.”
[7]
Before turning to the main issue it
is necessary to sketch briefly the background events leading up to the
application for recusal
and the magistrate’s ruling thereon. The trial
ran for seven days and a number of witnesses (including the plaintiff) were
called to give evidence on the plaintiff’s behalf. While the plaintiff
was giving evidence in chief the defendant’s
attorney objected to the
handing in of certain photographs, contending that Magistrates’ Courts
rule 24(10) had not been complied
with. He raised two grounds of objection.
The first was that insufficient notice had been given and the second was that
the photographs
were misleading in that they did not depict the defects in the
goods supplied by the plaintiff to the defendant. After the matter
was argued
briefly counsel for the plaintiff decided not to press for the handing in of the
photographs at that stage. The matter
was adjourned to another date and the
magistrate was not called upon to make a ruling on the
objection.
[8]
On resumption some three or four months later, counsel
for the plaintiff once again sought to introduce the ‘offending’
photographs. By then proper notice had been filed as required by rule 24(10).
No proof of a notice of objection was forthcoming.
As a consequence rule
24(10(c) would apply. It reads as follows:
“(
c
) If the party receiving the notice fails within the period
specified in the notice to state whether he objects to the admission in
evidence
of the plan, diagram, model or photograph referred to in the notice, such plan,
diagram, model or photograph, as the case
may be, shall be received in evidence
upon its mere production and without further proof
thereof.”
Despite the absence of such
notice the defendant’s attorney informed the magistrate he was still
opposing the handing in of
the photographs. At that point the magistrate warned
the defendant’s attorney against needlessly objecting and drew his
attention
to the possible costs implication of such exercise. This seemingly
innocuous caution triggered an unpleasant verbal exchange which
was immediately
followed by the launching of an application for the magistrate to recuse
himself. I consider it necessary to refer
to the salient features of that
exchange
in extenso
:
“
Court
: All right. Well, you know the penalties when a
photographer gets called with regard to costs and so
on.”
The defendant’s attorney assumed that he was
being threatened and reacted as follows:
“
Mr Bielderman
: Your worship, with respect, I will not be
threatened.
Court
: No, you won’t be threatened. All
right.
Mr Bielderman
: Your worship, this case must be taken seriously.
At this stage, with that comment in mind, I’d like to place on record,
your
worship the last time we were in your chambers you made a statement which
has concerned my client tremendously, that you think we
are splitting hairs.
This is a serious case involving over R300 000 ultimately. We’re dealing
with high class clients. I
would ask you with absolute respect to take this
case seriously and consider the complaints of the parties. This is not a
willy-nilly
people clutching at straws and petty little defences. Here is a man
that’s paid close to R250 000,00 in cash on this plaintiff’s
own
version, sometimes ahead of the requirements and he was then met with defective
and shoddy workmanship and he’s not splitting
hairs. And I’d like
you to take that seriously and if the plaintiff must prove their case, your
worship, they are coming here
and they’re submitting without prejudice
negotiations. You’re admitting hearsay evidence. You now state that I
know
[what the] penalties [are] as far as calling photographers are concerned.
There are rules of this Court, rules of evidence, your
worship, with respect. I
want to place on record the defendant will not be threatened by
that.”
[9]
The magistrate responded:
“
Court
: As much as the defendant won’t be threatened, I
believe it is proper to point out to you that if you object to these photographs
being handed in merely because you - merely for the sake of or and if you oblige
the plaintiff to call the photographer, then as
the law says and as the rule
says and as the commentary on the rule says, you may be [mulcted] in costs. And
I’m pointing
that out to you, your client is in court, and my statement is
now on record that I say I consider that you are splitting hairs.
I do so
consider that you’re splitting hairs and at the end of the case when it
comes to costs then those types of considerations
will come into play and if you
want to take it as a threat do so by all means. I believe it’s proper for
a judicial officer
to point out to counsel and to his client that when he does
waste time on frivolous matters in court that there comes a day of reckoning
at
the end of the case. So there you have my threat, Mr Bielderman if you want to
take it as a threat.”
[10]
At the request of the
defendant’s attorney the matter was allowed to stand down to enable him to
take instructions. On resumption
he moved the application for the
magistrate’s recusal and submitted as follows:
“
Mr Bielderman
: Your worship, you may have noticed I’m
somewhat angered by the results of events in this court and I apologise if I
appear
a bit abrupt. But what does surprise me and my client, I’ve taken
instructions now, it would appear that nobody in this court
is actually
listening to me. I made it quite clear that Mrs Sager can testify on the
photographs and I will cross-examine her on
those photographs. Subsequent to
that my learned friend then addresses and the court threatens me or rather my
client with a cost
order if we are taking technical points, but yet I had
already said the photographs can go in and I reserve my right to cross-examine
on those photographs. Based on that, your worship, and your ruling earlier
where my learned friend has addressed you and she quoted
authority, the
Beyer
’s case, saying if there is a final agreement the first
one’s novated, the new agreement then without prejudice falls
away. You
allowed that to come in although they’re relying here on the first
agreement. She shot herself in the foot with
the argument. Nobody actually
listened to that point. She contradicted herself, quoted authority which shoots
her case down. Your
worship, on that basis, I’m instructed to bring an
application for your recusal and I beg leave to put my client in the witness
box
to make the application and to give his evidence under oath regarding the
application.”
[11]
After this brief address the
defendant was called to give evidence, whereupon he advanced three grounds for
his belief that the magistrate
was biased against him. He summed up his
complaints as follows:
“[O]n a previous occasion in court [1] the magistrate
was falling
asleep
. The magistrate said today that [2] this is
a frivolous
matter
. Every argument that you bring [3] we’re
splitting
hairs
. I think the magistrate has prejudged the whole issue.”
[Emphasis added]
The defendant went on to say that he did not
think that he would get a fair hearing.
[12]
After argument the
magistrate refused the application for recusal and ruled as
follows:
“
Ruling
My ruling on the application is as follows. I cannot recall the precise context
in which I said that the complaints regarding the
plaintiff’s work raised
by Mr Bielderman in cross-examination amounted to a splitting of hairs. Taken
on their own, the complaints
would be seen by any objective observer to be
trivial. However, taken together and against the background of the matter, the
obvious
high standard of the furnishings and the expense involved, it may well
be that the defendant was or is entitled to cancel the contract,
one of the
issues which I still have to decide once the evidence of the interior designers
which the defendant proposes calling is
before me.
I do not
consider that on all the factors placed before me there is a reasonable
suspicion that I have prejudged the matter and the
application for my recusal is
refused. I make no order as to costs.”
[13]
After the
ruling the defendant’s attorney informed the magistrate that he would
cross-examine any “person trying to present
those photographs”
although he was “not admitting that they are correct”,
notwithstanding the provision of rule
24(10)(c). The trial proceeded and the
photographs were duly handed in.
[14]
Against
this background I turn to consider whether the comments made by the magistrate
in the course of his ruling and his conduct
during the trial justified a
reasonable apprehension that he was biased against the
defendant.
[15]
In
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
1999(4) SA 147 (CC)
(“
SARFU
”) at para [30] the Constitutional Court decided that
an application for the recusal of a judge raises a “constitutional
matter” within the meaning of s 167 of the Constitution in that, in terms
of s 34 of the Constitution, everyone has a right
to a fair public hearing in a
court. Having found that it was a constitutional matter the Constitutional
Court at para [48] formulated
the proper approach to recusal as follows:
“The question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the
Judge has not or will not
bring an impartial mind to bear on the adjudication of the case, that is a mind
open to persuasion by the
evidence and the submissions of counsel. The
reasonableness of the apprehension must be assessed in the light of the oath of
office
taken by the Judges to administer justice without fear or favour; and
their ability to carry out that oath by reason of their training
and experience.
It must be assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They
must take into account the fact that they have
a duty to sit in any case in which they are not obliged to recuse themselves.
At
the same time, it must never be forgotten that an impartial Judge is a
fundamental prerequisite for a fair trial and a judicial officer
should not
hesitate to recuse herself or himself if there are reasonable grounds on the
part of a litigant for apprehending that
the judicial officer, for whatever
reasons, was not or will not be impartial.”
What is
said in respect of a judge applies equally to a magistrate. In
South African
Commercial Catering and Allied Workers Union and Others v Irvin & Johnson
Ltd (Seafoods Division Fish Processing)
2000(3) SA 705 (CC)
(“
SACCAWU
”) at paras [11] to [17] the Constitutional Court
further elaborated on that test. It follows that the test of “a
reasonable
apprehension of bias” replaces that of “a reasonable
suspicion of bias” previously favoured by this Court. See
S v
Roberts
1999(4) SA 195 (SCA) at paras [32] and [34]. The difference would
appear to be one of semantics rather than substance.
[16]
In the
application of the test two fundamental premises are of importance. The basic
starting point of the enquiry is that the court
presumes that judicial officers
are impartial in adjudicating disputes. See
SARFU
at para [41]. The
onus
to rebut that presumption is on the person alleging bias or the
appearance of it. See
SACCAWU
at para [12]. The second is that absolute
impartiality is an unattainable ideal, given that judicial officers are only
human. See
SARFU
at para [42]. It is quite normal for a presiding judge
to form a
prima facie
view on the issues during the hearing of a matter.
But this is not necessarily indicative of bias. As was stated by Schreiner JA
in
R v Silber
1952(2) SA 475 (AD) at 481 F - H:
“[b]ias, as it is used in this connection, is something quite different
from a state of inclination towards one side in the
litigation caused by the
evidence and the argument, and it is difficult to suppose that any lawyer could
believe that recusal might
be based upon a mere indication, before the
pronouncement of judgment, that the court thinks that at that stage one or the
other
party has the better prospects of success. It unavoidably happens
sometimes that, as a trial proceeds, the court gains a provisional
impression
favourable to one side or the other, and, although normally it is not desirable
to give such an impression outward manifestation,
no suggestion of bias could
ordinarily be based thereon. Indeed a court may in a proper case call upon a
party to argue out of the
usual order, thus clearly indicating that its
provisional view favours the other party, but no reasonable person, least of all
a
person trained in the law, would think of ascribing this provisional attitude
to, or identifying it with, bias.”
See also
SACCAWU
at para [13] and
S v Khala
1995(1) SACR 246 (A) at 252 G -
J.
[17]
The test to be applied is an objective one, requiring not only
that the person apprehending the bias must be a reasonable person
but also that
the complaint must be reasonable. See
S v Roberts loc cit
. This
two-fold feature of the required objective standard has been described in
SARFU
and
SACCAWU
as the double requirement of reasonableness. In
SACCAWU
it was said the double reasonableness requirement highlights the
fact that mere apprehension on the part of a litigant that a judge
will be
biased - even a strongly and honestly felt anxiety - is not enough. See paras
[14] and [16]. The statement in the judgment
of the court
a quo
that
“[t]he existence of such suspicion is a matter of subjective perception by
the complainant party” is accordingly
contrary to the principles laid down
in the above cases, requiring that the apprehension must be that of a
reasonable person.
[18]
With the above in mind I turn to consider the
complaints which formed the basis of the defendant’s application for
recusal.
They may be divided into four classes. They relate to (1) the rulings
made by the magistrate in the course of the trial, (2) the
admission of the
photographs, (3) the refusal to attend an inspection
in loco
and (4) the
comments that defendant’s attorney was splitting hairs and wasting time on
frivolous matters.
[19]
I have not included the complaint alluded to
by the defendant in his evidence when he said that “on a previous occasion
the
magistrate was falling asleep”. In the appeal before us no argument
was advanced in support of this complaint. I consider
that the stance adopted
by the defendant’s counsel was the correct one because there was in my
view no merit in the point.
Although it is not necessary to decide the matter
it is interesting to note briefly how the problem has been dealt with in other
jurisdictions. In
(1997) 71
Australian Law Journal
745
, a case note was
published which said that the English Court of Appeal had held that when a judge
fell asleep, it was the duty of
counsel to wake him or her up, not just to note
an appeal point for later. The same result was reached in Queensland in
Stathooles v Mt Isa Mines Ltd
[1997] 2 Qd R106 at 113. See
(2001) 75
Australian Law Journal
4
- 5.
[20]
Turning to the first
complaint relating to the rulings in the course of the trial, there can be no
doubt that the magistrate acted
even-handedly in the way in which he dealt with
the objections. This is borne out by the record and counsel for the defendant
could
not advance any argument to the contrary. There is no merit in the
complaint.
[21]
As to the photographs, I do not consider the remarks
made by the magistrate in relation thereto to be indicative of bias. At the
stage at which the defendant’s attorney objected to their introduction in
evidence proper notice had been filed as required
by rule 24(10) and no notice
of objection had been received from the defendant. The objection raised by the
defendant’s attorney
was futile and obstructive, and the magistrate was
justified in drawing the attorney’s attention to the possibility of his
client being mulcted in costs. The warning was not a threat, as the attorney
chose to interpret it. The role of a judicial officer
in civil proceedings is
not necessarily that of a “silent umpire”. See
Greenfield
Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976(2) SA 565 (A) at 570 E - F. The magistrate certainly acted within his
rights in his attempt to bring the defendant’s
attorney into line. As was
said by this Court, “‘n Regter is geregtig, en dit kan ook
afhangende van omstandighede sy
plig wees, om die gedrag van amptenare van die
Hof te kritiseer maar dan moet dit geregverdig wees en nie onoordeelkundig
gedoen
word nie.” See
Rondalia Versekeringskorporasie van S.A. Bpk v
Lira
1971(2) SA 586 (A) at 589 H. The defendant also fails on this
point.
[22]
Counsel for the defendant did not make any point
concerning the magistrate’s refusal to conduct an inspection
in loco
and indicated that he was not relying on it. He acted wisely in doing so.
It is apparent from the record that there was never an
outright refusal by the
magistrate to attend an inspection. He intimated that he was not prepared to go
“at this stage”
i e at the commencement of the proceedings. He made
it clear, however, that if justice required it he would consider going on an
inspection during the course of the trial. This was consistent with the
magistrate’s attitude throughout that he would apply
an objective mind to
the relevant facts once they were all before the court.
[23]
That brings me to the complaint that the magistrate accused
the defendant’s attorney of splitting hairs and wasting time on
frivolous
matters. The magistrate does not deny that he said this. In his ruling he
stated that he could not recall the context
in which he said it. Counsel for
the defendant argued that when he made this comment the magistrate was referring
to the merits
of the defendant’s case. He submitted that he was not
entitled to do this; that he went too far and consequently that he prejudged
the
matter.
[24]
In my view the magistrate’s remarks in this regard
may be suspectible to two interpretations. First, the magistrate was giving
vent to his frustration with the way in which the defendant’s attorney was
conducting the trial, in particular his cross-examination.
Second, the
magistrate may well have been commenting on the merits. On either basis there
is no room for the contention that he
had prejudged the matter. As to the first
point, the defendant’s attorney was indeed impeding the smooth progress of
the trial
by raising pointless objections. His objection to the handing in of
letters which had preceded the conclusion of an agreement between
the parties
and the photographs in regard to which proper notice had been filed, took the
trial nowhere and amounted to a waste of
time.
[25]
However, even
if one assumes in favour of the defendant that when the magistrate alluded to
the splitting of hairs, he was referring
to the merits this does not avail the
defendant. There are two reasons for this. First, the magistrate’s
comments
per se
do not indicate partiality. They were also subject to
qualification. The magistrate clearly stated that if the complaints were
taken
in isolation they would appear to be trivial, but when taken together and
against the background of the matter, the obvious
high standard of the
furnishings and expense involved, it might well be that the defendant was
entitled to cancel the contract.
He went on to say that this was one of the
issues he still had to decide after hearing the evidence of the
defendant’s experts.
The magistrate was at pains to indicate that he was
keeping an open mind and would ultimately decide the matter on the objective
evidence placed before him. It is interesting to note that there is no
difference of substance between what the magistrate said
on the quality of the
complaints and what was said by the defendant’s attorney in his opening
address. He certainly did not
say that the defendant’s claim was a
trivial matter as suggested by the defendant in his evidence. In any event a
magistrate
is not necessarily disqualified from presiding in a case merely
because he has expressed a
prima facie
opinion on certain aspects of that
case. The second reason why the comments on the merits do not avail the
defendant is that it
was never part of his case that what was said by the
magistrate in the course of his ruling justified an application for his recusal.
No application for recusal was based on his remarks. It seems to me that if the
magistrate had refused the first application for
recusal without commenting on
the merits that would have been the end of the matter, because the second
application was found by
the court
a quo
to be without substance, and it
can be inferred from the judgment that but for the magistrate’s remarks in
his ruling the first
application for recusal would also not have been upheld.
[26]
In my view the magistrate neither said nor did anything to give
rise to a reasonable apprehension that he was biased against the
defendant. Nor
would any reasonable person in the position of the defendant have had reason to
entertain such a belief on a proper
appreciation of the facts. In the result
the defendant failed to make out a case for recusal and the magistrate was
entitled to
refuse the application.
[27]
On the question of costs, the
history of the matter indicates that in the courts below the plaintiff was only
represented by one
counsel. No argument was advanced in this Court as to why it
was considered necessary at this juncture to brief two counsel. I
do not
consider the matter to be sufficiently complex to warrant the appointment of two
counsel at the expense of the defendant.
[28]
In the result the following order is made:
The appeal succeeds, with costs.
The order of the court
a quo
is set aside and the following is
substituted in its stead:
“The appeal on the recusal issue
is dismissed with costs.”
The matter is referred back to the court
a quo
for the hearing of the
appeal on the merits.
__________________________
K K MTHIYANE
ACTING JUDGE OF APPEAL
SMALBERGER ADCJ )Concur
HARMS JA )
OLIVIER JA )
STREICHER
JA )