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[1992] ZASCA 85
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BTR Industries South Africa (Pty) Ltd. and Others v Metal and Allied Workers' Union and Another (151/89) [1992] ZASCA 85; 1992 (3) SA 673 (AD); [1992] 4 All SA 701 (AD); (1992) 13 ILJ 803 (A) (25 May 1992)
Case No. 151/89
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BTR INDUSTRIES SOUTH AFRICA (PROPRIETARY)
LIMITED
1st Appellant
P E ROUX
2nd Appellant
M J
OOSTHUIZEN
3rd Appellant
C C DE WITT
4th
Appellant
and
METAL AND ALLIED WORKERS'
UNION
1st
Respondent
PHILLIP DLADLA
2nd Respondent
CORAM:
HOEXTER, MILNE, KUMLEBEN, F H GROSSKOPF et GOLDSTONE, JJA
HEARD:
9 March and 10 March 1992
DELIVERED:
25 May 1992
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA,
The first appellant ("BTR") is a private company which manufactures rubber
products at its factory at Howick in Natal. The first respondent
("MAWU") is a
trade union registered in terms of sec 4 of the Labour Relations Act 28 of 1956.
The second respondent is Mr P Dladla
to whom I shall refer as "Dladla". Dladla
is a member of MAWU and a former employee of BTR.
From August 1983 until the
beginning of May 1985 the majority of the workers employed by BTR at the factory
were members of MAWU.
Following upon protracted and acrimonious labour wrangles
between BTR and MAWU a conciliation board was established on 28 January
1986. It
sat in Pietermaritzburg on 26 February 1986. On 7 May 1986 the Minister of
Manpower referred certain disputes between BTR
and MAWU to the industrial court
("the IC") for a determination in terms of sec
3
46(9) of the Act. In the application before the IC MAWU
contended that BTR
had been guilty of unfair labour practices and that BTR was entitled to a
determination granting it relief. BTR
resisted the application.
The second,
third and fourth appellants in this appeal were the members of the IC which
heard the application. The second appellant
(the late Mr P E Roux SC) presided.
He was a Deputy-President of the IC. At a late stage in the proceedings before
the IC counsel
for MAWU made an unsuccessful application for the recusal of the
second appellant. Thereafter the matter proceeded to its conclusion.
On 9
September 1987 the IC dismissed MAWU's application. No order was made as to
costs. The judgment of the IC has been reported:
(1987) 8 ILJ 815.
In February 1988 MAWU and Dladla made application on notice of motion to the
Natal Provincial Division ("the court a quo") for a review
of the proceedings in
the IC. They asked
4
that the determination should be set aside; that the
application for a
determination should be referred back to an
industrial court otherwise constituted; and that BTR should
bear the costs
of the review proceedings jointly and severally
with so many of the members
of the IC as might elect to oppose
the review. In fact all four appellants resisted the
review
application.
The review proceedings came before Didcott J. The
argument addressed to the court a quo fell into two main
compartments. They are conveniently summarised thus in the
judgment of Didcott J:-
"The one I shall call the recusal compartment. The other is that huge
compartment that encompasses what I shall call the merits of
the case.
The recusal compartment is there as a result of an unsuccessful application made
in the middle of the proceedings before the Industrial
Court for the recusal of
its deputy president .... The proceedings as a whole are said to have been
vitiated by the second respondent's
decision to continue sitting in the
circumstances to which objection was taken
when
5
his recusal was sought."
In regard to the review on
the merits the learned judge preferred to make no definite finding. On the other
hand Didcott J concluded
that the second appellant's refusal to recuse himself
constituted a fatal irregularity. Accordingly the court a quo set aside the
IC's
determination and remitted the case for a hearing de novo by an industrial court
consisting of three new members. In regard
to the costs of the application
before him Didcott J ordered BTR and the second appellant jointly and severally
to pay those costs
incurred by MAWU and Dladla in regard to the recusal
compartment of the review, such costs to include the costs of employing two
counsel. For the rest each party was ordered to pay his or its own
costs.
Thereafter, and in response to applications for leave to appeal made
before him Didcott J -
6
(1)
granted the four appellants
leave to appeal against the whole of his judgment and
order;
(2)
granted MAWU and Dladla leave to
cross-appeal against that part of the order awarding them limited costs instead
of the costs of the
whole review application;
(3)
ordered that the appeal and the cross-appeal should be heard by this
court.
The review touching upon the merits of the
IC's determination need be considered by this Court only in the eventuality that
Didcott
J erred in ruling that the second appellant should have recused himself.
A judgment by this court upholding the decision of the court
a quo would
entirely dispose of the appeal. In the interests of convenience, and with a view
to a possible saving in time and legal
costs, the Chief Justice invited the
parties to consider the desirability or otherwise of a "divided" hearing of the
two issues.
By
7
agreement of all parties to the appeal argument was heard on 9 and 10 March
1992 in relation to the recusal issue only; and accordingly
this court is now
required to consider only whether Didcott J was right or wrong in ruling that
second appellant should have recused
himself.
Between the years 1983 and 1986
labour relations between BTR's management and MAWU were characterised by a
prolonged and bitter struggle.
Details thereof are chronicled in the reported
judgment of the IC. For the limited purposes of this appeal only the leading
events
need be recounted.
The factory has been in operation since 1919. In
1974 no less than 2160 workers were employed. In the years thereafter, due both
to
a downturn in the national economy and a necessary process of rationalisation
of its production plants at the factory, BTR was obliged
to retrench many of its
workers. In the last decade retrenchment took place as follows: 300 workers lost
their jobs in 1981; 752
in 1984; and 102 in 1985.
8
This massive retrenchment gave rise to much dissatisfaction and uneasiness on
the part of the workers.
MAWU having recruited a majority of the workers at
the factory, on 11 August 1983 it submitted to BTR a draft proposal for a
comprehensive
and final recognition agreement. On 27 September 1983 BTR produced
its first proposal in this connection. Between August 1983 and
the end of April
1985 MAWU and BTR management were involved in what the IC in its reported
judgment described (at 820H) as a "protracted
power play" over the issue of a
full recognition agreement and the rights flowing therefrom.
The period between August to December 1984 was one of sustained industrial
action on the part of workers at the factory in the form
of mass meetings, a ban
on overtime work, go-slow techniques on night shifts, a sit-in at the canteen
and a refusal to work on the
part of the solid woven-belting department. A
strike ballot held on 4 February 1985 was
9
followed by further industrial action: a go-slow strike from 7-12 March and a
full strike from 12-15 March. Meanwhile during February
1985 further proposals
and counter-proposals in regard to the central issue of a recognition agreement
had been exchanged between
BTR and MAWU. In March mediation took place, and a
conciliation board meeting was held. The latter ended in deadlock between the
parties on 10 April 1985. On that date BTR submitted, as a final offer, a draft
recognition agreement in a form acceptable to BTR.
This was rejected by MAWU
which on 17 April submitted for signature its final proposed draft for a
recognition agreement.
On 30 April 1985 all the weekly-paid workers at the
factory downed tools. BTR promptly sent a telex to MAWU placing on record the
work stoppage and stating that it regarded this as constituting both illegal
industrial action and a breach of contract. MAWU responded
by (1) confirming
that MAWU's members were on strike; (2) denying that the strike was
10
illegal; (3) linking the strike to BTR's failure to conclude a recognition
agreement with MAWU; and (4) stating that MAWU's members
required MAWU's final
draft for a recognition agreement to be signed before they would return to
work.
On 2 May 1985 BTR issued an ultimatum to the striking workers to return
to work or to face the possibility of the termination of their
contracts of
employment. The ultimatum was ignored and on 3 May the striking workers,
numbering 890 in all, were dismissed. On 4
May 1985 BTR offered re-employment to
all workers. This offer was rejected. Thereafter BTR maintained its offer of
re-employment
to all dismissed workers, but at the same time it invited
applications for employment at the factory from other job-seekers. Few
of the
dismissed workers accepted re-employment, and the remaining vacancies were
filled on a temporary basis until 2 August 1985.
On 22 July MAWU informed BTR's
managing director that the workers were willing to return to work
unconditionally. Written
11
confirmation thereof was sought by BTR. This was done by way of a telex
received by BTR only on 12 August 1985, by which time the
temporary work-force
at the factory had already (on 2 August) been engaged on a permanent basis. The
remanning of the factory was
only completed at the end of 1985. No more than
some 66 of the dismissed workers accepted re-employment.
In August 1985 BTR
broke off negotiations with MAWU and intimated to the latter that it would be
prepared to consider only such specific
proposals for the settlement of the
dispute between the parties as MAWU might wish to make. On 24 October 1985 MAWU
applied for the
appointment of a conciliation board in connection with the
issues of a recognition agreement between the parties and BTR's dismissal
of the
striking workers. Despite opposition by BTR a conciliation board was estabished
and it sat on 26 February 1986. As mentioned
earlier in this judgment the
Minister on 7 May 1986 referred certain disputes between the parties to the IC
for a determination in
terms of
12
sec 46(9) of the Act.
I turn to the main issues raised in the application
before the IC and the nature of the relief sought by MAWU against BTR. In
support
of its claim that BTR had been guilty of unfair labour practices MAWU
pleaded, inter alia, (1) that BTR had refused to negotiate
in good faith with
MAWU towards the conclusion of a recognition agreement and towards a resolution
of the strike and the ensuing
dismissal of the strikers; (2) that BTR had
dismissed the striking workers without good cause or in order to victimise them
for their
trade union activities, or in order to facilitate selective
re-employment of other workers by BTR. Accordingly MAWU claimed a determination
requiring BTR (a) to recognise MAWU as the collective bargaining representative
of its employees at the factory; (b) to negotiate
bona fide with MAWU over the
issue of recognition of the latter; and (c) to reinstate the dismissed strikers.
At the end of the proceedings,
as mentioned earlier in this
13
judgment, the determination made by the IC was that MAWU's application be
dismissed. The conclusions at which the IC arrived are summarised
at 840 of the
reported judgment.
The proceedings before the IC assumed the nature of a
trial and in what follows I shall refer to them as "the trial". The trial began
on 4 November 1986 and, with postponements from time to time, it extended over a
period of nine months, concluding on 9 September
1987. It occupied 39 full court
days, and its sessions were attended daily by some 1000 onlookers chiefly drawn
from the dismissed
workers. For their benefit, and by agreement between the
parties, an interpreter translated from English into Zulu summaries conveying
the gist of what each English-speaking witness had to say. At the trial both
sides were legally represented. BTR's legal team consisted
of an attorney and
three advocates.
Five witnesses testified on behalf of MAWU and three
witnesses were called by BTR. There were two key witnesses.
14
The main witness for MAWU was Mr W G Schreiner ("Schreiner") , while for. BTR
the chief witness was Mr R J Sampson ("Sampson"). At
the time relevant to the
issues raised at the trial Schreiner was the branch secretary of MAWU and
Sampson was responsible to BTR
for personnel and industrial relations at the
factory. During the bargaining between the two parties Schreiner headed MAWU's
negotiating
team while Sampson led that of BTR. At the trial Schreiner and later
Sampson spent many days in the witness-stand. Each was subjected
to a long and
pertinacious cross-examination.
There is one facet of the cross-examination of Sampson which requires
particular mention. It relates to the role played in the negotiations
by a firm
called Andrew Levy and Associates ("ALA"). ALA, which is based in Johannesburg,
carries on the business of consultants
and advisers on industrial and labour
relations. Its clients appear to be drawn predominantly from the sector of
employers. In his
15
evidence Sampson said that he believed ALA to be the "top" industrial
relations specialist in the country. Sampson had spoken to Mr
Andrew Levy
("Levy") of ALA as early as 1979 at a time when BTR was girding its loins for
the emergence of trade unions; and in December
1984 BTR engaged the services of
ALA. Sampson testified that in its dealings with MAWU BTR sought the advice of
ALA "at every juncture";
and that in the last critical stage of negotiations BTR
had relied "very heavily" on ALA's advice. According to Sampson BTR in general
followed ALA's advice.
Sampson was a chartered accountant by training who had
long been in the employ of BTR. He carefully made and preserved notes of his
dealings with others. These notes included the advice which from time to time
BTR had sought and obtained from ALA. During the course
of Sampson's
cross-examination, and with a view to establishing that in the treatment of its
workers BTR had been guilty of sundry
unfair
16
labour practices, counsel for MAWU explored at great length with the witness
the nature and propriety of the advice given by ALA to
BTR.
It is clear from
the evidence that in advising its client ALA espoused the cause of BTR very
zealously. On the one hand ALA viewed
BTR's labour problems with sympathetic
understanding. Towards MAWU's trade union aspirations and the strategies
employed by it, on
the other hand, the attitude of ALA was one of undisguised
hostility mingled, on occasion, with disgust.
The advice given by ALA to BTR
was often couched in acerbic language. In making this last observation I hasten
to add the following.
Having regard to the limited ambit of the issues in the
present appeal one is here primarily concerned neither with the intrinsic
merit
of ALA's advice to BTR nor with the propriety of the latter's conduct when it
put that advice into practice. For reasons soon
to become apparent, one
17
is here concerned more immediately with the nature and extent of the overt
demonstrations of ALA's loyalty and allegiance to BTR as
one of the two parties
in the struggle. It follows, therefore, that my description of the tenor of the
advice given by ALA is not
intended, for purposes of the present appeal, as a
criticism of ALA. It is well known that struggles between management and labour
are often fiercely waged; and that they may tend to unleash intense feelings on
either side. In the instant case, for example, the
evidence at the trial tends
to show, in my estimation, that the pugnacity which often characterised the
advice given by ALA to BTR
was well matched by the obduracy sometimes shown by
MAWU's negotiating team at critical stages of the power struggle when,
objectively
viewed, agreement on a recognition agreement was well within the
grasp of the warring parties.
With the above remarks in mind I turn to consider the general thrust of ALA's
advice to BTR. A few excerpts from
18
Sampson's notes of his discussions with either Levy or Mr Gavin Brown
("Brown") of ALA will suffice.
Mention has already been made of the
short-lived strike at the factory which lasted from 12 - 15 March 1985. In
regard thereto ALA
advised BTR (on 13 March 1985) that it would prove to be to
the disadvantage of BTR if the striking workers should heed an instruction
to
return to work because then BTR would not be able to "belt" the errant workers
(i e take punitive action against them). In connection
with the same strike the
advice offered by ALA on 15 March 1985 involved a plan to fire the workers who
failed to return to work,
and thereafter to re-hire some of the workers so
dismissed together with new applicants for employment at the factory; but that
if
the strikers returned to work, BTR's supervisors should carefully monitor the
actions of the shop stewards and where possible "bounce
out" the latter.
After the striking workers had been persuaded by MAWU
19
to return to work Sampson and Levy had a telephone conversation
on 18 May 1985 whereafter Sampson recorded the following advice:
"Grapevine message - initial upshot they (the workers) had a lucky escape and
next time they will be unemployed. Tell chaps they
came close. Schreiner will
shout and scream on Wednesday. We just say 'That is it, Mr Schreiner' - he has
to make the moves. He is
a very worried man."
A
further note by Sampson reflects the following words of advice
from ALA -
"Strike two weeks. Would not fire or re-hire for two weeks. This will erode
Schreiner's power base .... If not broken by two weeks
we could have a trickle
back and lose shop stewards by closing the gates. Then perhaps fire after due
warnings, obtain a new workforce."
On
21 March 1985, and after Sampson had offered a
"package deal" to Schreiner, Levy's advice to Sampson in the
course of a
telephone conversation began thus:-
"Don' t meet with Schreiner. Open to 12 noon on Friday then offer withdrawn
...."
I move on to the ill-fated strike on 30 April
1985 which was
20
fraught with the gravest consequences for the workers and the
factory
alike. On that date Sampson had a telephone
conversation with Brown. I quote
portions only of Sampson's
note reflecting ALA's advice:-
"Be careful of threats at this sensitive stage. Do this post May Day situation.
Sit out today, no threats. Don't get aggressive today
(very tense,
staff dragged out)
We could consider
lock out,
and only allow people in on basis that there
will be no work stoppage on the question of recognition
agreement."
On the following day (1
May 1985) Sampson recorded the
following advice as emanating from ALA -
"He [Levy] goes along with no lockout He agrees,
dismiss - but its the worst timing for us due to international implications on
BTR in UK [United Kingdom]. This is total war mode.
Andrew [Levy] believes this
is the route, but very bad for us. Gear up and go ahead for tomorrow .
..."
According to a note made by
Sampson on 14 May 1985
after advice from Brown -
"The most important message is there is no relationship any more .... Giles
[BTR's attorney] must
21
get message to Brand [MAWU's attorney] and Schreiner that we are happy to listen
to them, but one of the pre-conditions is no open-ended
debate or discussions.
.... Every day that goes by, you are remanning the factory and his position is
getting weaker. He must come
with surrender terms."
Following a telex from MAWU to BTR requesting
the
latter to agree to the dispute between the
parties going direct
to the industrial court under sec 49(9)(d)of the Act,
there took
place on 12 September 1985 a telephone conversation between
Levy
and Sampson. Sampson noted the following reaction by ALA to
the telex
in question:-
"This is Brand's work, this telex. We don't mind fighting a lawyer but not one
who also behaves like a trade unionist. Group [to
which BTR belonged] should
take work away from Bowman. Gilfillan, Brand is a senior partner. We have every
right to expect him to
act ethically. The position is intolerable. Feeding the
hand that bites me."
The way has now been cleared for an exposition of
the
main events leading up to the application made
at a late stage
of the trial for the recusal of the second appellant.
22
On 26 May 1987 a one-day seminar was presented by ALA at the Sandton Sun
Hotel in Johannesburg. Advance notice thereof was given by
way of a printed
brochure and programme produced by ALA. The brochure invited enquiries and early
registration by intending delegates
to the seminar. The theme of the seminar,
the type of delegate contemplated, and the topics for study and discussion were
thus announced
in the brochure:-
"The New Labour Law - Management Perspectives
A one-day seminar for management and legal practitioners examining critical
developments in Labour Law, and covering strikes, dismissal
and the Unfair
Labour Practice."
The proceedings at the seminar
were to last from 08h00 to 16h30
with a lunch break and morning and afternoon
tea breaks.
According to the programme eight different papers were to
be
delivered. The first address and its author were thus
described:-
23
"Placing the Industrial Court in Perspective Adv P E Roux SC, Deputy President,
Industrial Court."
From the programme it further
appeared that of the remaining
seven papers four would be delivered
respectively by each of the
three advocates as well as by the attorney
representing BTR at
the trial.
The attorneys acting for MAWU at the trial were Bowman
Gilfillan Hayman Godfrey Incorporated. On 19 May 1987 Mr Brand
of that
firm addressed to the second appellant a telex the
relevant portion of which read as follows -
"As you know we act for Metal and Allied Workers' Union in the application for
an Unfair Labour Practice determination against BTR
SARMCOL currently being
heard by you.
Our client has seen a brochure advertising a seminar 'for Management and Senior
Legal Practitioners' on Labour Law. The conference
is to be held on the 26th May
1987 at the Sandton Sun Hotel. It is being 'presented' by Andrew Levy and
Associates. This firm, we
need hardly say, was retained to give industrial
relations advice on the dispute that is the subject of the litigation we have
referred
to, and the nature and propriety of its advice is pertinently in issue
in the proceedings. Other speakers at the seminar include
Messrs. McCall,
Wallis, Trollip and Giles, who comprise
24
the complete legal team of the Company. Finally, it seems that the seminar will
have a partisan quality, since only 'Management Prespectives'
are being
given.
Our client has instructed us to record its formal objection to your
participation in this Conference. The objection extends to your
acceptance of
the invitation to speak.
In the normal way we would not have communicated this objection by
correspondence, but merely in open Court. However, we felt that
it would be
wrong for our client not to let you have its objection before the Conference
takes place."
On 20 May 1987 the
second appellant responded by
sending the following telex to Brand:-
"I entertain not the slightest doubt that the legal representatives of the Metal
and Allied Workers Union would entertain any doubt
that by acceptance of the
invitation, nor of my addressing the Conference would or could in any way affect
either my objectivity
nor impartially in respect of the application for the
determination to which you refer.
If, however, you find that neither yourself nor your counsel whose advice I
would request you to obtain, would be able to convince
your clients of this
fact, then I am prepared to reconsider whether in the interest of justice being
seen to be done, I should refuse
to attend or address such
Conference.
25
Is the implication of your objection that I in future also consult you before I
and other members of the court address any other
conferences arranged at the
instigation of management which we may from time to time be requested to
address?
I would also request you to reconsider your objection, as the implications
thereof may not be as readily understood by the other
members of the court, who
unlike myself, are not members of the legal profession.
I might add that neither Mr Levy nor his associates are known to me. That both
the President of the court and I have been requested
to attend, and wish to
attend the Conference for the instructive value which we hope it may provide us
in the field.
Should you in the light of this telex see your way clear to withdrawing your
objection, I undertake (not that I consider that it
might have been necessary)
that no reference will be made directly to the case in which your clients are
involved."
Brand thereupon (the precise date being
unknown) telexed the
second appellant as follows:-
"You will appreciate that the objection was not raised by us personally, but as
the representatives of our client. We naturally were
asked by our client to
advise on this matter, as was counsel. We are sure you will accept that we and
counsel gave the matter the
most anxious consideration before coming to
the
26
conclusion we did.
We feel it would be wrong for us to make submissions about the merits of the
objection by telex. We should, record, however, that
the objection is confined
to the participation by you, as the presiding officer in the MAWU/SARMCOL case,
in this specific Conference
in the particular circumstances of this case.
We regret to inform you that our client does not withdraw its
objection."
To the last-mentioned
communication of Brand the second
appellant responded on 22 May 1987 with the following telex:-
"I have given careful thought to your client's objection.
In the rapidly evolving New Labour Dispensation, both the President and I, not
only welcome every opportunity presented to us to
attend conferences on labour
relations in order to expose ourselves to the instruction of others in this
field, but also because
they present us with the opportunity of informing others
of the function and role of the Industrial Court. In fact, we consider it
as
part of our duty to do so.
My presence in Pretoria is required during the week of 25 - 29 May 1987. I am
also not being compensated for my contribution which
is being made solely in the
interest of the Industrial Court. I am consequently in no way beholden to the
firm who arranged the
27
Conference, nor will I be in a position of informal association with SARMCOL's
representatives either before or after such Conference.
That the present Conference happens to have been arranged by a firm of labour
consultants, who at one stage were engaged by SARMCOL
in respect of the present
dispute, or that it eventually emerges that respondent's complete legal team are
also to be speakers at
such Conference, is entirely incidental and insufficient
reason to justify the perception that my objectivity and impartiality may
be
affected thereby.
My withdrawal from participation in such conference as a result of your client's
objection, may however give rise to unwarranted
inferences, or undesirable
assumptions which I consider should be avoided.
Should your clients, notwithstanding my assurances to the contrary, still
entertain any doubts that my judgment may have been, or
may still be affected by
the circumstances to which you refer, I am quite prepared at a later date,
should it be required of me to
allay any such
thoughts."
The exchange of telexes was brought to an
end by the following
telex transmitted on 25 May 1987 by Brand to the
second
appellant:-
"By raising its objection at the earliest possible stage, our client sought to
do no more than to give you an opportunity to reconsider
your participation in
the
28
Conference. We appreciate that you have now done this and affirmed your original
decision.
Our client notes your attitude and the reasons that underline it. Our client's
objection still stands, however, and it will be placing
this correspondence on
record at the renewed hearing of this matter."
The
cross-examination of Sampson began on 28 March 1987 and it continued on 1 April,
upon which date the trial was adjourned to 29
June. It was during this
adjournment that the exchange of telexes between Brand and the second appellant
in regard to the forthcoming
seminar took place. The seminar duly took place on
8 May 1987, and it was in fact attended and addressed by the second appellant
and the three advocates and the attorney representing BTR at the trial. All
eight papers delivered at the seminar formed part of
the review record placed
before the court a quo.
At the resumed hearing of the trial Sampson was
further
cross-examined on 29 - 30 June and on 1 July
1987 when his
evidence was concluded. At the trial MAWU was represented by Mr Brassey, who
later acted as its counsel both in the court a quo
29
and in the appeal before us. Before the IC adjourned on 1 July Mr Brassey
addressed the court in regard to the telexes which had passed
between Brand and
the second appellant during May 1987 ("the telexes"). While disavowing any
intention of making an application for
the second appellant's recusal at that
stage of the trial, Mr Brassey requested that the telexes should be "placed on
record"; and
he stated that he wished to note "an objection" in regard thereto.
Having regard to the somewhat equivocal stance adopted by counsel
for MAWU, some
discussion then ensued between the second appellant and counsel on both sides as
to the real purpose behind the introduction
of the telexes; and whether the only
proper course was not for counsel for MAWU to apply then and there for the
second appellant'
s recusal. The same discussion was continued on 2 July when,
after a little nudging, counsel for MAWU was prevailed upon to seek
more
explicit instructions from his clients. This counsel did during a short
adjournment. When (on the same day)
30
the hearing was resumed Mr Brassey informed the court that the
shop
stewards had had "a general meeting with the workers
present" and that
counsel had been instructed to make an
application for the recusal of the
second appellant. In
amplification thereof Mr Brassey said the
following:-
"The application is based on the fact that, by attending the conference in
question and addressing it, you gave a reasonable apprehension
of bias to a lay
person. Whether, in fact, you are biased or not is. Sir, irrelevant as a
foundation to this application."
In his argument in
support of the application for the second
appellant's recusal counsel
examined the terms of the telexes
and then made the following
submission:-
"....I understand the law to be that it matters not that you are, in your heart
or in your mind, wholly objective and impartial;
that what is significant, Sir,
is the appearance that your conduct gives to the reasonable lay person. My
submission in the circumstances
is that by identifying yourself in this way that
you have with this conference the impression conveyed, that might be reasonably
be conveyed to the reasonable lay person, is one of
bias."
When Mr Brassey had concluded his application
for recusal, the
31
second appellant enquired of Mr McCall, who led the advocates
appearing
for BTR at the trial, whether he wished to address the
second appellant in
regard to the issue of recusal. Mr McCall
replied that it would be
inappropriate for him to make any
submissions at all; that the decision lay with the second
appellant
himself; and "that we (counsel for BTR) in no way
seek to influence you."
After the IC had adjourned in order to reflect upon the
matter, the second appellant announced that after careful
consideration he had decided to refuse the application for his
recusal. He then proceeded to state his reasons for his
decision as follows:-
"The main reason for refusing is the situation that members of my Court are
constantly in positions where they attend conferences;
they are also in
positions where they have to give decisions against certain unions and have to,
on subsequent days, deal with cases
involving the same union. In other words,
members of the Industrial Court, unlike judges, are far more exposed to aspects
concerning
labour relations and that that is the perspective which the public
must enjoy of persons who man the Industrial Court and that they
are
32
therefore also persons who are attuned to disabusing their minds from extraneous
influences because they are required to do so in
the normal course of their
activities. A further reason which influences me is the fact that I have been in
close deliberations with
the two other members of this Court and it would appear
to me undesirable that a perception might exist at a later stage, should
a
decision be given in this case by the two other members which may possibly not
be favourable to the Union, that they were influenced
in their deliberations by
me and that the effect of having attended this conference and the extent to what
attending the conference
may have affected my objectivity and that I, in turn,
may have affected the two other members of the Court, this seems to me would
be
entirely undesirable. And the last reason for refusing the application is that I
am entirely convinced in my own mind that I have
in no way been influenced by
attending the conference or that I acted improperly in doing so. and I find it
unacceptable that any
of the gentlemen sitting in this Court, who have been
sitting here for weeks on end, could entertain any real thought in their hearts
that I might be biased by having attended that conference. If they have such a
perspective then I think it is an unreasonable one.
Thank you, Mr INTERPRETER,
will you interpret that."
Against the
background of the facts sketched above it
is convenient to deal with the merits of the appeal before us
by
considering (a) the precise nature of the complaint levelled by
MAWU
against the second appellant in support of the application
33
for his recusal at the trial; (b) what legal principles govern
an
application for recusal of such a nature; and (c) whether in
the light of the
relevant legal principles the court a quo came
to the correct conclusion on
the facts before it. Each inquiry
will be dealt with in turn.
(a)
The nature of MAWU's complaint against the second appellant:
In SA Motor Acceptance Corporation (Edms) Bpk v Oberholzer
1974(4) SA 808 (T) the judgment of the full court was delivered
by Joubert
J. The history of the exceptio suspecti judicis is
there traced from Roman times to modern South African law. At
810H in fin-811A the learned judge observes:-
"Ulpianus het reeds in D.2.1.10 die fundamentele 'n regsbeginsel neergele dat 'n
regterlike beampte behoort nie reg te spreek aangaande
homself, sy vrou, sy
kinders of diegene met wie hy horn assosieer nie (vel ceteris quos secum
habet)...."
The judgment contains a helpful review
of the Roman-Dutch writers on the subject of recusal. It cites (at 811 C-E)
Kersteman, Hollandsch
Rechtsgeleerd Woordenboek, s.v. reenters, who lists
34
the virtues associated with the judicial office and refers, inter alia to the
value of "onzydigheid". At 812 C-D Joubert J
remarks:-
"Dit is noodsaaklik dat die recusans sy exceptio recusationis fundeer op 'n
redelike oorsaak (justa causa recusationis) wat deur
hom bewys moet word Voet.
5.1.43. Volgens ons gemenereg is die toets wat aangewend moet word by die
beoordeling van die vraag of
'n exceptio recusationis behoort te slaag of nie
objektief van aard, naamlik of daar 'n redelike vrees bestaan dat die regterlike
beampte weens partydigheid, vooroordeel of enige ander erkende grond dalk 'n
uitspraak sal gee anders as wat hy regtens behoort te
gee. Sien, bv., Voet,
5.1.47....."
Stressing the requirement that the
impression of possible
unfairness must be reasonably created in the mind of
an applicant
for recusal, Joubert J proceeds to say (at 812 in fin) -
"Vandaar dan ook dat ons gemenereg nie onbenullige redes (frivolae causae) erken
as 'n redelike grond vir die rekusasie van 'n regterlike
beampte nie. Voet,
5.1.46. Hulle voldoen nie aan bogenoemde objektiewe toets
nie."
Later in his judgment the learned judge
proceeds to catalogue
35
some of the justae causae recusationis recognised by our common
law.
Relevant for present purposes is a reference by Gail,
Practicae
Observationes, lib. 1, obs 33, nr 1 (see 813A of the
judgment) to "puta
propter .... familiaritatem"; and an example
given by Damhouder, Practijcke
in Civile Saken, cap 125, nr 4 (at
813 A-B) -
"Item, als ick segge dat dien rechter ofte synen adjunct mynen vyand is, of ten
minsten eenen goeden familiaren vrient van mynen
vyand ende party, ende den
selven seer favorabel, dat hy met myn party woonende is in een huys, ofte dat
'er syn commensaal is ...."
In S v
Radebe 1973(1) 796 (A) Rumpff JA summed up the
position at common law thus (at 812 A-C):-
"Die algemene beginsel in die Romeins-Hollandse reg is duidelik en bevat die
grondreël dat niemand in sy eie saak Regter kan
wees nie. Uit die geskrifte
van die skrywers en sekere wetgewende bepalings blyk dit dat by die toepassing
van hierdie grondreel
h Regter by die beoordeling van 'n saak uitgesluit word
wanneer nie alleen eie belang, maar ook 'n neiging of gesindheid ten opsigte
van
een van die partye, horn anders sou kon laat oordeel as wat die onpartydigheid
eis, sodat daar rede bestaan, nieteenstaande die
Regter se eie voorneme, om vir
partydigheid aan sy kant te vrees. Merula, Manier van Procederen, 4.4, verwys na
twee
36
hoofgronde waarop 'n Regter gevra kan word om te rekuseer, nl. onbevoegdheid en
omdat hy 'suspect' is, d w s dat hy onder verdenking
staan van moontlike
partydigheid, en hy noem sekere voorbeelde ...." (Emphasis
supplied).
See further: Dairy Board v Imperial Cold
Storage and Supply Co Ltd
1977 (3) SA 659
(A) at 669B-F.
Kersteman, op cit., s v Recusatie p 406 states that an
objection will readily be entertained if it be proved that the
judge
concerned was suspected of enmity, corruption, relationship
by consanguinity
or affinity:-
" of dat 'er geprobeert kon worden dat zulk een
gesuspecteerde Rechter het Proces enigermate betrof, en derhalven meer of min by
die triumphe van de Partye geinteresseert waare
...."
In the light of these
authorities it is clear that
the complaint on which MAWU relied in seeking the recusal of
the second appellant belongs to a category well recognised by our
common law. The suspicion of bias assailing the minds of the
members of MAWU was simply that, in all the circumstances of the
37
case, by attending and addressing the seminar held on 26 May 1987 the second
appellant had so associated himself with one of the parties
to the trial being
heard by him as reasonably to create an impression of a leaning or inclination
on his part towards one side in
the dispute; an impression of a predisposition
to favour one of two opposing viewpoints. Manifestly that was the causa
suspiciendi.
By way of practical illustration there may be used the following
example cited by counsel for the respondents of a situation which
might arise
during the proceedings at the seminar. It was said that during a break for lunch
or tea, and in the hearing of the second
appellant, a delegate could make a
pointed remark bearing upon the very issues in the IC proceedings over which the
second appellant
was then presiding; and that, albeit subconsciously, he could
be influenced thereby. There is no evidence to indicate the tenor of
the
informal discussions at the seminar to which the second appellant might have
been privy, and the example is a purely speculative
one. It seems to me,
38
nevertheless, that an outsider with knowledge of the nature of the seminar
and the second appellant's participation therein might
not unreasonably harbour
the suspicion of the occurrence of some such incident.
(b)
The relevant legal principles:
Neither at the trial nor during
the review proceedings in the court a quo was it suggested by counsel for MAWU
that the second appellant
had displayed actual bias in the sense that he had
approached the issues before him with a mind which was in fact prejudiced or not
open to conviction. Any such allegation was specifically disavowed. This case is
concerned not with actual bias but with the outward
appearance of bias. For
present purposes there may be adopted the definition of "bias" stated in the
House of Lords by Lord Thankerton
in Franklin v Minister of Town and Country
Planning
(1948) AC (HL) 87
at 103. It was there said that the proper
significance of the word -
39
"....is to denote a departure from the standard of even-handed justice which the
law requires from those who occupy judicial office
or those who are commonly
regarded as holding a quasi-judicial
office...."
For many years the
decisions of the courts, both in
South Africa and in England, have reflected a difference of
judicial
opinion in regard to the proper test to be applied in
recusal cases involving
the appearance of bias. In R v
Liverpool City Justices, ex parte Topping
(1983) 1 A11 ER 490
(QBD) the problem is thus succinctly stated (at 494 E-F) by
Ackner
LJ:-
"Must there appear to be a real likelihood of bias? Or is it enough if there
appears to be a reasonable suspicion of
bias?"
A moment's reflection must
show, so I consider, that
these two tests involve very different critieria. The
essential
connotation of the word "likelihood" is that of probability.
In the present context the word signifies that there is a
stronger than fifty per cent prospect that the contemplated
state of affairs will eventuate. The phrase "real likelihood"
40
reinforces that meaning. On the other hand the criterion of a
"reasonable suspicion" necessarily imports a less exacting test.
In Duncan
v Minister of Law and Order 1986(2) SA 805(A) this
court (at 819 H-I)
approved the following remarks by Lord Devlin
in Shaaban Bin Hussien and Others v Chong Fook Kam and Another
(1969) 3 A11 ER 1626 (PC) at 1630:-
"Suspicion in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; 'I suspect, but I cannot prove'. Suspicion
arises at or near
the starting point of an investigation of which the obtaining of prima facie
proof is the end."
(See further: Francis George Hill
Family Trust v South African
Reserve Bank and Others 1990(3) SA 704(T) at 711
F-G).
Notwithstanding these logical considerations the
inherent difference between the two tests has not always been
observed by
the courts. A discussion of this problem is to be
found in a recent judgment of a full court (Friedman, Howie and
Conradie
JJ) of the Cape Provincial Division in Mönnig and Others
v Council of
Review and Others 1989(4) SA 866 (C). This judgment
41
(to which reference will hereafter be made as "the full court
judgment")
was delivered by Conradie J. The confusion in
judicial thought betrayed by a
failure to distinguish between the
"real likelihood of actual bias" test on the one hand and the
"reasonable suspicion of bias" test on the other hand is
summarised by
Conradie J (at 877H) in the following words:-
"Both in England and in South Africa these two tests for bias were sometimes
clearly perceived by the Courts to be essentially different,
sometimes dimly
perceived to be different and sometimes thought to be reconcilable and thus not
essentially different at all."
I am unable to
improve upon the instructive review undertaken (at 876 B - 879 G) by Conradie J
in which the South African and English
decisions in point are subjected to
critical analysis. Suffice it to record my general agreement with the comments
of the learned
judge; and, more in particular, to indicate my respectful
endorsement of his view that the oft-quoted passage from the judgment of
Lord
Denning in Metropolitan Properties Co (FGC) Ltd v Lannon and Others (1968) 3 A11
ER 304
42
(CA) at 310 A - D (which passage is cited at 878 A-C of the full
court judgment):-
"....mixes up terminology appropriate to the 'real likelihood of bias in fact'
test with that usually employed in expressing the
'reasonable suspicion
test.'"
It is necessary, however, to set forth at
some length the
conclusion to which Conradie J was impelled by his survey of
the
authorities (at 878 H 879 E):-
"Baxter Administrative Law at 560 suggests that the 'real likelihood' element of
the test is 'a qualification designed to exclude
fanciful suspicions....', and
that the test for South African law could be formulated as
follows:
'Disqualifying bias will be
found to exist
where the reasonable lay observer would gain
the impression
that there is a real
likelihood that the decision maker will
be
biased.'
I do not believe that this test correctly states
the
present South African law. Our Courts have not, in
the last 20 years
or so, regarded it as necessary for
disqualifying bias to exist that a
reasonable observer
should suspect that there was a real likelihood
of
bias; provided the suspicion is one which might
reasonably be
entertained, the possibility of bias
where none is to be expected serves to
disqualify the
decision maker.
43
RUMPFF CJ in S v Radebe .... at 812 A was content to adopt Lord Denning's
formulation of the test for bias as correctly stating the
English law. He did
not, as I read the judgment, approve that formulation for South African law. The
learned Chief Justice's investigation
into the Roman-Dutch law of recusal shows
that system to be free from the semantic difficulty created by the 'real
likelihood' formulation
or the 'reasonable suspicion' test: a Judge should
recuse himself if there is reason to fear partiality on his
part. (At 812 B-C)..................................
Our Courts have not in recent times applied the 'real
likelihood of bias'
test. Since Lannon's case was
decided, the passage from Lord Denning's
judgment which
I have cited above has been quoted in South African
Courts
with approval; but it is the expression of
policy therein which our Courts
have approved, not the
formulation of test in terms of a 'real likelihood
of
bias'
(The reference to MR JUSTICE RUMPFF in connection with the Radebe-judgment
should read "RUMPFF JA".)
In due
course the full court judgment came before this
court on appeal. The judgment of this court ("the AD judgment")
was
delivered on 15 May 1992 by Corbett CJ (see: Council of
Review, South African
Defence Force, A K DE Jager NO, M Dempers
NO v H J Mönnig and Two
Others, as yet unreported.) Certain
44
passages in the AD judgment bear directly on the issue here under discussion.
In order to put them in perspective a brief summary
of the essential facts in
that case as well as of the ratio of the full court judgment is
necessary.
The three respondents in the appeal were national servicemen in
the South African Defence Force ("the SADF"). They were charged with
having
conspired to disclose protected information to unauthorised persons. They were
tried, convicted and sentenced before an ordinary
court martial presided over by
a colonel (the third appellant in this court). The convictions and sentences
were confirmed by the
convening authority, a brigadier (the second appellant in
this court). The first appellant was the council of review which confirmed
the
convictions but reduced the sentences. For the sake of brevity I shall refer to
the serviceman who was the second respondent
in this court as "the accused." In
the proceedings before the court martial the accused raised the defence of
justification.
45
He contended that the SADF had covertly waged an unlawful campaign of
harassment and vilification against the End Conscription Campaign
("the ECC");
and that he had acted in defence of the rights of the ECC by using such
reasonable means as were open to him to prevent
harm to the ECC. At the court
martial the accused had applied unsuccessfully for the recusal of the court
martial on the grounds
that it could not hear the case without there being a
reasonable suspicion of bias on its part. The burden of the accused's argument
was that since the court martial was composed of senior SADF officers it would
be placed in an invidious position: In order to determine
the issues raised by
the defence of justification it would have to pass judgment on the legality or
otherwise of the conduct and
policies of the SADF.
In terms of sec 107 of the Defence Act 44 of 1957 an application for the
review of the findings of the third, second and first appellants
was launched on
behalf of the three
46
convicted servicemen in the Cape of Good Hope Provincial
Division. The
review was heard by a bench consisting of the
three judges aforementioned.
Hence the full court judgment.
In the review proceedings it was argued on behalf of the
servicemen, inter alia, that the court martial should have
acceded to the
accused's application for recusal. That
contention was upheld by the full
court. It set aside the
proceedings and decisions of the court martial, the
convening
authority and the council of review.
For present purposes the reasoning adopted by the full
court appears sufficiently from the following three passages in
the
judgment of Conradie J. At 880 E-G the learned judge said:
"Since the appearance of impartiality has to do with the public perception of
the administration of justice, it is only to be expected
that some tribunals
will be more vulnerable to suspicion of bias than others. The most vulnerable, I
venture to suggest, are tribunals
-other than courts of law - which have all the
attributes of a court of law and are expected by the public to behave as a court
of
law does. The court martial is, of course, such a tribunal. In fact it is the
only tribunal I know of, apart from a court of
law.
47
which is competent to impose criminal sanctions. It is, to all intents and
purposes, a court which may be presided over by
laymen."
Having outlined the accused's defence
Conradie J remarked (at 881
D-E):-
What would an informed independent observer - or a litigant himself - reasonably
think about the impartiality of the court martial?
I consider that such an
observer would think to himself that the tribunal - composed as it was of
high-ranking senior SADF officers
- was being placed in an intolerable
situation. It was being asked to pronounce upon the propriety of a highly
sensitive project,
which had been initiated and was being directed by top
Defence Force officers (among them the second
respondent)."
And again at 881 H-I:-
"Moreoever, bias is not only conscious but also subconscious, and in my view a
reasonable person in the position of second applicant
could reasonably have
thought that the risk of an unfair determination on an issue such as this was
unacceptably high."
The appeal against
the full court judgment was
dismissed with costs by this court. Of significance in the
determination
of the issue now under discussion are the following
passages in the judgment
of Corbett CJ at pages 14-16 of the
48
typewritten judgment:-
"In S v Malindi and Others
1990 (1) SA 962
(A), at 969 G-I, this Court summed up
the rule as to recusal, as applied to a judicial officer, as
follows:
'The common law basis of the
duty of a
judicial officer in certain circumstances to
recuse himself was
fully examined in the
cases of S v Radebe 1973(1) SA 796 (A) and
South
African Motor Acceptance Corporation
(Edms) Bpk v Oberholzer 1974(4) SA 808
(T).
Broadly speaking, the duty of recusal arises
where it appears that
the judicial officer
has an interest in the case or where there is
some
other reasonable ground for believing
that there is a likelihood of bias on
the
part of the judicial officer : that is, that
he will not adjudicate
impartially. The
matter must be regarded from the point of
view of the
reasonable litigant and the test
is an objective one. The fact that
in
reality the judicial officer was impartial or
is likely to be impartial
is not the test.
It is the reasonable perception of the
parties as to his
impartiality that is
important.'
It may be that this formulation requires
some
elucidation, particularly in regard to the meaning of
the word
'likelihood' : whether it postulates a
probability or a mere possibility.
Conceivably it is
more accurate to speak of 'a reasonable suspicion
of
bias'. Suspicion, in this context, includes the idea
of the mere
possibility of the existence present or
future, of some state of affairs
(Oxford English
49
Dictionary, sv 'suspicion' and 'suspect'); but before the suspicion can
constitute a ground for recusal it must be founded on reasonable
grounds.
It is not necessary, however,
to finally decide these
matters for, whatever the correct formulation may be,
I
am satisfied that the court a quo was correct in
holding that the court
martial did not pose the correct
test when deciding the recusal issue (see
reported
judgment at 875 J - 876 B); and that the circumstances
were such
that a reasonable person in the position of
second respondent could
reasonably have thought that:-
'....the risk of an unfair determination
on
an issue such as this was unacceptably high'.
(See reported judgment at
881 H-I.)"
As will appear from what is said under the last heading in this judgment, on
my view of the facts it is necessary for the purposes
of this appeal to decide
what the proper formulation of the test is for disqualifying bias. For the
reasons which follow I conclude
that in our law the existence of a reasonable
suspicion of bias satisfies the test; and that an apprehension of a real
likelihood
that the decision maker will be biased is not a prerequisite for
disqualifying bias.
In my opinion the statement in the full court judgment
50
(at 879 A-B) that -
"....provided the suspicion is one which might reasonably be entertained, the
possibility of bias where none is to be expected serves
to disqualify the
decision maker...."
fairly reflects the recent trend
in South African judicial
thought, and I would approve it. It seems to me
further that
the test so enunciated is logical and fully in accord with
sound
legal policy. I consider that those very objects which
the
"reasonable suspicion test" are calculated to achieve are
frustrated
by grafting onto it the further requirement that the
probability of
impartiality must be foreseen. A cogent argument
against the "nested test"
propounded by Baxter, Administrative
Law at 560, is advanced by Professor E
Mureinik in a note (Annual
Survey of SA Law 1989 at 504 - 5) on the full
court judgment.
The learned author writes:-
"To investigate the probability of bias, even though governed by the requirement
of reasonable apprehension, would take the courts
back into the kind of
speculative inquiries that the focus on appearance is calculated to obviate. If
the party challenging the decision-maker
51
claims to have a reasonable apprehension of bias, the question arises, under the
nested test, whether the bias apprehended is merely
possible or really possible
or really probable. To answer that question may well take the court directly
into the mind of the decisionmaker,
and compel it to make judgments about his or
her probity, and his or her willingness and ability to exclude the influence or
interest
or prejudice from the operative thought processes. These are precisely
the kinds of judgments that an appearance-orientated approach
is designed, and
wisely designed, to spare the court. If the point of the nested test is to
exclude trivial objections, that is achieved
perfectly adequately in the
reasonable apprehension test by the requirement of
reasonableness."
As a matter of policy
it is important that the public
should have confidence in the courts. Upon this social order
and security
depend. In Rex v Chondi and Another
1933 OPD 267
Krause JP made the following
observations (at 271) which in this
country are as pertinent now as they were
some sixty years ago -
"It is a matter of the gravest public policy that the impartiality of the Courts
of Justice should not be doubted, or that the fairness
of a trial should not be
questioned; otherwise, the only bulwark of the liberty of the subject, in these
times of revolutionary tendencies,
would be
undermined."
It is the right of the public to have
their cases decided by
52
persons who are free not only from fear but also from favour. In the end the
only guarantee of impartiality on the part of the courts
is conspicuous
impartiality. To insist upon the appearance of a real likelihood of bias would,
I think, cut at the very root of the
principle, deeply embedded in our law, that
justice must be seen to be done. It would impede rather than advance the due
administration
of justice. It is a hallowed maxim that if a judicial officer has
any interest in the outcome of the matter before him (save an interest
so
clearly trivial in nature as to be disregarded under the de minimis principle)
he is disqualified, no matter how small the interest
may be. See in this regard
the remarks of LUSH J in Sergeant and Others v Dale (1877) QBD vol 2 558 at 567.
The law does not seek,
in such a case, to measure the amount of his interest. I
venture to suggest that the matter stands no differently with regard to
the
apprehension of bias by a lay litigant. Provided the suspicion of partiality is
one which might reasonably be
53
entertained by a lay litigant a reviewing court cannot, so I consider, be
called upon to measure in a nice balance the precise extent
of the apparent
risk. If suspicion is reasonably apprehended then that is an end to the matter.
I find myself in complete agreement
with what was forcibly stated by Edmund
Davies LJ in the Metropolitan Properties case (supra) at 314 C-D:-
"With profound respect to those who have propounded the 'real likelihood' test,
I take the view that the requirement that justice
must manifestly be done
operates with undiminished force in cases where bias is alleged, and that any
development which appears to
emasculate that requirement should be strongly
resisted."
(c)
Did the court a quo come to the
correct conclusion on the facts?
In seeking to apply the law to the facts
there must steadily be borne in mind the cardinal precept of our common law
already mentioned:
The exceptio recusationis requires an objective scrutiny of
the evidence. The test to be applied
54
therefore involves the legal fiction of the reasonable man -someone endowed
with ordinary intelligence, knowledge and common sense.
That the test prescribed
is an objective one, however, does not mean that the exceptio recusationis is to
be applied in vacuo, as
it were. The hypothetical reasonable man is to be
envisaged in the circumstances of the litigant who raises the objection to the
tribunal hearing his case. It is important, nevertheless, to remember that the
notion of the reasonable man cannot vary according
to the individual
idiosyncracies or the superstitions or the intelligence of particular
litigants.
The facts have been set forth in some detail in the earlier part of this
judgment. With a view to determining whether MAWU discharged
the onus of
establishing a disqualifying bias, those facts in my view represent a difficult
borderline case. It is not surprising
that with reference to the second
appellant's attendance at the seminar the learned judge in the
55
court below acknowledged -
"It was far from clear to me that even lawyers would agree about what was proper
to do in a situation like this."
In
this court the case for BTR was argued by Mr Wallis,
while Mr Gauntlett argued the appeal on behalf of the second,
third and
fourth appellants. Both counsel urged upon us that in
a case such as the
present it should be required of an applicant
seeking recusal explicitly to
state his fear or suspicion of bias
on the part of the judicial officer
concerned; or, at any rate,
that the existence of such a fear or suspicion on
the part of the
applicant should be manifest from the circumstances. It was
said
that this requirement had not been satisfied. Since the test to
be
applied is an objective one, this contention appears to me to
be of doubtful
validity. It is, however, unnecessary to say
anything more on the point. In my opinion it would be difficult
to imagine a case in which a suspicion of bias harboured by an
applicant was ever more clearly manifested. The telexes sent
56
by Brand speak for themselves. Those telexes were followed up by a formal
application for recusal after a meeting of the shop stewards,
attended also by
other members of MAWU, had specifically instructed MAWU's legal advisers to
apply for such recusal.
Mr Wallis advanced the further submission, albeit
somewhat gingerly, that the objection embodied in Brand's telexes was not
genuinely
entertained by MAWU; and that the telexes were simply part of a
strategy whereby MAWU hoped to rid itself of a court whose composition
was not
to its liking. Now it may well be that MAWU would have preferred a trial before
an industrial court otherwise constituted.
But the submission (put forward for
the very first time on appeal) that the complaint voiced in Brand's telexes was
not genuine is
entirely unsupported by the evidence and runs completely counter
to the probabilities.
Relying upon the dictum in S v Malindi and Others (supra) Mr Wallis submitted
that MAWU had not surmounted the
57
hurdle of establishing the likelihood of partiality on the part of the second
appellant. I am disposed to agree with that submission.
Making full allowance
for all the circumstances attendant upon the trial, I am unable to conclude that
a lay litigant in the position
of MAMU, or any of its members, could reasonably
have formed the impression on the strength of his attendance at the seminar that
there existed a probability that the second appellant, whether consciously or
subconsciously, would be partial to the cause of BTR.
Mention has already been made of the fact that before the court a quo there
were all the papers delivered at the seminar. It is common
cause that these were
all innocuous and unexceptionable. As part of his argument Mr Brassey advanced,
as a "tentative generalisation",
that the second appellant's attendance at the
seminar served to signify his approbation both for the speakers thereat and for
the
organisers thereof. This argument seems to me to be quite unsound. I cannot
accept that
58
any such outward image could reasonably be projected by the
second
appellant's attendance and participation at the seminar.
It is not clear whether in deciding that the second
appellant should have recused himself the court a quo applied the
"real likelihood of bias" test or the "reasonable suspicion of
bias" test.
There are passages in the judgment which suggest
that the learned judge may
have invoked the former. One such
passage in his judgment reads as
follows:-
"One looks at the matter from the point of view or the perspective of the
ordinary lay litigant, in the position of the particular
litigant with whom one
is concerned. One asks whether he reasonably fears in all the circumstances the
likelihood, not the mere possibility
of bias."
On
the other hand there are statements in the judgment which tend
to indicate
that in the context of the test which he was applying
the learned judge employed the phrase "real likelihood" to
signify no more than "reasonable apprehension." This
possibility derives
some support from the following remarks by
Didcott J:-
59
"If I say that I have a reasonable apprehension of my house burning down, the
apprehension is surely reasonable only if what I perceive
is a real prospect of
its burning down, not if I perceive some remote or fanciful prospect. In short,
there must surely be a real
likelihood perceived before the perception of it can
be regarded as reasonable."
It is unnecessary,
however, to delve further into the matter of
what test was actually applied
by the court a quo. I have
already stated my view that the facts do not
satisfy the "real
likelihood of bias" test. But I have also held that it is the
wrong test
to apply. For the reasons which follow I conclude
that the facts of the matter are strong enough to meet the less
exacting
requirements of the "reasonable suspicion of bias" test
which should in fact
be applied. Whatever the precise route
followed by the learned judge in the court below, I am satisfied
that he reached the correct destination.
Both Mr Wallis and Mr Gauntlett called attention in the
course of their arguments to what they submitted were
imperfections in the reasoning of the court a quo. It was said
60
that the learned judge had exaggerated the duration of the
seminar (wrongly described in the judgment as having taken place
over a
weekend); and that he used language rather too colourful
("untoward hobnobbing" by the second appellant with ALA at the
seminar) in seeking to describe what Impression a lay litigant
would have
gained from the stark fact that the second appellant
attended and spoke at
the seminar. There is some force in this
last criticism. But I do not consider that it represents a
serious blemish in the reasoning of the court below. A further
(and valid) criticism is that the learned judge overstated the
role of ALA
in the dispute between the parties by describing ALA
as somebody -
"....involved to a very substantial degree in that litigation..."
whereas ALA had no part in the litigation at all. The fact
remains that ALA had played a crucial role in the events leading
up to the trial; and in shaping the disputes which ultimately
occupied the attention of the industrial court. In the eyes of
61
MAWU's members and officials, ALA was in the camp of the enemy.
Crucial to a determination of the issue is the nature
of the dispute at the trial. In the judgment of the court below
this
factor is aptly described by the learned judge in the
following words:-
"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 tern, 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
62
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."
Stressing that the case before him was neither
easy
nor clear Didcott J ultimately came to the
conclusion that the
average lay litigant in the position of MAWU and its
members
would have felt that by his participation in the seminar
the
second appellant was displaying too great an association with
ALA
-
"And I believe that this would have been felt strongly enough in reasonable
minds .... steeped in the situation which existed and
therefore sensitive to
that situation, to have amounted to an apprehension of
bias."
Having given anxious consideration to all the
facts of the case
it seems to me that the court a quo correctly came to the
above
conclusion; and that the appeal must fail.
63
It will be recalled that MAWU and Dladla were granted leave by Didcott J to
cross-appeal against that part of the order awarding them
limited costs instead
of the costs of the whole review application. In the event no argument was
directed by Mr Brassey to the cross-appeal.
In my view no good ground exists for
disturbing the abovementioned discretionary award of costs made by the court a
quo.
For the aforegoing reasons both the appeal and the cross-appeal are
dismissed with costs, such costs in each case to include the costs
consequent
upon the employment of two counsel. The attention of the taxing master is
directed to the fact that no argument was directed
to this court in regard to
the cross-appeal.
G G HOEXTER, JA
MILNE JA )
KUMLEBEN JA )
F H GROSSKOPF JA ) Concur
GOLDSTONE JA )