REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2013-07424
(1) RE PO RTA BLE: YES/~
(2) O F INTEREST J.Q.. O T~ JUDGE S:@ t NO
(3) RE VIEWED :((§JNO
14 August 2025
DATE
In the m atter betw een:
MASHAYA: JABU KHANYISILE
And
TRANSNET LIMITED
Raubenheimer AJ:
JUDGMENT
Applicant
R espondent
2
Introduction
[1] The matter was allocated to me in civil trial court for hearing on 12 August
2025. When the legal representatives of both parties attended at my chambers
before commencement of the proceedings on 12 August 2025 I disclosed to the
parties that counsel for the plaintiff was my mentor during my pupillage at the
Johannesburg Society of Advocates during 2005. I furthermore disclosed to the
legal representatives that the instructing attorneys for the plaintiff briefed me
during the early years of my practice but that I have not received any briefs from
them in the last 15 years.
[2] After disclosing the mentioned facts to the parties, counsel for the defendant
indicated that she needed to obtain instructions from her instructing attorney and
that that she will after obtaining such instructing act accordingly.
(3] On commencement of the proceedings counsel for the defendant informed
me that she holds instructions to proceed with an application for my recusal based
on the mentor mentee relationship w ith counsel for the applicant and the erstwhile
professional relationship with the instructing attorneys for the plaintiff.
[4] Counsel for both parties addressed me in court on the recusal application. I
regarded it prudent to request the parties to prepare heads of argument on their
respective positions. I adjourned the matter to 13 August 2025 to afford the parties
to prepare heads of argument.
(5] I received the heads of argument of the parties before commencement of
court proceedings on 13 August 2025. The parties proceeded with presenting
their arguments on 13 August 2025.
The submissions by the applicant
[6] The applicant based its application on a reasonable apprehension of bias
based on the following facts:
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6.1 The relationship that existed between counsel for the plaintiff and
myself during pupillage;
6.2 The fact that I was briefed by the instructing attorney for the plaintiff
at the commencement of my practice at the Johannesburg Society
of Advocates.
[7] When the matter was argued on the 13th of August the applicant raised an
additional basis namely due to the fact that counsel for the plaintiff used words
unbecoming of an advocate during his address to the court and was not
reprimanded by me was in and off itself sufficient to create a perception of bias.
Discussion
[8] Bias has been defined as denoting "a state of mind that is in some way
predisposed to a particular result, or that is closed with regard to particular
issues.•'1
(9] Judicial bias is regarded as "a departure from the standard of even-handed
justice which the law requires from those who occupy judicial office."2
[1 OJ Bias thus amounts to "a leaning, inclination, bent or predisposition towards
one side or another or a particular result'. In its application to legal proceedings,
it represents a predisposition to decide an issue or cause in a certain way that
does not leave the judicial mind perfectly open to conviction. Bias is a condition
or state of mind which sways judgment and renders a judicial officer unable to
exercise his or her functions impartially in a particular case. "3
(11} The criteria for an application based on a reasonable apprehension of bias
1 S v Le Grage 2009 (2) SA 434 (SCA ). R v S (RD ) [1997] 3 SC R 484
2 S v Le G range (n 1 above). S v R oberts 1999 (4) SA 915 (SCA )
3 R v S (n 1 above)
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is trite and has been pronounced by courts on numerous occasions.
[12] The Supreme Court of Appeal rejected the more subjective test of
"reasonable suspicion" in favour of the more objective "reasonable apprehension"
test.4 This test was more in alignment with developments in other Commonwealth
countries5 and with the purpose "to protect the judiciary against the flimsy and
unreasonable suspicions of the litigant"
[13] The test is a constitutional matter and is rooted in the right to a fair trial. It is
regarded as a "double reasonableness6' test as both the person apprehending
and the apprehension must in itself be reasonable.
[14] The bedrock of the test is the presumption of impartiality7 which is
foundational to the nature of the judicial function and is to be assessed within the
context of the oath of office judicial officers are required to take. 8
[15] The presumption of impartiality if furthermore strengthened by the
assumption that judicial officers through their training and experience has the
ability to adhere to their oath of office and to disabuse their minds of any irrelevant
personal beliefs and predispositions. 9
[16] Judicial officers are required by the Constitution to apply the law impartially
and without fear, favour or prejudice.10 The presumption of impartiality has the
effect that a judicial officer will not lightly be presumed to be biased.
[17) In considering an application for recusal a judicial officer should be mindful
4 BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union 1992 (3) SA 673 AD
5 Porter v Magill [2002] 2 AC 357 (HL). Ebn er v Official Trustee in Bankruptcy [2000) 205 CLR 337. WSSA v
SYH CAMP388/2023, (2024 H KCA 735. Chretien v Canada (Attorney General),(2005 FC 925, (2005),
276 F.T.R 138 (FC)
6 SACCAWU v Irvin & Johnson Ltd Seafoods Division Fish Processing 2000 (3) SA 705 (CC)
7 President of the Republic of South Africa v South African Rugb y Football Union 1999 4 SA 14 7
(CC) S v Le Grange (n 1 above). Mulaudzi v O ld Mutual Insurance Co Ltd [2017] ZASCA 88;
2017 (6) SA 90 (SCA). Sizani v Mpofu (2017] ZAECGHC 127
8 Berneri v ABSA Bank Ltd 2011 (3) SA 92 (CC)
9 Berneri v ABSA {n 8 above)
10 Sect 165(2) Co nstitution of the Republic of South Africa, 1996
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of his duty to adjudicate matters that he has been allocated with and should not
yield to easily to a recusal application that is unreasonable and unsubstantiated.11
This will amount to a disservice to the administration of justice. Litigants do not
get to pick their judges of choice neither are they entitled to eliminate judges
randomly allocated to their case by raising spurious partiality allegations against
a judge.12 To step aside on the basis of spurious claims of partiality would lend
credence to the most objectionable tactics.13
[18] For an allegation of judicial bias to be successful such allegation must
overcome the presumption of judicial impartiality and integrity .14 This shoulders
the applicant with a formidable burden.15 Apart for not being easy to dislodge16
this burden requires the presentation of cogent and convincing evidence or
reason to rebut the presumption of judicial impartiality.17 In the evaluation of this
evidence the totality of the circumstances should be considered.18
[19] The application of the double reasonableness test entails that not only must
the apprehension be reasonable but the person holding the apprehension should
also be reasonable.
[20] The starting point in the application of the test is "the reasonable, objective
and informed person" having the correct facts. 19
[21] This person differs from the affected litigant. 20 He or she is fully aware of the
facts of the case, has an understanding of the role of the judge in the case and
11 P resident of the RSA v SARFU (n 7 above)
12 Benert v ASSA Bank (n 8 above)
13 Beard Winter LLP v Shekdar [2016) ONCA 493 (CanLII). Miracle v Maracle Ill [2017] ONCA 195 (CanLII)
14 H v S H (Judgment iro Recusal ; Extempore) (44450/2020) (2023) ZAGPJHC 1431 (27 October 2023).
Malton v Attia [2016] ABCA 130 (CanLII) par 82: R v GRS [2018) ABQB 4 (CanLII) par 5.
15 Benert v ABSA Bank (n 8 above). SL v Marson [2014] ONCA 510 (CanLII) par 24-29; Lloyd v Bush [2017)
ONCA 252 (CanLII) par 113.
ONCA 252 (CanLII) par 113.
16 H v S H (n 14 above) Cojocaru v BC Women's H ospital and Health Centre (2013) 2 SCR 357
17 R v S (n 1 above) par 34 S v SS H (2017) 3 NR 871 (SC) Wewaykum Indian Band v Canada [2003] 231
DLR (4th) 1 par 59; President of the RSA v SARFU 2 (n 7 above) par 41; S v Sasson 2007 (3) SA 582
(CC) par 30; Ch ristian v Me tropolitan Life Namibia Retirement Annuity Fund [2008) 2 N R 753 (SC) par
32; S v Munuma (2013] 4 NR 1156 (SC) par 17.
18 R v JCS [2017] BCCA 87 (CanLII) par 44.
19 President of the RSA v SARVU (n 7 above)
20 R v Millar (2017] BCSC 323 (CanLII) par 24; Stein v BC (Human Rights Tribunal) [2018) ABQB 399 (CanLII)
par 153. •
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whether the judge could be seen as having an interest in the outcome of the
case. 21 This person is a disinterested observer who considers both sides of an
argument, is not unduly sensitive or suspicious, is not complacent, are aware of
the weaknesses of mankind, will not evade arriving at a conclusion that can
objectively be justified and takes the necessary steps to become informed of the
relevant aspects.22.
Application
[22] The first ground advanced by the applicant for the existence of an
apprehension of bias is that the counsel for the plaintiff served as the mentor for
the presiding judge.
[23] In determining whether this factor would reasonably be perceived by the
reasonable objective and informed observer as establishing a reasonable
apprehension of bias cognizance must be taken of the following factors:
[24] The nature and level of involvement in the mentorship relationship. The
relationship between a pupil advocate and his mentor is a formal relationship,
professional in nature and of short duration. It is focussed on the transfer of legal
skills and acumen. It differs substantially a deep personal and structured
mentorship spanning many years and entailing a substantial personal investment
and guidance on personal and character development. The relationship does not
raise to a level of personal loyalty and affection with the possibility of an enduring
power imbalance.
[25] How recent was the mentor mentee relationship and is it ongoing in nature.
The particular relationship occurred twenty years ago and has not risen to the
level of an enduring personal friendship. The connection between the erstwhile
mentoring partners are more tenuous and sporadic.
21 Porter v Magill (n 5 above)
22 A lmazeed i v Penner [2018] UKP C 3
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[26] Are there a logical connection between the erstwhile relationship and the
current case. According to the practice note filed the matter is to proceed on
quantum only as merits have been disposed of in terms of a judgment dated 25
September 2019. The evidence to be presented is primarily expert evidence
dealing with the injuries and their sequelae.
[27] The second ground raised by the applicant is that the instructing attorney for
the plaintiff briefed the presiding judge at the commencement of his practice.
[28] In the evaluation of this ground the nature and duration and recency of the
relationship is to be considered. The judgment in Democratic Alliance V
Johannesburg City23 offers some instructive insights namely:
"Practising advocates and attorneys make up the bulk of the acting judiciary.
It is near inevitable that an acting judge will, sooner or later, preside over
matters involving parties they have represented or acted against as legal
practitioners. Most litigants-especially those who use the courts frequently
as the DA and the City-know this. They also know that when a legal
practitioner takes up an acting appointment, they leave the adversarial role
behind, and are presumed to be impartial merely by virtue of their acting
appointment
[29] The relationship between the plaintiff's instructing attorney and the presiding
judge was a professional relationship which terminated approximately fifteen
years ago and has the presiding judge not been briefed in his capacity as a
practising advocate since then.
[30] The existence of a current professional relationship does not warrant recusal
unless there is a direct past association with the litigation.24
[31] The third ground raised by the applicant in support of the reasonable
23 2025 (3) SA 204
24 Bernert v ABSA Bank (n 8 above)
8
apprehension of bias was the fact that counsel for the plaintiff used the word
"ludicrous" in his response to the application. It was submitted that the use of this
word is unbecoming an advocate and the fact that the presiding judge did not
reprimand him creates an apprehension of bias.
[32) Although The use of the word "ludicrous" is a strong and even dismissive
word it would still fall within the boundaries of robust and adversarial argument. It
amounts to a comment on the merits of the application as perceived by counsel.
(33) That counsel for the plaintiff was not reprimanded does not elevate such
conduct to a reasonable apprehension of bias.
Conclusion
[34) Based on the reasons mentioned above I conclude that the applicant has
not presented cogent and credible evidence that would lead a reasonable,
objective and informed person to conclude that the presumption of judicial
impartiality has been disturbed and that a reasonable apprehension of bias is
present.
[35) The application is therefore dismissed with costs.
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
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Delivered: This judgement was prepared and authored by the Acting Judge whose name
is reflected and is handed down electronically by circulation to the Parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date of the judgment is deemed to be 14 August 2025
COUNSEL FOR THE APPLICANT :
INSTRUCTED BY:
COUNSEL FOR THE RESPONDENT:
INSTRUCTED BY :
DATE OF ARGUMENT : 13 August 2025
DATE OF JUDGMENT : 14 August 2025
Adv Masebelanga
Tshabalala Attorneys
Adv H Kriel
Edeling Van Niekerk Inc