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[2026] ZAGPPHC 91
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Chapman Fund Managers (Pty) Ltd v Minister of Public Works and Another (25558/2021) [2026] ZAGPPHC 91 (9 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 25558/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE
09/02/2026
SIGNATURE
In the matter between:
CHAPMAN
FUND MANAGERS (PTY) LTD
Plaintiff
and
MINISTER
OF PUBLIC WORKS
DIRECTOR-GENERAL
OF PUBLIC WORKS
First
Defendant
Second
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, J
[1]
Nugent, JA quoted in
Aktiebolaget
Hässle and Astrazeneca Pharmaceuticals (Pty) Ltd v Triomed (Pty)
Ltd
[1]
as follows:
“’
In
Law’ – remarked Lord Steyn in R v Secretary of State for
the Home Department, ex parte Daly – ‘context
is
everything’. And so it is when it comes to construing the
language used in documents, whether the document be a statute,
or a
contract, or, as in this case, a patent specification.”
(the reference to the full citation of the authority is excluded)
[2]
This statement is of immense importance and finds particular
application in this matter. The context
in the record of alleged
shortcomings is of the utmost importance.
[3]
After the second defendant had awarded a tender to the plaintiff and
a contract was concluded,
the parties found themselves on opposite
sides of the battle field drawn in the action instituted by the
plaintiff against the
defendants. As will become apparent, there were
various skirmishes, the outcome of which have divergent effects upon
the view of
the parties thereon.
[4]
The trial of the aforesaid action had a bumpy start, and the
progression thereof was not less
bumpy. The special plea of alleged
invalidity of the tender, and in particular the extension thereof,
was separated from the other
issues raised between the parties and
specifically those of which the defendants raised in their plea-over.
Following on a written
judgment, the special plea was found in favour
of the plaintiff and against the defendants. The latter applied for
leave to appeal
the judgment which was refused. The defendants did
not take that issue further. Thereafter the trial continued. Various
subsequent
issues arose some of which were ruled upon, often in
ex
tempore
rulings.
[5]
During the leading of evidence on behalf of the plaintiff in
furtherance of its claim, objections
were raised on behalf of the
defendants. Of those, some were successful, when the issue was
conceded on behalf of the plaintiff,
others were noted by the court
for final consideration at the end of the trial. It is to be recorded
that the context of those
objections that were noted by the court,
plays an important role when the present issue is to be considered.
[6]
The defendants have taken Umbridge to the mere noting of those
objections and subsequent rulings
made by the court on other issues.
The defendants consequently filed an application for the recusal of
the presiding judge. It
is this application that is the subject of
this judgment.
[7]
It is settled law that the basis of an application for the recusal of
a presiding officer is a
constitutional matter.
[2]
That basis is to be found in the provisions of section 167(3) of the
Constitution.
[8]
The impact on judicial recusal is to be considered on the provisions
of a number of sections of
the Constitution, such as sections 34, 35
and Chapter 8 thereof as well as other specific sections including
subsections 165(1)
and (2) and section 174.
[9]
The underlying principle being the right to a fair trial or hearing
before an impartial, unbiased
and independent bench.
[10]
Copies of two articles published in legal journals were handed up
during argument in the application for
recusal.
[3]
Those articles provide a helpful exposé on the test to be
applied in adjudicating an application for the recusal of the
presiding judge. Both parties indicated that they were aware of the
said publications and had considered them.
[11] It
is accepted that the applicable test for recusal is set out and
explained by the Constitutional Court
in the
SARFU
judgment.
[4]
It flows from that
part of the
SARFU
judgment that the correct approach to an application for recusal is
objective and the
onus
of establishing it rests upon the applicant.
[5]
[12]
The Constitutional Court held in paragraph [48] of that judgment:
“
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.”
[13]
From this reasoning the following characteristics of the test can be
discerned:
(a)
A
reasonable, objective and informed person (also said to be
‘thoughtful’)
[6]
;
(b) would on the
correct facts;
(c)
reasonably apprehend;
(d) that the judge
has not or will not bring an impartial mind to bear on the
adjudication of the case;
(e) a mind open to
persuasion by evidence and the submissions of counsel.
Objectively, there must
be compliance with a double reasonable requirement that is
acknowledged. Both the objective observer that
apprehends and the
apprehension itself must be reasonable.
[14] It
is important to note that impartiality of the judicial officer is a
presumption that courts have recognised.
[7]
It is also acknowledged in the oath that a judicial officer is
obliged to take in terms of the Constitution.
[8]
Cogent or convincing evidence or reason is required to rebut the
presumption of impartiality. It is not lightly rebutted.
[9]
[15]
The primary factor affecting impartiality is bias, either actual or
the appearance of bias on the part of
the presiding officer. Judicial
bias is a departure from the standard of even-handed justice, the
important requisite for those
who occupy judicial office.
[10]
[16] It
is trite that a presiding judge is tasked with the management of the
matter before him or her.
[11]
He or she not only adjudicates, but also manages the proceedings
before him or her.
[17]
The test for bias is not concerned with a disgruntled litigant who
complains of bias simply because the judicial
officer has ruled
against him or her. Substantial grounds for contending a reasonable
apprehension of bias is required.
[12]
[18] In
this application for recusal, the applicants (defendants in the main
action) alleged that when regard
is had to various incidents
appearing from the record, a reasonable apprehension of bias on the
part of the presiding judge against
the applicants emerges. Sixteen
instances were alleged in support of the allegation of bias. Those
were set out in the founding
affidavit. That document was deposed to
by a Senior Legal Administrative Officer employed by the second
applicant/defendant. He
stated that the matter was allocated to him
and that he attended at court during the trial.
[19]
The sixteen incidents can be categorised as follows:
(a) coaching and
prejudging of material issues (grounds 1 and 2);
(b) strange
directives to assist the plaintiff and stifling the right of
objection (grounds 3 and 4);
(c) refusal
to expeditiously determine admissibility of evidence contrary to
binding authority (ground 5);
(d) refusal to
uphold objection to evidence not pleaded (ground 6);
(e)
mischaracterisation of the outstanding issues as “
quantum
only”
(ground seven);
(f)
undue denial of procedural rights under Rule 28 and
audi alteram
partem”
(ground 8);
(g) pejorative tone
(ground 9);
(h) fishing
expedition remark (ground 10);
(i)
interruption and obstruction of cross-examination due to dislike of
repetition (ground 11 and 12);
(j)
evidence treated as “uncontested” without opportunity to
contest (ground 13);
(k) deferral
of objections to end of the case whilst making findings on issues to
which the objections relate (ground
14);
(l)
avoidance of dealing with prejudged issues at exception (ground 15);
(m) pre-approvals (ground
16);
[20]
During oral argument, counsel on behalf of the applicants emphasised
particular issues to indicate the alleged
bias against the applicants
that would not result in a fair hearing.
[21]
The applicants stated that reference was to be had to the period
during August 2025 only when the trial was
heard that would
constitute sufficient bases for the request of recusal. Despite this
approach, the applicants refer to and rely
on adverse findings
against the applicants that include: the judgment on their special
plea; the judgment on the amendment of the
plaintiff’s
particulars of claim; and the judgment on the condonation application
(incorrectly attributed to a dismissal
of an exception). The first
judgment was delivered on 26 March 2024, the second judgment was
delivered on 21 August 2025, and the
third judgment was delivered on
24 October 2025. Each dealt with specific issues after both parties
presented arguments thereon.
The applicants applied for leave to
appeal the first judgment which was refused and did not take further
steps to appeal the judgment.
[22]
Each of the incidents raised and relied upon in the application for
recusal must be considered in their particular
context and
circumstances. That much is conceded by the applicants in their
founding papers where they concede that none of the
raised issues
show any apprehension, reasonable or otherwise. The applicants
clearly rely on an alleged cumulative approach.
[23]
The first and second grounds listed above are premised upon the
allegation that the court had coached the
plaintiff into amending
their particulars of claim.
[24]
The alleged prejudging of the issues raised in the founding affidavit
in the specific context relate to an
assumed coaching of the
plaintiff to amend its pleadings. The prejudging specifically related
to the issue of baseline and the
disputed number of buildings that
fell within the contract. From the specific context it is apparent
that no coaching took place,
the amendment was brought on by a
challenge by counsel for the applicants. The plaintiff was granted an
opportunity to set out
in writing the proposed amendment. Again, that
was to assist the applicants in considering what the proposed
amendment would entail.
The matter stood down to enable the plaintiff
to draft in writing the proposal for amendment and for the applicants
to consider
it. The matter stood down for two days in that regard.
Furthermore, the granting of an amendment to a pleading does not,
with due
respect, amount to a prejudging of any issue raised in the
amendment. The judging thereof will only and could only be determined
after all the evidence led by both parties are adjudicated upon. On
the granting of the amendment in a reasoned ruling, the applicants
were afforded time to consider their response thereto.
[25]
The complaint that the court gave strange directives to assist the
plaintiff and thus stifled the right to
object is to be considered
within the specific context. The applicants objected to evidence that
was led that was not premised
on any documentary evidence discovered.
The applicants alleged that despite repeated requests for further and
better discovery,
nothing was forthcoming. It was mentioned on
behalf of the applicants that there would be many such objections in
view of
the inadequate discovery. In order to regulate the
proceedings, the parties were granted an opportunity to discuss that
issue and
find a possible shortening of the proceedings. The parties
welcomed the opportunity provided. From the record it is gleaned that
counsel for the applicants/defendants welcomed the opportunity. The
fact that the parties could not come to terms, does not warrant
a
reasonable apprehension of bias of assisting the plaintiff in any
manner. No reasonable apprehension of bias could be gleaned
from the
granting of an opportunity to the parties to possibly avoid further
interruptions.
[26]
The objection to alleged stifling of raising objections is premised
upon a ruling that the court declined
to adjudicate upon the issue of
interpretation of the contract. The court indicated that the
appropriate time, in the present matter,
would be to do so after all
the factual evidence was led and the issues were canvassed. The
reliance of the applicants on the matter
of
KPMG
Charted Accountants (SA) v Securefin Limited et al
2009(4) SA 399 (SCA) is not appropriate in the present instance. In
that matter, the Supreme Court of Appeal expressed their concern
and
disapproval of the leading of substantial evidence by experts and lay
persons on the issue of interpretation of a contract.
[13]
In the present instance, no evidence was led or to be led on the
interpretation of the contract. All that was deferred, was the
time
for the adjudication on the interpretation of the contract.
[27]
The applicants further contended in regard of the former, that the
court permitted the leading of evidence
not pleaded. That contention
ignores the distinction between the
facta probanda
and the
facta probantia
. The former is that which is to be alleged in
a pleading to sustain a claim, whilst the latter is the evidence that
would support
the claim. Evidence
per se
is not pled. That is
trite law.
[28] A
further issue raised in support of the application for recusal
relates to the mischaracterisation of outstanding
issues apart from
the special plea. It is claimed that the inappropriate use of the
term “quantum only” clearly reveals
apprehended bias. The
applicants apprehend that the court has prejudged the so-called
“merits” and that only the amount
is to be determined.
This apprehension in its particular context does not meet the
standard set in
S
v Basson
.
[14]
The Constitutional Court stated in [70] of the judgment as follows:
“
For
a mistake on the facts to give rise to a reasonable apprehension of
bias, it would need to be established that the mistake of
fact is so
unreasonable on the record that it must have arisen from bias or
given rise to a reasonable apprehension of bias.”
[29]
The context in the record does not lean to a reasonable apprehension
of bias in that regard. Had it been
so, the issues relating to the
“merits” would not have been alive and the debates
thereon would not have been allowed.
[30]
Further in this regard, the issue of “
one iota”
,
and “
fishing expedition”,
in their respective
contexts in the record does not evidence a reasonable apprehension of
bias. The respective contexts show that
the evidence that had been
led at that stage, and the submissions on behalf of the applicants
warranted some censure from the court
in respect of the approach
adopted by the applicants.
[31]
The applicants bemoan the alleged repeated ignoring of objections on
behalf of the applicants. Considering
the objections raised in the
relevant period relied upon, the context indicates that some of the
objections were conceded by counsel
on behalf of the plaintiff and
the questions retracted or re-phrased, effectively in favour of the
applicants, not adverse to them
and thus upheld. The objections noted
by the court in the respective contexts were deferred for
consideration at the appropriate
time and in so doing to consider all
evidence and that to be presented by the applicants. The applicants
were accordingly not denied
to rebut any issue. The issues were not
judged and remained open. The proverbial doors were not closed.
[32]
The ground relating to the amendment of plaintiff’s particulars
of claim ignores the fact that the
court ruled upon the application
for amendment and in so doing considered all the provisions of Rule
28 of the Uniform Rules of
Court, including the thrust of sub-rule
(10) thereof. Furthermore, the applicants were granted an opportunity
to respond to the
amended pleading. The amendment was granted as
evidenced by the ruling that both parties had been afforded the
opportunity to address
the court before a ruling was made. In that
regard, the applicants were granted a period of at least two days to
consider the intended
amendment. Their objections were fully
considered in the ruling granting the amendment. Their lamentation
seems to be that they
were not afforded an extended time to consider
and to react thereto. The amendment did not pre-judge any issue
against the applicants.
They were entitled and remain so entitled to
lead evidence to gainsay the allegations. There can be no reasonable
apprehension
of bias. The context in the record clearly disproves any
such apprehension.
[33]
The complaint that the court pre-judged the exception is not
supported in the specific context of the record
that relates thereto.
This complaint is without merit. At that stage the court was
considering an application for condonation.
The fact that a notice in
terms of R23(1) was attached to the heads of argument on the
condonation application, did not and could
not be considered as an
exception before the court. Counsel for the applicants conceded that.
The procedural issues relating an
exception had not been completed by
then. The exception
per se
was not argued. It was not before
the court. There could be no reasonable apprehension of bias. It is
trite law that an exception
can be taken at any stage. Taking it late
in the proceedings could have an impact upon costs.
[34] In
view of the applicants’ concession that individually the
grounds raised relating to an apprehension
of bias do not meet the
stringent test for recusal, they nevertheless submit that when
considered cumulatively, there is reasonable
apprehension of bias.
Where the context in respect of each of the grounds disproves the
alleged apprehension of bias, it would
be a constrained and contorted
exercise to find any reasonable apprehension of bias on a cumulative
basis. The disappointment of
having rulings made against a litigant,
i.e. a disgruntled litigant, does not lean to a reasonable
apprehension of bias where in
the respective contexts, that ruling
was appropriate.
[15]
A number
of white lights superimposed could not make a red light. A number of
amber lights superimposed may have a hint of red.
It would not be
reasonable to say there is a red light.
[35]
Following from all of the foregoing, the applicants have not met the
test for recusal. Objectively, the requirement
of double
reasonableness has not been shown in the context of the record. The
application for recusal stands therefore to
be refused.
[36]
There remains the issue of costs. The applicants sought an order as
to costs should the application succeed.
On the other hand, the
respondent/plaintiff sought a punitive cost order against the
defendants/applicants in their personal capacities,
on the scale of
attorney and own client. The rational being that the launch of the
recusal application was misguided and ill founded.
I do not intend to
grant such a costs order. A party is entitled to approach a court for
recusal when it apprehends bias towards
it. However, the principle
that costs follow the event should be adhered to.
I
grant the following order:
1.
The application for recusal is refused.
2.
The applicants are to pay the costs, jointly and severally, the one
paying, the other to be absolved,
such costs to include the costs
consequent upon the employ of two counsel, and to be taxed on scale
C.
3.
The trial is to continue forthwith.
C J VAN DER WESTHUIZEN
J
JUDGE OF THE HIGH
COURT
PRETORIA
On
behalf of Applicants:
M
Mojapelo SC
V
Mabuza
Instructed
by:
The
State Attorney
On
behalf of Respondents:
P
Ellis SC
A
P Ellis
Instructed
by:
Weavind
& Weavind Inc.
Date
of hearing:
26
January to 3 February 2026
Date
of Judgment:
9
February 2026
[1]
2003
(1) SA 155
(SCA) [1]
[2]
President
of the Republic of South Africa v South African Rugby Football Union
(SARFU),
1999(4) SA 147 (CC) par [30]
[3]
Okpaluba M C and Maloka T C, “
The
Fundamental Principles of Recusal of a Judge at Common Law: Recent
Developments”
2022
Obiter,
89
; Olivier M, “
Anyone
But You M’Lord: The Test For Recusal of a Judicial Officer”
2006
Obiter
,
606
[4]
Para
[35]-
[48]
[5]
Ibid
para [48]
[6]
Van
Rooyen v The State
2002(5) SA 246 (CC) [34]
[7]
SARFU,
[40]
et
seq.
[8]
Sections 165(2), (3) and 174(8) of the Constitution
[9]
South
African Commercial Catering and Allied Workers v Irvin & Johnson
Ltd
2000(3) SA 705 (CC) para [12]
[10]
S
v Roberts
1999(4)
SA 915 (A) par [25]
[11]
Take
and Save Trading CC v Standard Bank of SA Ltd
2004(4) SA 1 (SCA) par [2] –[4]
[12]
Bernert
v ABSA Bank Ltd
2011(3) SA 92 (CC) at [34] – [35]; see also
Law
Society v Steyn
1923 SWA 59 at 60 – 61;
Schonken
v Assistant Resident Magistrate, Pretoria
1916 TPD 256
at 259
[13]
At
para
[38]
[14]
2007(3) SA 582 (CC)
[15]
[15]
Bernert,
supra,
at para [35]