IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Reportable:
Circulate Judges:
Circulate to Magistrates:
Circulate to Regional Magistrates:
YES/ NO
YES/ MQ
YES/ NO
YES/ NO
CASE NO: 942/2019
In the matter between:
MABAZOZB
And
MINISTER OF POLICE
RUSTENBURG LOCAL MUNICIPALITY
DEPARTMENT OF SAFETY AND TRANSPORT
MANAGEMENT
Date considered: 27 OCTOBER 2025
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
THIRD DEFENDANT
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down of the judgment
is deemed to be 10:00 on 07 July 2026.
1
JUDGEMENT ON RECUSAL
TSAUTSEAJ
INTRODUCTION
[11 This is an application by the second defendant for the recusal of the presiding
judicial officer from further adjudicating the ongoing civil trial between the parties.
[2] The application is founded upon allegations that certain evidentiary rulings,
exchanges between the court and counsel, and the general conduct of proceedings
have given rise to a reasonable apprehension of bias in the mind of a reasonable,
informed litigant.
[3] The plaintiff opposes the application, contending that it is vexatious, without
legal foundation, and constitutes an abuse of process.
[4] It is common cause that the application was brought without the benefit of a
complete transcribed record of proceedings. Both parties rely primarily on their
recollection of events, augmented by such contemporaneous notes as may exist. I
must therefore proceed with caution, mindful that the test for recusal is applied to the
correct facts and not to conjecture or partisan reconstruction.
THE APPLICABLE LEGAL PRINCIPLES
[5] The point of departure is the constitutional framework. Section 34 of the
Constitution of the Republic of South Africa, 1996 states:
"'Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum."' 1
1 Section 34 of the Act.
2
[6] It guarantees to everyone the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum.
[7] Section 165(2) of the Constitution 2 states that:
a'The courts are independent and subject only to the Constitution and the law, which
they must apply impartially and without fear, favour or prejudice."'
This section affirms that the courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear, favour or
prejudice. Judicial impartiality is therefore both a structural feature of our constitutional
order and a concrete right of litigants.
[8] The common-law principles of recusal have been restated and developed in the
constitutional era. In President of the Republic of South Africa and Others v South
African Rugby Football Union and Others3 1999 (4) SA 147 (CC); 1999 (7) BCLR 725
(CC) ("SARFU"), at para 41 the Constitutional Court formulated the test as whether a
reasonable, objective and informed person would, on the correct facts, reasonably
apprehend that the judge has not brought, or will not bring, an impartial mind to bear
on the adjudication of the case.
[9] The test is known as the "double reasonableness" test. It requires that the
apprehension of bias must be that of a reasonable person in the position of the litigant,
and that the apprehension itself must be objectively reasonable. An unreasonable or
purely subjective apprehension, even if genuinely held, cannot ground recusal.
[1 O] Judges are presumed to be impartial. This presumption constitutes a formidable
threshold hurdle for any applicant seeking recusal, reflecting both the judicial oath of
office and the institutional integrity of the judiciary. In South African Commercial
Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods
Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods
Division Fish Processing)4, the Court clarified that the test for recusal is a "double
reasonableness" requirement: both the person apprehending the bias and the
2 Section 165 of the Act.
3 President of the Republic of South Africa and others op cit fn3 Para 41 .
4 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC) (SACCAWU) para 17.
3
apprehension itself must be reasonable. While this hurdle is formidable, it is not
insuperable where the links between the judge and a party are sufficiently direct.
[11] In President of the Republic of South Africa and Others v South African Rugby
Football Union and Others5, the Court emphasised that judicial officers have a
concurrent duty to sit in matters in which they are not disqualified. Approving the
observations of Mason Jin the High Court of Australia, the Court stated:
"Although it is important that justice must be seen to be done, it is equally important
that judicial officers discharge their duty to sit and do not, by acceding too readily to
suggestions of appearance of bias, encourage parties to believe that by seeking the
disqualification of a Judge, they will have their case tried by someone thought to be
more likely to decide the case in their favour."
[12] The Constitutional Court further endorsed the principle that the ground for
recusal is a reasonable apprehension that the judicial officer will not decide the matter
impartially or without prejudice, rather than a mere apprehension that the judge may
decide the matter adversely to a particular party.
[13} Subsequent authority has reaffirmed these principles. In S v Basson6, the Court
held that the presumption of impartiality is not easily displaced and that assertions of
bias must be supported by cogent and convincing evidence. In S v Ralf, it was
emphasised that while judges must not descend into the arena, firmness in controlling
proceedings does not, without more, establish bias.
[14} Article 13 of the Code of Judicial Conduct, issued under the Judicial Service
Commission Act 9 of 19948, codifies these principles by providing .
'Recusal
( 1) A judge recuses him or herself from a case if there is a real or reasonably perceived
conflict of interest or it there is a reasonable suspicion of bias based upon objective
facts.
(2) A judge does not recuse him or herself on insubstantial grounds'
facts.
(2) A judge does not recuse him or herself on insubstantial grounds'
5 1999 (4) SA 147 (CC) (SARFU) para 46.
6 2007 (3) SA 582 (CC) para 29.
7 1982 (1) SA828 (A) 834H-835B.
8 Article 13 of the Code of Judicial Conduct, Judicial Service Commission Act 9 of 1994.
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[151 The distinction between judicial bias and appealable error has long been
recognised in our law. A recusal application is not a substitute for an appeal or review.
In President of the Republic of South Africa and Others v South African Rugby Football
Union and Others9, the Constitutional Court reaffirmed the presumption of judicial
impartiality and emphasised the duty of judicial officers to sit in matters in which they
are not disqualified. Similarly, in Take and Save Trading CC v Standard Bank of SA
Ltd 10 , the Supreme Court of Appeal recognised the legitimacy of robust judicial case
management and intervention directed at ensuring the orderly conduct of proceedings.
In S v Bam11, the Court drew a distinction between conduct that may constitute an
appealable irregularity and conduct giving rise to a reasonable apprehension of bias
warranting recusal. Accordingly, adverse rulings, firm case management, or
procedural interventions do not, without more, establish a reasonable apprehension
of bias.
[16] It is therefore critical to distinguish carefully between an appealable error of law
or fact and manifest judicial bias, as a recusal application cannot serve as a surrogate
appeal. An adverse ruling, even if arguably incorrect or open to challenge, does not
per se constitute evidence of partiality; our courts consistently maintain a clear
demarcation between robust judicial management of proceedings and actionable bias.
[17] It is against this established constitutional and jurisprudential framework that I
turn to evaluate the specific grounds advanced by the applicant in support of the relief
sought.
THE GROUNDS ADVANCED
[18] The Second Defendant advances essentially four categories of complaint:
a) That the Court permitted evidence allegedly relating to quantum despite
the matter proceeding on the merits only;
b) That the Court limited cross-examination and ruled without full
submissions;
9 1999 (4) SA 147 (CC) para 46.
102004 (4) SA 1 (SCA) para 12.
submissions;
9 1999 (4) SA 147 (CC) para 46.
102004 (4) SA 1 (SCA) para 12.
111972 (4) SA41 (E) at 43H--44A.
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c) That the Court permitted the use of discovered documents in cross
examination;
d) That the Court displayed hostility toward counsel and entered the arena.
It is convenient to address each complaint in turn and then to consider their cumulative
effect.
ALLEGED LEADING OF EVIDENCE ON QUANTUM
[19) The second defendant contends that the court improperly allowed the plaintiff
to lead evidence on quantum and thereafter restricted cross-examination in that
regard, thereby favouring the plaintiff.
[20) The plaintiff's version, which is supported by the objective features of the record
that are available, is that she testified to the emotional and financial impact of her
arrest and detention, including that she paid R3 000 for her first court appearance.
Such evidence goes to patrimonial and non-patrimonial loss in a general sense, which
may be relevant even at the merits stage in actions for unlawful arrest and detention.
[21] The dispute arose when counsel for the first defendant sought to question the
plaintiff on an estimated global amount pleaded as damages, notwithstanding an
agreement that the trial would proceed on the merits only, with quantum standing over.
[22] The court ruled that questioning on the amount actually testified to which is the
deposit that the Plaintiff testified on in her evidence in chief which is the amount of R3
000 was permissible, but the questions that were directed at estimated figures
contained only in the pleadings were not, given the separation of issues allowed. That
ruling confined cross-examination to the evidence actually led, while respecting the
parties' agreement and the separation order.
[23] Such a ruling fall squarely within the ordinary exercise of judicial discretion in
managing the scope of evidence and cross-examination. In S v Msimango and
Another12, Moshidi J addressed the fundamental nature of cross-examination by
12 (187/2005) {2009] ZAGPJHC 34; 2010 (1) SACR 544 (GSJ) at para 5.
6
quoting John Henry Wigmore's seminal treatise, Wigmore on Evidence13 , where the
learned author states:
"Not even the abuses, the mishandlings, and the puerilities which are so often found
associated with cross-examination have availed to nullify its value. It may be that in
more than one sense it takes the place in our system which torture occupied in the
mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest
legal engine ever invented for the discovering of truth."
While confirming that cross-examination is a vital ''legal engine for discovering the
truth", the Court emphasized that this procedural mechanism is not limitless. The
presiding judge maintains an inherent power and a fundamental duty to active
circumscribe questioning to ensure it remains relevant to the issues properly before
the court, thereby restricting inquiries that stray into irrelevant issues or are aimed
solely at badgering and harassing a witness.
[24] Our courts have repeatedly held that an adverse or restrictive evidentiary ruling
does not, without more, ground a reasonable apprehension of bias. As the Supreme
Court of Appeal clarified in Take & Save Coffee Lounge CC v Standard Bank of SA
Ltd14, a judge's standard procedural and management rulings-even if incorrect or
sharply worded-cannot be weaponized to demand a recusal. The proper mechanism
to challenge an incorrect procedural or evidentiary ruling is to raise it as a ground of
appeal after the final judgment has been delivered, rather than attempting to escalate
ordinary courtroom management into a claim of judicial bias mid-trial.
[25] A reasonable, informed observer, apprised of the correct facts, would
understand the ruling as directed at preserving the merits-only character of the
proceedings, rather than as favouring one party. It does not sustain an inference that
the court has predetermined any issue or harbours animus toward the second
defendant.
the court has predetermined any issue or harbours animus toward the second
defendant.
[26] The ruling was directed at counsel for the first defendant, who sought to
traverse matters beyond the evidence already adduced and beyond the agreed merits
only ambit of the trial. It did not curtail any line of questioning pursued by the second
13 (3rd eel, Vol V, para 1367).
14 [2004] 2 All SA 523 (SCA) para 5.
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defendant, nor did it impose any procedural disadvantage peculiar to that party. A
reasonable, objective and informed litigant in the position of the second defendant
would therefore not apprehend that the court was biased against it by reason of a
case-management ruling aimed at another party's overreach.
REQUEST FOR ADJOURNMENT AND CONSULTATION WITH THE DEPUTY
JUDGE PRESIDENT
[27] The second defendant further contends that this Court's indication that it would
consult with the Acting Deputy Judge President concerning the conduct of the
proceedings demonstrates a hidden unwillingness to continue presiding over the trial
and serves as evidence of a predisposition against the second defendant.
[28] As the plaintiffs answering affidavit correctly indicates, this issue arose directly
out of heated exchanges between the Court and counsel, during which boardroom
decorum, adherence to practice directives, and ordinary procedural compliance
became contentious.
[29] Judicial officers bear the primary responsibility for maintaining the order, dignity,
and efficiency of court proceedings within their courtrooms. In the High Court structure,
this operational duty is subject to the overall case-flow management, administrative
oversight, and statutory leadership of the Head of Court and the Deputy Judge
President.
[30] An indication by a presiding judge that they propose to temporarily adjourn to
consult the Acting Deputy Judge President on matters of case management, or to
determine how best to regulate proceedings in an environment of escalating courtroom
tension, is, objectively viewed, the very antithesis of bias. Far from demonstrating a
closed mind, such a course of action manifests professional prudence, judicial
restraint, and structural institutional accountability.
[31) There is no evidence on the record to suggest that this Court communicated
any pre-judgment on the merits of the case or harboured an animus toward the second
any pre-judgment on the merits of the case or harboured an animus toward the second
defendant. Nor is there any suggestion that the leadership of this Division sought to
issue, or did issue, any directives concerning the substantive outcome of the trial. On
8
the facts presented, a reasonable, objective, and informed observer would not
apprehend bias merely because a presiding judge sought administrative guidance on
case management to de-escalate tension and preserve the integrity of the forum.
USE OF DISCOVERED DOCUMENTS
[32] It is trite that the purpose of discovery is to eliminate surprise, to narrow the
issues, and to enable parties properly to prepare for trial and to test each other's
evidence. Once a document has been timeously discovered, and a witness
acknowledges authorship of it or sufficient familiarity with its contents, it may ordinarily
be used in cross-examination to challenge that witness's credibility, recollection, or
consistency.
[33) This accords with the classic statement of principle in Durbach v Fairway Hotel
Ltd15, which has been consistently followed in our courts to emphasize that discovery
exists to prevent trial by ambush, as well as Uniform Rule 35, which regulates the
discovery process to facilitate the fair and efficient ventilation of disputes as articulated
also Airports Company South Africa Soc Ltd v ISO Lesedi (Ply) Ltd16.
[34] This Court's ruling that
(a) the documents could be used in cross-examination once properly identified, and
(b) their ultimate admissibility and weight would be determined in due course,
reflects established evidentiary practice. It respects the fundamental distinction
between using a document for the limited purpose of testing a witness's credibility and
admitting it as substantive proof of the truth of its contents.
[35] Even if this ruling were incorrect, a conclusion that I do not support, it is a clear
principle of our law that an erroneous judicial ruling does not, without more, equate to
bias. As the Constitutional Court observed in S v Jaipa/17, litigants are entitled to an
impartial judge, not a perfect one. Mistakes made by a judicial officer in the good-faith
exercise of courtroom management are matters to be corrected on appeal, not
grounds for recusal.
grounds for recusal.
15 1949 (3) SA 1081 (SR).
16 2023 (4) SA 541 (GJ) para 22.
17 2005 (4) SA 581 (CC) para 29.
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ALLEGED HOSTILITY AND ENTERING THE FRAY
[36] The second defendant's final cluster of complaints is that this Court displayed
hostility toward counsel, described counsel as uncivil, and impermissibly "entered the
arena" by making reference to having read the discovered documents.
[37] It is well established that a presiding judge is entitled, and indeed obliged, to
control the proceedings, to insist on courtroom decorum, and to intervene where
counsel's conduct threatens the orderly dispatch of the court's business. Firmness, or
even a measure of sharpness in rebuking perceived discourtesy or obstruction, does
not without more evince hostility or partiality. As the Supreme Court of Appeal clarified
in Take & Save Coffee Lounge CC v Standard Bank of SA Ltd18, a judge is entitled to
adopt a robust attitude in managing a trial and responding to inappropriate litigation
tactics. Courtroom management, even when expressed forcefully to preserve the
efficiency and dignity of the forum, cannot be weaponized to demand a recusal.
[38) In the locus c/assicus of S v Ra/119, the Appellate Division cautioned that a
judicial officer must refrain from descending into the arena in a manner that gives rise
to an appearance of partisanship. At the same time, the Court acknowledged that
measured intervention is often both necessary and proper to clarify issues, prevent
confusion, and ensure the efficient conduct of proceedings. The critical distinction lies
between legitimate trial management and the impermissible assumption of an
advocate's role. Such intervention only becomes objectionable where it crosses the
line into actively promoting a particular version of events or advancing one party's case
at the expense of the other.
[39] Following this approach, the Constitutional Court in S v Basson20 addressed
allegations of trial courts displaying frustration or interrupting lines of questioning. The
Court clarified that judges are human beings, not automata, and that repeated
Court clarified that judges are human beings, not automata, and that repeated
interventions or an irregular/impatient tone, while open to criticism, do not
automatically cross the threshold into a reasonable apprehension of bias. For an
18 All SA 523 (SCA) para 5.
19 1982 (1) SA 828 (A) 831 para A-B .
20 2005 (12) BCLR 1192 (CC) para 23-24 .
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intervention or an expression of irritation to ground a recusal, it must display a
structural one-sidedness or a mind that is permanently closed to the evidence.
CUMULATIVE EFFECT
[40] The second defendant submits that even if each incident, taken in isolation,
might be explicable, their cumulative effect creates a reasonable apprehension of bias.
[41] The law recognises that a series of events, each individually innocuous, may
cumulatively give rise to a reasonable apprehension of bias. Courts therefore, examine
the totality of the circumstances rather than treating each complaint in strict isolation.
[42J I have accordingly considered the incidents cumulatively. Viewed holistically,
they amount to nothing more than dissatisfaction with procedural and evidentiary
rulings, and with this Court's firm management of proceedings in a heavily contested
and emotionally charged trial.
[43] What is conspicuously absent from the application is any objectively
established fact, such as a personal interest, an extraneous association, an explicit
expression of partiality, or a pattern of structural, one-sided intervention, that would
cause a reasonable, well-informed observer to apprehend that the presiding Judge
has not brought, or will not bring, an impartial mind to bear on the merits of the case.
[44] The presumption of judicial impartiality therefore remains intact; the formidable
legal hurdle required to displace it has not been cleared.
[45] The high threshold articulated in President of the Republic of South Africa v
South African Rugby Football Union21 and developed in later decisions such as S v
Basson22 has simply not been met on the facts presented.
21 1999 (4) SA 147 (CC}.
22 2007 (3) SA 582 (CC}.
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ABUSEOFPROCESSANDTHEROLEOFRECUSAL
[46] Recusal is a serious step. It protects both the rights of litigants and public
confidence in the administration of justice by ensuring that justice is manifestly seen
to be done. The appearance of strict judicial impartiality is indispensable to the rule of
law.
[47] At the same time, recusal applications must not be weaponised as tactical tools
to avoid unfavourable rulings, to delay proceedings, or to secure the replacement of a
judge perceived as unsympathetic. Such strategic misuse undermines judicial
independence and erodes public confidence in the judiciary as an institution.
[48] On the material placed before me, this application comes perilously close to
such misuse. It is founded on highly contested recollections in the absence of a verified
transcript, directly targets rulings falling squarely within the trial court's judicial
discretion, and advances generalised assertions of hostility rather than concrete,
cogent evidence of bias.
[49] While I am prepared, in deference to the seriousness of any allegation
impugning a judge's impartiality, to treat this application as misguided rather than ma/a
fide, it nevertheless lacks any legal or factual merit and has occasioned unnecessary
costs and delays in the finalization of the main trial.
COSTS
[50) The remaining issue that I need to deal with is the issue of costs. The general
rule is that costs follow the result, and there is no reason to depart from that principle
in favour of the unsuccessful applicant.
[51) The Plaintiff seeks a punitive order, contending that the application is vexatious
and constitutes an abuse of process. Punitive costs are reserved for conduct that the
Court wishes to mark as reproachable, for example, where litigation is reckless,
malicious, or pursued in wilful disregard of established principles.
[52) Although this application is ill-conceived and devoid of substantive merit, I am
not persuaded that it crosses the threshold warranting an order on the scale as
12
between attorney and client. It is preferable that litigants who harbour genuine (albeit
unfounded) concerns about impartiality should not be deterred from approaching the
Court by fear of punitive costs, provided their complaints are advanced respectfully
and not as a stratagem.
[53] Ordinary costs on the party-and-party scale will adequately compensate the
Plaintiff for the expense of opposing the application and signal the Court's disapproval
of unmeritorious recusal attempts.
ORDER
In the result, I make the following order:
1. The application for the recusal of the presiding judge is dismissed.
2. The plaintiff is to approach the Registrar to have the matter enrolled as a part
heard matter.
3. The second defendant is ordered to pay the costs of this application on the
ordinary party-and-party scale.
T. TSAUTSE
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKEG
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Appearances:
Counsel for the Plaintiff:
Instructed by:
c/o:
Counsel for First Plaintiff:
Instructed by:
Adv RV Mudau
Geldenhuys Malatji Inc.
Labuschagne Attorneys
Mahikeng
Mr Letsoalo
State Attorneys
Mahikeng
Counsel for Second Defendant: Adv O K Chwaro
Instructed by: M Mere & Associates Inc
c/o: ME Tlou Attorneys & Associates
Mahikeng
14