Bernert v Absa Bank Ltd (CCT 37/10) [2010] ZACC 28; Bernert v ABSA Bank Ltd 2011 (4) BCLR 329 (CC) ; 2011 (3) SA 92 (CC) (9 December 2010)

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Bernert v Absa Bank Ltd (CCT 37/10) [2010] ZACC 28; Bernert v ABSA Bank Ltd 2011 (4) BCLR 329 (CC) ; 2011 (3) SA 92 (CC) (9 December 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 37/10
[2010] ZACC 28
In the matter between:
ENRICO BERNERT
….........................................................................................
Applicant
and
ABSA BANK LTD
…........................................................................................
Respondent
Heard on : 19 August 2010
Decided on : 9 December 2010
JUDGMENT
NGCOBO CJ:
Introduction
This
is an application for leave to appeal against the judgment and order
of the Supreme Court of Appeal
1
that upheld an appeal against the decision of the North Gauteng High
Court, Pretoria (High Court).
2
The High Court had, in bifurcated proceedings, ruled that Absa Bank,
the respondent, was liable to Mr Bernert, the applicant,
in damages
for negligent misstatement. The issue of quantum was left over to be
determined later.
At
the centre of the litigation was a document entitled “Verbiage
of Bank Guarantee” (alleged guarantee) which was
purportedly
issued by Absa Bank and addressed to Emirates Bank International
(Emirates Bank). It was required by a potential
financial investor,
Sheikh Fawaz Bin Abdullah Al-Khalifa (Sheikh), in a business
enterprise to be undertaken by Mr Bernert. The
alleged guarantee,
which was described by the High Court as “strange and
confusing” and by the Supreme Court of Appeal
as “a
compendium of gibberish”, purported to guarantee a fixed
deposit facility to a Mr Fanjek on an amount of $6
million at a
specified fixed interest rate. Concerned that Emirates Bank might
rely on the authenticity of this document, Absa
Bank, upon becoming
aware of its existence, advised Emirates Bank, by letter, that the
document had been issued without its authority
and in irregular
circumstances. When the Sheikh learnt of this letter, he pulled out
of the project.
The
central issue in the litigation was whether Absa Bank acted lawfully
when it advised Emirates Bank that the alleged guarantee
had been
issued without its authority and in irregular circumstances. The
High Court answered this question in favour of the
applicant while,
on appeal, the Supreme Court of Appeal answered it in favour of Absa
Bank. Mr Bernert is attacking the conclusion
of the Supreme Court of
Appeal and is alleging bias against him by some of the judges who
constituted the panel that heard the
appeal in the Supreme Court of
Appeal.
Mr
Bernert contends that the Supreme Court of Appeal was biased against
him on a number of grounds. First, one of the judges who
constituted
the panel held shares in Absa Bank; second, two of the judges had a
prior relationship with Absa Bank; third, the
manner in which the
presiding judge conducted the proceedings created a reasonable
apprehension that he was biased and fourth,
the factual findings
made by the Supreme Court of Appeal were so grossly unreasonable
that they are inexplicable except on the
basis of bias.
The
factual background relevant to these issues is this.
Factual
background
Mr
Bernert is a motor mechanic. While working at his father’s
business of restoring motor vehicles, he came across a design
for a
motor vehicle. In due course, he acquired rights to this design.
After making various modifications to this design, he
began building
vehicles which he called “El Macho”. Apparently this
motor vehicle attracted some interest within
the armaments industry.
This prompted Mr Bernert to consider building production plants for
this vehicle internationally. The
events that gave rise to the
litigation arose from his attempt to secure finance to build these
production plants. He hoped to
realise his dream through a close
corporation called Rotrax Cars International CC (Rotrax), in which
he was a sole member.
In
the course of searching for finance, he came into contact with the
Sheikh and Mr Fanjek. The latter, who described himself
as a
businessman, purported to play the role of Mr Bernert’s agent
for raising the investment finance. The Sheikh agreed
to invest
millions of dollars to build and operate manufacturing plants in
five continents. As a pre-condition for this investment,
Mr Bernert
had to obtain and produce an undertaking from a reputable South
African bank that it would provide the Sheikh with
a fixed deposit
facility. In addition, the bank had to undertake to provide the
Sheikh with a specified interest rate and to
return the money when
the term of the fixed deposit expired.
The
alleged guarantee was secured with the assistance of Mr Coetzee, a
business manager employed by Absa Bank. The document was
prepared on
the letterhead of Absa Bank and was addressed to Emirates Bank. The
alleged guarantee confirmed that Mr Fanjek
was guaranteed a
fixed deposit of an amount of $6 million for a period of 12 months
at an “interest rate of libor plus
1%”. It is not clear
from the evidence why the alleged guarantee was in favour of Mr
Fanjek instead of the Sheikh who had
required Mr Bernert to
produce the alleged guarantee. The evidence establishes that there
were other similar documents addressed
to three other banks with
different amounts of “investment”.
When
the alleged guarantee came to the attention of Absa Bank, it set
about attempting to retrieve it. Absa Bank advised Emirates
Bank
that the document had been issued irregularly and without its
authority. It added that in the event that Emirates Bank had

received the document, no reliance should be placed on it. On being
informed by Emirates Bank of these developments, the Sheikh
decided
not to proceed with investing funds in Mr Bernert’s project.
And this ended Mr Bernert’s hope of building
his manufacturing
plants.
Proceedings
in the High Court
Mr
Bernert, as a cessionary of a claim by Rotrax, instituted a claim
against Absa Bank in the High Court, claiming that, in causing
the
letter to be written to Emirates Bank, Absa Bank had acted
unlawfully. This conduct, he alleged, alienated the Sheikh and

caused him to lose millions of dollars that the Sheikh would have
invested in building and operating the manufacturing plants.
He
further alleged that over 10 000 motor vehicles would have been
manufactured and sold and that this would have earned Rotrax
about
R187 million, an amount he claimed as damages.
The
High Court, after separating the issue of liability from that of
quantum, found that Absa Bank had indeed acted unlawfully.
On appeal
to the Supreme Court of Appeal, this finding of the High Court was
set aside. It is necessary to set out the approach
of the Supreme
Court of Appeal to this matter as it is relevant to the question of
whether the findings of that court are grossly
unreasonable and
whether it reversed any of the factual findings of the High Court.
Proceedings
in the Supreme Court of Appeal
The
Supreme Court of Appeal took the view that the High Court
misconceived the nature of the case. It held that the claim was
not
about the enforcement of a contract but about whether Absa Bank was
justified in advising Emirates Bank that the alleged
guarantee had
been issued without its authority. Given the nature of the claim,
the court held that it was irrelevant how the
parties understood the
document. Consequently, it found that the High Court erred in
focusing more on what the witnesses said
the document meant instead
of focusing more on what third parties might have thought the
document meant.
3
Before
considering the main issues presented in this case, it is necessary
to address two preliminary issues. The first is whether
the late
filing of the application for leave to appeal and the record should
be condoned. The other is whether leave to appeal
should be granted.
Applications
for condonation
The
test for determining whether to grant condonation is the interests
of justice. Factors relevant to this enquiry include, but
are not
limited to, the extent and the cause of delay, the prejudice to
other litigants, the reasonableness of the explanation
for the
delay, the importance of the issues to be decided in the intended
appeal and the prospects of success.
4
None of these factors is decisive; the enquiry is one of weighing
each against the others and determining what the interests
of
justice dictate.
The
application for leave to appeal was filed some three days late while
the record was filed a day late. At the hearing of this
matter,
counsel for Absa Bank indicated that the applications for
condonation were opposed only on the basis that the application
for
leave to appeal bore no prospects of success. In the view I take of
the importance of the constitutional issues of bias raised
by the
application for leave to appeal, I do not consider the prospects of
success to be decisive in this case.
Apart
from this, there is a satisfactory explanation for the delay in
relation to the filing of both the application for leave
to appeal
and the record, the delay was minimal and there was no prejudice to
Absa Bank. In these circumstances, it is in the
interests of justice
that the applications for condonation be granted.
Should
the application for leave to appeal be granted?
The
question whether an application for leave to appeal should be
granted depends upon whether (a) it raises a constitutional
matter
and (b) it is in the interests of justice to grant leave.
The
question whether a judicial officer should recuse himself or herself
is a constitutional matter.
5
So too is the issue whether there was actual or a reasonable
apprehension of bias.
6
And legal and factual issues that need to be decided in order to
determine the question of recusal or bias are themselves issues

connected with a decision on a constitutional matter.
7
The question whether the two judges of the Supreme Court of Appeal
should have recused themselves as well as whether the applicant
had
a reasonable apprehension of bias, therefore, unquestionably raise a
constitutional matter.
But
is it in the interests of justice to grant leave to appeal?
The
answer to this question is a function of many factors. These
include, but are not limited to, the prospects of success in
the
intended appeal, the importance of the constitutional issues sought
to be raised in the intended appeal and the impact of
the decision
on the administration of justice. Among other questions, this
application raises the following: The one is should
the two judges
of the Supreme Court of Appeal have recused themselves of their own
accord? The other, which has not been answered
by this Court before,
is whether judicial officers who are shareholders in a litigant
company before a court should recuse themselves
of their own accord?
Apart
from this, the applicant has made serious allegations against judges
of the Supreme Court of Appeal. These allegations concern
the proper
administration of justice. They strike at the very core of the
judicial function, namely, to administer justice to
all impartially
and without fear, favour or prejudice. Compliance with this
requirement is fundamental to the judicial process
and the proper
administration of justice. This is so because it engenders public
confidence in the judicial process, and public
confidence in the
judicial process is necessary for the preservation and maintenance
of the rule of law. Bias in the judiciary
undermines that
confidence. And a judicial officer who sits in a case in which he or
she should recuse himself or herself violates
the Constitution.
These
are important constitutional issues that go beyond the interests of
the parties to the dispute, for an independent and impartial

judiciary is crucial to our constitutional democracy. It is,
therefore, in the public interest that these issues be resolved.
As
these allegations are made against the Supreme Court of Appeal,
there is no court that can investigate these issues other
than this
Court. This Court, as the ultimate guardian of the Constitution, has
the duty to express the applicable law in order
to enhance certainty
among judicial officers, litigants and legal representatives and,
thereby, to contribute to public confidence
in the administration of
justice.
Prospects
of success are an important consideration in deciding whether leave
to appeal should be granted. However, viewed against
the importance
of the constitutional issues raised, I do not consider the prospects
of success to be decisive in this case.
In
all the circumstances it is, therefore, in the interests of justice
that leave to appeal be granted.
And
now to the merits of the appeal.
The
merits
The
appeal raises the broad issue of judicial bias, in the following
questions:
Should
Cachalia JA have recused himself of his own accord because of his
shareholding in Absa Bank?
Should
Cachalia and Malan JJA have recused themselves of their own accord
because of their alleged prior association with Absa
Bank?
Did
the manner in which the hearing was conducted in the Supreme Court
of Appeal give rise to a reasonable apprehension of bias?
Were
the factual findings made by the Supreme Court of Appeal so grossly
unreasonable that they give rise to a reasonable apprehension
of
bias?
Before
considering these issues, I consider it appropriate to set out, in
broad terms, the legal principles that govern allegations
of bias.
Applicable
legal principles
It
is, by now, axiomatic that a judicial officer who sits on a case in
which he or she should not be sitting, because seen objectively,
the
judicial officer is either actually biased or there exists a
reasonable apprehension that the judicial officer might be biased,

acts in a manner that is inconsistent with the Constitution.
8
This case concerns the apprehension of bias. The apprehension of
bias may arise either from the association or interest that
the
judicial officer has in one of the litigants before the court or
from the interest that the judicial officer has in the outcome
of
the case. Or it may arise from the conduct or utterances by a
judicial officer prior to or during proceedings. In all these

situations, the judicial officer must ordinarily recuse himself or
herself. The apprehension of bias principle reflects the fundamental

principle of our Constitution that courts must be independent and
impartial.
9
And fundamental to our judicial system is that courts must not only
be independent and impartial, but they must be seen to be

independent and impartial.
The
test for recusal which this Court has adopted is whether there is a
reasonable apprehension of bias, in the mind of a reasonable

litigant in possession of all the relevant facts, that a judicial
officer might not bring an impartial and unprejudiced mind
to bear
on the resolution of the dispute before the court.
10
In
SARFU II
, this Court formulated the proper approach to an
application for recusal and said:
“
It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the onus of establishing it rests upon the applicant. The question is
whether a reasonable, objective and informed person would
on the
correct facts reasonably apprehend that the Judge has not or will not
bring an impartial mind to bear on the adjudication
of the case, that
is a mind open to persuasion by the evidence and the submissions of
counsel. The reasonableness of the apprehension
must be assessed in
the light of the oath of office taken by the Judges to administer
justice without fear or favour; and their
ability to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds
of any irrelevant personal beliefs
or predispositions. They must take into account the fact that they
have a duty to sit in any
case in which they are not obliged to
recuse themselves. At the same time, it must never be forgotten that
an impartial Judge is
a fundamental prerequisite for a fair trial and
a judicial officer should not hesitate to recuse herself or himself
if there are
reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reasons, was not
or will
not be impartial.”
11
(Footnote omitted.)
What
must be stressed here is that which this Court has stressed before:
the presumption of impartiality and the double-requirement
of
reasonableness.
12
The presumption of impartiality is implicit, if not explicit, in the
office of a judicial officer.
13
This presumption must be understood in the context of the oath of
office that judicial officers are required to take as well
as the
nature of the judicial function. Judicial officers are required by
the Constitution to apply the Constitution and the
law “impartially
and without fear, favour or prejudice.”
14
Their oath of office requires them to “administer justice to
all persons alike without fear, favour or prejudice, in accordance

with the Constitution and the law.”
15
And the requirement of impartiality is also implicit, if not
explicit, in section 34 of the Constitution which guarantees the

right to have disputes decided “in a fair public hearing
before a court or, where appropriate, another independent and

impartial tribunal or forum.” This presumption therefore flows
directly from the Constitution.
As is
apparent from the Constitution, the very nature of the judicial
function requires judicial officers to be impartial. Therefore,
the
authority of the judicial process depends upon the presumption of
impartiality. As Blackstone aptly observed, “[t]he
law will
not suppose a possibility of bias or favour in a judge, who [has]
already sworn to administer impartial justice, and
whose authority
greatly depends upon that presumption and idea.”
16
And as this Court observed in
SARFU II
, judicial officers,
through their training and experience, have the ability to carry out
their oath of office and it “must
be assumed that they can
disabuse their minds of any irrelevant personal beliefs and
predispositions.”
17
Hence the presumption of impartiality.
But
as this Court pointed out in both
SARFU II
and
SACCAWU
,
this presumption can be displaced by cogent evidence that
demonstrates something the judicial officer has done which gives
rise to a reasonable apprehension of bias.
18
The effect of the presumption of impartiality is that a judicial
officer will not lightly be presumed to be biased. This is a

consideration a reasonable litigant would take into account. The
presumption is crucial in deciding whether a reasonable litigant

would entertain a reasonable apprehension that the judicial officer
was, or might be, biased.
19
The
other aspect to emphasise is the double-requirement of
reasonableness that the application of the test imports. Both the
person who apprehends bias and the apprehension itself must be
reasonable. As we pointed out in
SACCAWU
, “the two-fold
emphasis . . . serve[s] to underscore the weight of the burden
resting on a person alleging judicial bias
or its appearance.”
20
This double-requirement of reasonableness also “highlights the
fact that mere apprehensiveness on the part of a litigant
that a
judge will be biased — even a strongly and honestly felt
anxiety — is not enough.”
21
The court must carefully scrutinise the apprehension to determine
whether it is, in all the circumstances, a reasonable one.
The
presumption of impartiality and the double-requirement of
reasonableness underscore the formidable nature of the burden

resting upon the litigant who alleges bias or its apprehension. The
idea is not to permit a disgruntled litigant to successfully

complain of bias simply because the judicial officer has ruled
against him or her. Nor should litigants be encouraged to believe

that, by seeking the disqualification of a judicial officer, they
will have their case heard by another judicial officer who
is likely
to decide the case in their favour.
22
Judicial officers have a duty to sit in all cases in which they are
not disqualified from sitting.
23
This flows from their duty to exercise their judicial functions. As
has been rightly observed, “[j]udges do not choose
their
cases; and litigants do not choose their judges.”
24
An application for recusal should not prevail unless it is based on
substantial grounds for contending a reasonable apprehension
of
bias.
But
equally true, it is plain from our Constitution that “an
impartial Judge is a fundamental prerequisite for a fair trial”.
25
Therefore, a judicial officer should not hesitate to recuse himself
or herself if there are reasonable grounds on the part of
a litigant
for apprehending that the judicial officer, for whatever reason, was
not or will not be impartial.
26
In a case of doubt, it will ordinarily be prudent for a judicial
officer to recuse himself or herself in order to avoid the
inconvenience that could result if, on appeal, the appeal court
takes a different view on the issue of recusal.
27
But, as the High Court of Australia warns:
“
[I]f
the mere making of an insubstantial objection were sufficient to lead
a judge to decline to hear or decide a case, the system
would soon
reach a stage where, for practical purposes, individual parties could
influence the composition of the bench. That would
be intolerable.”
28
Ultimately,
what is required is that a judicial officer confronted with a
recusal application must engage in the delicate balancing
process of
two contending factors. On the one hand, the need to discourage
unfounded and misdirected challenges to the composition
of the court
and, on the other hand, the pre-eminent value of public confidence
in the impartial adjudication of disputes.
29
As we said in
SACCAWU
, in striking the balance, a court must
bear in mind that it is “‘as wrong to yield to a tenuous
or frivolous objection’
as it is ‘to ignore an objection
of substance’.”
30
This balancing process must, in the main, be guided by the
fundamental principle that court cases must be decided by an
independent
and impartial tribunal, as our Constitution requires.
With
these legal principles in mind, I now turn to consider whether (a)
the two judges of the Supreme Court of Appeal should have
recused
themselves and (b) whether the applicant should reasonably have
entertained a reasonable apprehension of bias. I will
consider each
of these issues in turn.
Recusal
The
factual background against which the question of recusal must be
considered is this: Cachalia JA owned 1000 shares of Absa
Bank
stock, with a value of approximately R138 800. At the time, the
total number of issued shares in Absa Bank stock was 718
210 000
shares, with a total value of approximately R100 billion.
Prior
to the hearing in the Supreme Court of Appeal, the applicant’s
erstwhile attorney met with Nugent JA, the presiding
judge in the
appeal, and with Absa Bank’s legal representatives. At this
conference, the presiding judge informed the applicant’s

attorney that one of the five judges due to sit in the appeal was a
shareholder in Absa Bank and expressed the opinion that the
outcome
in the case would have no influence on Absa Bank’s share
price. The applicant’s erstwhile attorney agreed.
The
presiding judge did not ask the applicant’s attorney to inform
the applicant of the shareholding. The applicant’s
attorney
advised the applicant of the shareholding only after the hearing,
although on the same day, but several weeks before
judgment was
delivered. According to the applicant, there was no time to do so
prior to the hearing of the appeal because the
hearing was about to
commence. He added that he decided to wait for the outcome of the
case as judgment in his favour would have
rendered it unnecessary to
ask for recusal.
In
addition, the applicant alleges in his replying affidavit that after
the filing of his application for leave to appeal in this
Court, he
discovered that, prior to their appointment to the bench, Cachalia
and Malan JJA were both previously employed by the
Institute of
Banking and Finance Law at Rand Afrikaans University (now the
University of Johannesburg). The Institute, founded
by Malan JA, was
mainly sponsored by five major South African banks, with Absa Bank
being the main sponsor. As the main sponsor,
Absa Bank paid the
salaries of Cachalia and Malan JJA as well as for their overseas
research trips whilst they were in the employ
of the Institute. This
prior association, the applicant contends, disqualified both judges
from sitting in the appeal.
Shareholding
in Absa Bank by Cachalia JA
The
applicant submitted that Cachalia JA should have recused himself of
his own accord because he had a financial interest in
Absa Bank. The
“value, nature and extent of the ownership of the shares . . .
[was] irrelevant”, the applicant argued.
He submitted that it
was reasonable to apprehend that Cachalia JA would not hand down a
judgment in his favour, given the magnitude
of his claim. The
applicant did not refer to any specific authority in support of
these submissions other than to refer broadly
to Supreme Court of
Appeal case law on bias.
31
To
meet this argument, Absa Bank submitted that the applicant was
barred from raising bias based on recusal because his attorney
had
knowledge of the circumstances giving rise to recusal immediately
before the appeal was argued and the applicant himself
had this
knowledge after the hearing and some weeks prior to the delivery of
judgment. This conduct, on the part of the applicant,
amounts to an
unequivocal election not to ask for the recusal and this was a clear
and unequivocal decision to abandon the right
to raise the issue of
recusal, Absa Bank maintained. In support of this submission, Absa
Bank referred us to the decision of
the High Court of Australia in
Vakauta v Kelly
.
32
In the alternative, Absa Bank submitted that the interest that
Cachalia JA held in it was “so clearly trivial in nature
as to
be disregarded under the
de minimis
principle”. In this
regard, we were referred to the Appellate Division decision in
BTR
,
33
the English Court of Appeal decision in
Locabail
34
and the High Court of Australia decision in
Ebner
.
35
On
the issue of prior association between Absa Bank and Cachalia and
Malan JJA, Absa Bank submitted that this attack does not
meet the
test for the apprehension of bias.
Applicable
legal principles
Ownership
of shares in a litigant company is one of the possible sources of
interest that a judicial officer can have in a litigant.
And this
interest may give rise to a suggestion that the judicial officer has
an interest in the outcome of litigation. The ownership
of shares in
Absa Bank by one of the judges of appeal, as well as the prior
association of the two judges of appeal with Absa
Bank, illustrate
the difference in the nature and degree of associations, and
therefore, any potential interests that might exist.
The association
that a judicial officer has with a litigant company may or may not
have the potential to raise the question of
the impartiality of the
judicial officer. And it may or may not give rise to a suggestion
that a judicial officer has an interest
in the outcome of the
proceedings. The question for decision in this case is when will
shareholding or other financial interest
in a litigant company by a
judicial officer give rise to a reasonable apprehension of bias.
Inevitably,
a reasonable, objective and informed person would reasonably
apprehend that a judicial officer who has a direct financial

interest in the outcome of proceedings would not bring an impartial
mind to bear on the adjudication of the case. Although a
judicial
officer may have a pecuniary interest in the form of shares or other
financial interest in a company that is a party
to the proceedings
before him or her, that does not necessarily mean that the judicial
officer has a financial interest in the
outcome of those
proceedings. In many cases in which a company is a party to the
litigation, the outcome of the proceedings may
have no capacity to
affect the value of the shares held by the judicial officer or his
or her ownership of those shares. A reasonably
informed litigant,
therefore, would not reasonably apprehend that, simply because a
judicial officer owns shares in a litigant
company, the judicial
officer would not bring an impartial mind to bear in adjudicating
the case. But at the same time, it cannot
be assumed that
proceedings in which a company is a party will not affect the shares
held by the judicial officer in that company
or his or her interest
in those shares.
When
then does ownership of shares by a judicial officer in a litigant
company give rise to a reasonable apprehension of bias?
In
Australia, the question whether a judge, who has shares or some
other financial interest in a litigant company before him
or her,
has an interest in the outcome of proceedings is resolved by asking
whether there is a realistic possibility that the
outcome of the
litigation would affect the value of the shares or interest of the
judge in the litigant company.
36
If the answer is in the affirmative, the judge is disqualified,
otherwise not. The High Court of Australia has emphasised that
the
judge is disqualified because “a fair-minded lay observer
might reasonably apprehend that the judge might not bring
an
impartial mind to the resolution of the case.”
37
Articulating
the application of the reasonable apprehension of bias test to
shareholding, the High Court of Australia said:
“
[W]here
a judge owns shares in a listed public company which is a party to,
or is otherwise affected by, litigation, and there is
no other
suggested form of interest or association, the question whether there
is a realistic possibility that the outcome of the
litigation would
affect the value of the shares will be a useful practical method of
deciding whether a fair-minded observer might
hold the relevant
apprehension. In such a case, if the answer to the question is in the
negative, the judge is not disqualified.
If the answer to the
question is in the affirmative, the judge is disqualified, not
‘automatically’, but because, in
the absence of some
countervailing consideration of sufficient weight, a fair-minded lay
observer might reasonably apprehend that
the judge might not bring an
impartial mind to the resolution of the case.”
38
English
courts have adopted the automatic disqualification rule.
39
This rule is invoked where a judge is shown to have a financial or
proprietary interest in the outcome of a case in which he
or she is
to decide. In this situation “the existence of bias is
effectively presumed”.
40
The basic rule and its rationale were expressed as follows in
Locabail
:
“
The
basic rule is not in doubt. Nor is the rationale of the rule: that if
a judge has a personal interest in the outcome of an issue
which he
is to resolve, he is improperly acting as a judge in his own cause;
and that such a proceeding would, without more, undermine
public
confidence in the integrity of the administration of justice”.
41
It
is, however, clear that mere interest in the litigant does not
automatically disqualify a judge. As the Court of Appeal put
it:
“
In the
context of automatic disqualification the question is not whether the
judge has some link with a party involved in a cause
before the judge
but whether the outcome of that cause could, realistically, affect
the judge’s interest.”
42
In
this regard, the Court of Appeal cited with approval the majority
judgment of the Victoria Court of Appeal in
Clenae
where
Charles JA said:
“
If
there is a separate rule for automatic disqualification for financial
interest, unrelated to a reasonable apprehension of bias,
in my view
the irrebuttable presumption of bias only arises (subject to
questions of waiver or necessity) where the judicial officer
has a
direct pecuniary interest in the outcome of the proceeding.”
43
And
Winneke P, concurring, said:
“
I
agree with Charles J.A. that authority which binds this court does
not compel us to conclude that it is the mere shareholding
by a
judicial officer (‘judge’) in a party which, alone,
constitutes the ‘disqualifying pecuniary interest’,
but
rather it is the potential interest, created by that shareholding, in
the subject matter or outcome of the litigation which
is the
disqualifying factor.”
44
These
cases suggest that the basic approach to the question whether an
interest in a litigant gives rise to an interest in the
outcome is
the same under English law and Australian law. The question to ask
is whether there is a realistic possibility that
the outcome of the
litigation would affect the interest that the judge has. In English
law, an affirmative answer leads to “automatic

disqualification”. In Australia, it leads to disqualification,
not, as the High Court of Australia emphasised, because
of an
automatic disqualification rule, but because a reasonably informed
litigant might reasonably apprehend bias.
45
This rider reflects the differences in the way the common law of
recusal in these countries has developed.
The
approach of our law to the problem must be informed by our test for
apprehended bias. What must be borne in mind is that,
in deciding
whether a judicial officer might be biased, it is not necessary to
predict how the judicial officer will in fact
approach the matter.
As the High Court of Australia has observed, “[t]he
apprehension of bias principle admits of the possibility
of human
frailty.”
46
In addition, it must take into account the presumption of
impartiality which can only be displaced by cogent evidence. The

allegation that a judicial officer has an interest in the
proceedings or an interest in a party to the proceedings is not
sufficient
to give rise to a reasonable apprehension of bias. What
is required is the articulation of the connection between the
interest
alleged and the feared deviation from impartial
adjudication of the case. But we must, at the same time, not lose
sight of the
fact that at issue is not whether there was actual
bias, but whether there was a reasonable apprehension of bias.
It
seems to me that asking the question whether there is a realistic
possibility that the outcome of the proceedings would affect
the
judicial officer’s interest, is a useful practical method of
deciding whether a judicial officer has an interest in
the outcome
of the case. This approach to the problem is consistent with our
test for the apprehension of bias. If the answer
to this question is
in the affirmative, then the judicial officer has an interest in the
outcome of the case and a reasonably
informed litigant will
reasonably apprehend that the judicial officer will not bring an
impartial mind to bear on the adjudication
of the case. In that
event, the judicial officer is disqualified from sitting in the
case.
By
contrast, where there is no realistic possibility that the outcome
of the proceedings could affect a judicial officer’s
interest,
a reasonably informed person will not reasonably apprehend that the
judicial officer might be biased. Then no reasonable
apprehension of
bias can arise and the judicial officer is not disqualified from
sitting. This will generally be the case where
the judicial officer
holds a relatively small number of shares in a large company and the
amount involved in the litigation is
not such that it could
realistically affect the value of the judicial officer’s
shares or dividends. It may also be the
case where the judicial
officer has a savings, fixed deposit or current account.
However,
even in those situations where there is no realistic possibility
that the outcome of a case would affect a judicial officer’s

interest or shareholding, it is nevertheless desirable that the
judicial officer should disclose the nature, extent and value
of his
or her interest to the parties. Disclosure should be made no matter
how small the interest may be. Litigants should not
be left with the
impression that the judicial officer is hiding his or her interest
in the case from them. This is likely to
be the case where there was
no prior disclosure and the parties subsequently discover that the
judicial officer had an interest.
This may raise questions about the
impartiality of the judicial officer in circumstances where this
would not have been the case
if there had been prior disclosure. And
this may well undermine public confidence in the judiciary.
It is
apparent from the above that the nature and extent of the interest
in the shares or the value of the shares are relevant
considerations
in this enquiry. These constitute “the correct facts”
which an “informed person” must
possess before he or she
can “reasonably apprehend that the Judge has not or will not
bring an impartial mind to bear on
the adjudication of the case”.
47
I am, therefore, unable to uphold the submission by the applicant
that how many shares in Absa Bank Cachalia JA held, what they
were
worth and what proportion of the bank’s issued share capital
they constituted, are irrelevant. These facts are necessary
in order
to assess the reasonableness of the apprehension of bias and they
may well demonstrate whether there is any logical
connection between
the interest held and the feared deviation from impartial
adjudication.
What
remains to be considered is the decision of the Appellate Division
in
BTR
.
48
This decision, at first glance, appears to suggest that the
de
minimis
rule is an exception to the requirement that a judicial
officer, who has an interest in the outcome of the case, must recuse

himself or herself. That case did not involve ownership of shares in
a litigant company. The question in that case was whether
the
presiding member, who was one of three Industrial Court members
hearing a labour dispute between BTR and a labour union,
had, by
attending a labour seminar organised by a firm of labour consultants
that had been advising BTR in the dispute before
the Industrial
Court, associated himself with the “camp of the enemy”
and thus created a reasonable apprehension
of bias in the minds of
the union officials. The presiding member attended the seminar at
the invitation of the firm concerned
and prior to the completion of
the proceedings in which he was presiding. At the seminar, the legal
representatives of BTR, as
well as the Industrial Court member
concerned, presented papers.
Both
the court of first instance and the appeal court held that the
presiding member displayed too great an association with the
firm
and this would have created a reasonable apprehension of bias in the
reasonable minds of union officials. In the course
of discussing the
applicable legal principles, the appeal court said:
“
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) 2 QBD 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 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.”
49
It is
not apparent from this passage whether the court intended to lay
down the rule that a judicial officer who has any interest
in the
outcome of a case must recuse himself or herself from the case no
matter how small the interest may be. The statement
that the law
does not seek to measure the amount of interest may very well be
construed as laying down such a rule. But the qualification

introduced in parenthesis, namely, “save an interest so
clearly trivial in nature as to be disregarded under the
de
minimis
principle”, seems to suggest that not all
interests in the outcome of a case should lead to disqualification.
This
passage must be understood in the context of the apprehension of
bias test which the court adopted, and in particular, the
statement
that “the matter stands no differently with regard to the
apprehension of bias by a lay litigant.”
50
What the court had in mind, it seems to me, was that the interest
held by a judicial officer must be such that it gives rise
to a
“suspicion of partiality . . . which might reasonably be
entertained by a lay litigant”.
51
The court must be understood as holding that where the interest of a
judicial officer in proceedings is so clearly trivial in
nature, it
will not give rise to a suspicion of partiality which might
reasonably be entertained by a lay litigant. But where
the interest
is not trivial in nature, it may give rise to a suspicion of
partiality. And “[i]f suspicion is reasonably
apprehended,
then that is an end to the matter.”
52
Thus understood, this is consistent with the test for a reasonable
apprehension of bias.
It
follows that the contention that the mere ownership of shares by
Cachalia JA was, without more, sufficient to disqualify him
from
sitting in the case cannot be upheld.
The
question which a judicial officer should subjectively ask himself or
herself, therefore, is whether, having regard to his
or her share
ownership or other interest in one of the litigants in proceedings,
he or she can bring the necessary judicial dispassion
to the issues
in the case. If the answer to this question is in the negative, the
judicial officer must, of his or her own accord,
recuse himself or
herself. If, on the other hand, the answer to this question is in
the affirmative, the second question to ask
is whether there is any
basis for a reasonable apprehension of bias on the part of the
parties, whether on the basis of an interest
in the outcome of the
case, interest in one of the litigants (by shareholding, family
relations or otherwise) or attachment to
the case. If the answer to
this question is in the affirmative, the judicial officer must
disclose his or her interest in the
case, no matter how small or
trivial that interest may be. And in the event of any doubt, a
judicial officer should err in favour
of disclosure.
What
has been described in the preceding paragraph is more than a matter
of prudence of professional practice which should guide
judicial
officers when they have an interest or association which has the
potential to disqualify them. The rule of practice
described above
has become established. It has been followed by judicial officers
for a long time. Indeed, this is the practice
Cachalia JA followed
when he made the disclosure. Similarly, at the hearing of this case,
some members of this Court disclosed
their interest in Absa Bank
arising from banking accounts they held in it. The advantage of this
requirement is that it gives
the parties the opportunity to object
to the judicial officer sitting or bring to the attention of the
judicial officer some
aspect of the case that has a bearing on the
shareholding or interest that the judicial officer might have
overlooked.
53
Failure to disclose an interest, in itself, does not lead to a
reasonable apprehension of bias. However it may be relevant, if
at
all, “only because it may be said to cast some evidentiary
light on the ultimate question of reasonable apprehension
of bias.”
54
As I
have stated above, the test for bias in our law is by now settled.
That test is whether a reasonable, objective and informed
person
would, on the correct facts, reasonably apprehend bias. Ownership of
shares in a litigant company is a form of association
with, and an
interest in, a litigant in a case. It may or may not give rise to a
suggestion that a judicial officer has an interest
in the outcome of
the proceedings. And this may or may not give rise to a reasonable
apprehension of bias. If it does, the judicial
officer concerned is
disqualified from sitting in the case. Our test of reasonable
apprehension of bias is, therefore, wide enough
to address the
situation where a judicial officer owns shares in a litigant
company.
I
would therefore hold that the question that falls to be determined
on this aspect of the case is whether, the apprehension that

Cachalia JA might, on the facts and circumstances of this case, not
bring an impartial mind to bear on the adjudication of the
case, was
reasonably held. Relevant to this determination is the value, nature
and extent of Cachalia JA’s shareholding
in Absa Bank, the
disclosure of his shareholding and the applicant’s failure to
object to Cachalia JA sitting, immediately
before the commencement
of the hearing and before delivery of the judgment. This question
must, as pointed out earlier, be considered
in the light of the
presumption of impartiality and the double-requirement of
reasonableness.
Application
of principles to this case
The
share capital of Absa at the time amounted to approximately R100
billion. If successful in all he claimed, the applicant would
have
been awarded at most R187 million. This represents 0.187% of
R100 billion. This outcome of the case, in my view, could
not
realistically impact in any significant way on the share price of
Absa Bank. There was, therefore, no realistic possibility
that the
outcome of the proceedings could affect the value of shares held by
Cachalia JA in Absa Bank; nor was there a realistic
possibility that
his shareholding in Absa Bank could influence his decision either
way.
Even
if it could be said that there was some basis for a reasonable
apprehension of bias, Cachalia JA disclosed his shareholding
in Absa
Bank. Shortly after the hearing the applicant was told of the
shareholding and yet did not object. Nor has the applicant
pointed
to any conduct on the part of Cachalia JA before, during or after
the hearing that could possibly have inspired a reasonable

apprehension of bias. And the applicant has not pointed to any
aspect of the judgment that has any bearing on the shareholding.
There
is a further hurdle besetting the applicant’s pathway to
success on this issue: the delay in raising the issue of
recusal.
The applicant’s erstwhile attorney was advised of the
shareholding in Absa Bank prior to the hearing of the appeal.
There
was no objection to Cachalia JA sitting in the appeal until after
the delivery of judgment which went against the applicant.
The
applicant sought to explain failure to object prior to the hearing
on the basis that there was little or no time for his
attorney to
inform him of the shareholding prior to the commencement of the
hearing. He sought to explain the failure to raise
the issue of
recusal prior to delivery of the judgment on the basis that, had
judgment been in his favour, there would have been
no need to ask
for recusal. Absa Bank contended that the applicant, by his conduct
in not seeking recusal earlier on, had abandoned
his right to do so.
The
applicant had about 39 days from the date of becoming aware of the
shareholding to the date of delivery of the judgment. He
could have
asked for time to consider his position. He could have asked
Cachalia JA to recuse himself and, if his application
had merit, he
could have had the proceedings started afresh before another panel.
Instead he did nothing. Judgment was reserved
and delivered nearly
six weeks later. He sprang into action and began complaining about
bias only after the judgment had gone
against him.
It
was not open to the applicant to wait for the outcome of the appeal
before pursuing his complaint of bias. It is highly desirable,
if
extra costs, delay and inconvenience are to be avoided, that
complaints of this nature be raised at the earliest possible
stage.
A litigant should not wait for the outcome of the appeal before
raising a complaint based on recusal where all the facts
giving rise
to the recusal complaint were known to the litigant. The conduct of
the applicant is simply inconsistent with a reasonable
apprehension
of bias. If he had any apprehension, it must have been of the kind
that he thought could be cured by a judgment
in his favour. But that
can hardly be said to be a reasonable apprehension of bias that is
reasonably entertained. The applicant
wanted to have the best of
both worlds.
In
Locabail
, the Court of Appeal held that if, after disclosure
of interest in one of the parties to proceedings, a party does not
raise
any objection to the judge hearing the case or continuing to
hear the case, that party cannot thereafter complain of the matter

disclosed as giving rise to a real danger of bias.
55
To allow a party to complain of bias in these circumstances “would
be unjust to the other party and undermine both the
reality and the
appearance of justice”.
56
Similarly, in Australia it has been held that:
“
It
would be unfair and wrong if failure to object until the contents of
the final judgment were known were to give the party in
default the
advantage of an effective choice between acceptance and rejection of
the judgment and to subject the other party to
a situation in which
it was likely that the judgment would be allowed to stand only if it
proved to be unfavourable to him or her.”
57
In
England and Australia, the rationale for this bar is grounded in
waiver.
58
Although counsel for Absa Bank did not expressly say so, it is
apparent that he was inviting us to find that the applicant had

waived his right to raise recusal. The issue is not one of waiver.
For waiver to occur, it must be established that the litigant
“has
acted freely and in full knowledge of the facts.”
59
It is difficult to see how the concept of waiver could be imposed on
the facts of this case. As counsel for Absa Bank properly
conceded,
there is a great likelihood that the applicant was simply hoping
that, despite the adverse tone of the Supreme Court
of Appeal
hearing, the court would still rule in his favour. It is therefore
unlikely, as a matter of fact, that subjectively
he waived his right
to seek the recusal of Cachalia JA.
In my
view, whether a litigant should be allowed to raise the issue of
recusal at a later stage, despite an earlier opportunity
to do so,
implicates the interests of justice and not waiver. The question is
whether it is in the interests of justice to permit
a litigant,
having knowledge of all the facts upon which recusal is sought, to
wait until an adverse judgment before raising
the issue of recusal.
Here five appellate judges pondered the judgment for 39 days before
deciding the matter and expended public
resources in doing so.
Cachalia JA was never afforded the opportunity to withdraw from the
matter before judgment was delivered.
In addition, the interests of
justice demand that the interests of other litigants be considered.
Absa Bank invested both time
and money in seeking a final outcome to
the dispute, and it is entitled to one.
It
thus seems to me that, in our law, the controlling principle is the
interests of justice. It is not in the interests of justice
to
permit a litigant, where that litigant has knowledge of all the
facts upon which recusal is sought, to wait until an adverse

judgment before raising the issue of recusal. Litigation must be
brought to finality as speedily as possible. It is undesirable
to
cause parties to litigation to live with the uncertainty that after
the outcome of the case is known, there is a possibility
that
litigation may be commenced afresh because of a late application for
recusal which could and should have been brought earlier.
To do
otherwise would undermine the administration of justice.
In
the event, it is not in the interests of justice, at this late
stage, to permit the applicant to raise a complaint of bias
based on
shareholding by Cachalia JA.
For
all these reasons, the applicant has not made out a case that
Cachalia JA should have recused himself by reason of his
shareholding
in Absa Bank.
Prior
association with Absa Bank
Prior
association with an institution cannot form the basis of a
reasonable apprehension of bias “unless the subject-matter
of
the litigation in question arises from such associations or
activities.”
60
Most judicial officers would have been engaged in a number of
activities in pursuit of their professional lives before their

appointment. These activities contribute to the expertise that
judicial officers bring to the bench. What is required is that

judicial officers should decide cases that come before them without
fear, favour or prejudice according to the facts and the
law and not
according to their subjective personal views.
61
Of course, where a judicial officer, in his or her former capacity,
either advised or acquired personal knowledge relevant to
a case
before the court, it would not be proper for that judicial officer
to sit in that case.
There
is no suggestion in this case that the subject-matter of the
litigation arises from the association which Cachalia and Malan
JJA
had with Absa Bank prior to their appointment to the bench. Nor is
there any suggestion that in the course of their association
with
Absa Bank, the two judges of appeal acquired personal information
that was relevant to the appeal before them. Nor do I
consider that
there was any obligation on the two judges of appeal to disclose
their prior association with Absa Bank. In
SARFU
II
,
this Court said that “[j]udicial officers are obliged to
disclose only such facts as might reasonably be relevant to a

recusal application.”
62
Non-disclosure of irrelevant facts cannot, therefore, be a basis for
a reasonable apprehension of bias.
No
case, therefore, has been made that Cachalia and Malan JJA should
have recused themselves because of prior association with
Absa Bank.
It
now remains to consider whether the applicant has established a
reasonable apprehension of bias on the basis of conduct during
the
appeal hearing and the findings in the judgment.
Has the
applicant otherwise established a reasonable apprehension of bias?
The
facts and allegations upon which the applicant relies in support of
bias can broadly be divided into two categories, namely,
(a) remarks
and interventions made by the presiding judge during argument and
(b) incorrect factual findings made in the judgment.
In relation to
(a), the argument is that the remarks, conduct and interventions by
the presiding judge give rise to a reasonable
apprehension of bias.
The argument in relation to (b) is that the factual findings made
against the applicant are not only incorrect,
but are also so
unreasonable as to give rise to a reasonable apprehension of bias.
The applicant did not contend that these factual
findings, viewed
individually, give rise to a reasonable apprehension of bias but
relied upon their cumulative effect.
It
would be convenient to deal first with the alleged remarks and
interventions made by the presiding judge during argument, which
for
convenience’s sake I shall refer to as “conduct during
argument”.
Conduct
during argument
The
applicant’s complaint under this head falls into at least
three categories: first, he complains that his attorney, who

represented him as the respondent in the Supreme Court of Appeal,
was called upon to argue first instead of the legal representative

of Absa Bank, the appellant in the Supreme Court of Appeal; second,
in the course of oral argument, the presiding judge displayed
a
hostile attitude and biased demeanour towards him and his attorney;
and third, the presiding judge made disrespectful and humiliating

remarks, often concerning the applicant’s attorney and the
trial judge.
Let
me first recap the applicable legal principles as developed in our
jurisprudence.
A
litigant who bases a reasonable apprehension of bias on remarks and
interventions made by a judicial officer in the course of
a trial or
argument has a formidable hurdle to overcome: the presumption of
impartiality. The complainant must show that the
remarks complained
of “were of such a number or quality as to go beyond any
suggestion of mere irritation . . . and establish
a pattern of
conduct sufficient to dislodge the presumption of impartiality and
replace it with a reasonable perception of bias.”
63
As we explained in
Basson II
, in the context of allegations
of bias arising from remarks and interventions made by a trial
judge:
“
As far
as the first category is concerned, this Court should bear in mind
that in long criminal trials a Judge may at times make
remarks that
are inappropriate, or display irritation towards counsel. At times
such interventions may arise from attempts at humour.
In considering
the question of whether such remarks give rise to a reasonable
apprehension of bias, a court should not hold a Judge
to an ideal
standard which would be difficult to achieve. Moreover, a court
considering a claim of bias must take into account
the presumption of
impartiality, mentioned by this Court in
SARFU
.”
64
(Footnote omitted.)
While
these remarks were made in the context of a trial court, they apply
with equal force to an appellate court. Appellate judges
are no less
irritable than their trial counterparts. This is not to say that
this kind of behaviour is acceptable; it is not.
Judicial officers
should be courteous to both litigants and their legal
representatives. One of the hallmarks of the judicial
process is
listening to all sides. This listening ability is hampered by
interventions which are not conducive to an understanding
of the
litigants’ viewpoint. Constant interruption of counsel and
inappropriate remarks may, in an appropriate case, give
rise to a
reasonable apprehension of bias.
As we
pointed out in
Basson II
—
“
it is
important to emphasise that Judges should at all times seek to be
measured and courteous to those who appear before them.
Even where
litigants or lawyers conduct themselves inappropriately and judicial
censure is required, that should be done in a manner
befitting the
judicial office. Nothing said in this judgment should be understood
as condoning discourteous or inappropriate remarks
by judicial
officers. Inappropriate behaviour by a Judge is unacceptable and may,
in certain circumstances, warrant a complaint
to the appropriate
authorities, but it will not ordinarily give rise to a reasonable
apprehension of bias. It will only do so where
it is of such a
quality that it becomes clear that it arises not from irritation or
impatience with the way in which a case is
being litigated, but from
what may reasonably be perceived to be bias.”
65
With
these legal principles in mind, I now turn to consider each of the
incidents relied upon by the applicant.
Calling
upon the applicant’s attorney to argue first
An
appellate court normally evaluates a written record. The issues of
both fact and law have usually long been crystallised and
the
appellate court has the benefit of advanced written argument in
which the contentions of the parties on those issues are
fully set
out. In these circumstances it is unavoidable that appellate judges
will form a view, albeit a provisional one, on
the issues in the
case. Regrettably, this provisional view is sometimes expressed in
fairly strong terms and is given an outward
manifestation. This
provisional view will become apparent in the issues raised by the
court in the course of the argument. This
may lead the presiding
judge in the appeal to call upon a party to argue out of order.
This, however, does not establish a reasonable
apprehension of bias.
As
the court observed in
R v Silber
:
66
“
It
unavoidably happens sometimes that, as a trial proceeds, the court
gains a provisional impression favourable to one side or the
other,
and, although normally it is not desirable to give such an impression
outward manifestation, no suggestion of bias could
ordinarily be
based thereon. Indeed a court may in a proper case call upon a party
to argue out of the usual order, thus clearly
indicating that its
provisional view favours the other party, but no reasonable person,
least of all a person trained in the law,
would think of ascribing
this provisional attitude to, or identifying it with, bias.”
67
While
these remarks were made in the context of a trial court, they apply
with equal force, if not more, to an appellate court.
The fact that
Mr Bernert’s attorney was called upon to argue first does not
establish a reasonable apprehension of bias.
It is no more than an
outward manifestation of a provisional view held by the court.
Hostile
attitude and demeanour
The
applicant also relied upon certain remarks and conduct on the part
of the presiding judge as showing hostility towards the
applicant’s
case, his attorney and the trial judge. These include what the
applicant described as attacks, criticism and
humiliation of the
applicant’s erstwhile attorney. The one remark that was drawn
to our attention is the following which
was said to have been made
by the presiding judge: “Well Mr Nel, you have a choice, you
can either keep on sweating, like
you are doing now, or we can
switch on the air conditioners but then I can’t hear you any
way . . .”. He also complained
of “various occasions”
in which the presiding judge interrupted his attorney when the
attorney was trying to answer
questions posed by the court. He
complained that the presiding judge would interrupt the attorney “in
a rude manner”
and often did not allow the attorney to finish
answering questions. The disrespectful remark made by the presiding
judge concerning
the trial judge is the allegation that the
presiding judge said “he was sick and tired of ill considered
judgments that
landed up in his Court.”
It
must be kept in mind that the judge concerned has not had the
opportunity to deal with any of the allegations made concerning
him.
It is not practice for judicial officers to respond to allegations
of bias made against them. Absa Bank did not dispute
the applicant’s
account of the hearing before the Supreme Court of Appeal. Instead,
it avers merely that the demeanour
of the presiding judge and the
other judges “was nothing unexpected or untoward”.
If
these remarks concerning the trial court judgment were indeed made,
they were regrettable. Judicial officers must be presumed
to take
their work seriously and that they will not give “ill
considered judgments”. An appellate court may disagree
with
the reasoning of the lower court, but that does not mean that the
judgment of the lower court is ill-considered. It simply
means that
it took a different view of the matter. Even in those rare instances
where the conduct of the lower court is inappropriate
and censure by
the appellate court is required, this should be done in a manner
befitting the judicial office. The appellate
court, it must be
added, has an educational role to play towards the lower court. Its
role is to guide the lower court by pointing
out where it made an
error and how this error should be corrected. And this too, must be
done in a manner befitting the judicial
office.
That
said, however, while some of the remarks may have been unfortunate,
particularly those directed at the applicant’s
attorney and
the trial judge or the manner in which the trial judge approached
the case, they amount to no more than irritation
or impatience. As
pointed out earlier, an appellate court’s benefit of the full
record, issues as crystallised and written
argument on those issues,
will inevitably lead the court to form a provisional impression
favourable to one side. Judicial officers
will put questions to
counsel or their legal representatives based on those impressions
and thereby provide litigants with the
opportunity to rebut any
incorrect impression formed. This does not give rise to a reasonable
apprehension of bias.
Indeed,
robust debate may facilitate open-mindedness and bring clarity to
the difficult issues that appellate courts often have
to decide.
What must be emphasised here is that the presumption of impartiality
and the double-requirement of reasonableness
must both be taken into
account in deciding whether a reasonable litigant would entertain a
reasonable apprehension of bias.
The requirement postulates a
well-informed litigant. And a well-informed litigant will know that
appellate courts, having the
benefit of the record, crystallised
issues and written argument will engage counsel in a way that is
often robust and may at
times be overly so.
In my
view, it is fundamental to our judicial system that judicial
officers are not only independent and impartial, but that they
are
also seen to be independent and impartial. Civility and courtesy
should always prevail in our courts. Litigants should leave
our
courts with a sense that they were given a fair opportunity to
present their case. This is crucial if public confidence in
the
judicial system is to be maintained. And public confidence in the
judicial system is essential to the preservation of the
rule of law
which is so vital to our constitutional democracy. Therefore, legal
representatives should not stand by as spectators
over what may
convey an impression of bias. They should raise any objection as
soon as reasonably practicable. This will allow
the judicial officer
to explain his or her behaviour and, if necessary, correct that
behaviour. Judicial officers, it must be
remembered, are only human.
This will make our courts vigilant of their behaviour and ensure
that they prevent behaviour that
may create an apprehension of bias.
For
all these reasons, I conclude that the remarks and interventions of
the presiding judge, cumulatively and individually, do
not establish
a reasonable apprehension of bias.
Incorrect
factual findings
The
applicant’s contention relating to bias based on incorrect
factual findings rests on three propositions. The first is
that the
Supreme Court Appeal breached the rule that requires an appellate
court to defer to the factual findings of the trial
court; second,
factual findings made by the Supreme Court of Appeal are not borne
out by the record and third, the factual findings
made by the
Supreme Court of Appeal are grossly unreasonable. There is no merit
in any of these propositions. The applicant has
not even attempted
to direct our attention to any part of the record which supports his
contentions. On the contrary, our review
of the record shows that
(a) the Supreme Court of Appeal took a different view of the issues
that had to be decided; (b) the
factual findings made by the Supreme
Court of Appeal are borne out by the record and (c) these findings
are plainly reasonable
on the record.
Apart
from this, a careful analysis of the applicant’s complaints in
this regard reveals that the applicant does not in
fact contest the
accuracy of a number of the factual findings of the Supreme Court of
Appeal complained of. What the applicant
largely seeks to do is to
show that there are other aspects of the evidence that the Supreme
Court of Appeal did not have regard
to; in some instances he offers
an explanation for the evidence criticised by the Supreme Court of
Appeal, in others he says
those findings are irrelevant. Most of
these aspects are not entirely relevant to the issues that the
Supreme Court of Appeal
considered it had to decide. But perhaps
more importantly, these aspects neither show that the findings are
wrong nor that they
are unreasonable. In substance, therefore, the
applicant is challenging the factual findings of the Supreme Court
of Appeal though
in form he is complaining about bias. This
challenge reduces itself to an appeal on facts masquerading as a
complaint based on
bias. This Court should not countenance this
approach to litigation.
As we
held in
Basson II
, “a mistake on the facts, even if
correct, is not ordinarily sufficient on its own to give rise to a
reasonable apprehension
of bias.”
68
Judicial officers are not super-human beings who do not make
mistakes. That is why there is an appellate process to correct
mistaken findings on law or facts. A mistake on the facts will only
give rise to a reasonable apprehension of bias if it is so

unreasonable on the record that it is inexplicable except on the
basis of bias.
69
A litigant who relies on bias based on incorrect factual findings
bears the onus of establishing this fact. This is a formidable
onus
to discharge.
What
this implies is that the applicant must first establish that the
factual findings are erroneous on the record. The question
whether
the mistake on the facts is so unreasonable as to be explicable only
on the ground of bias, only arises once it has been
established that
the factual findings are erroneous. Where a litigant fails to
establish a factual error, the question of unreasonableness
will not
arise, and the litigant fails at the first hurdle. To overcome the
second hurdle, namely, that the mistake of fact is
so unreasonable
as to be explicable only on the ground of bias, the litigant must
establish that the mistake of fact is more
than a normal factual
misdirection. The fact that another court would have had a different
appreciation of the facts cannot found
a complaint of bias.
70
For a mistake of fact to give rise to a reasonable apprehension of
bias, it must be “so out of kilter with the evidence
led that
[it is] explicable only on the grounds of bias.”
71
As
part of establishing the case of bias, it is therefore incumbent
upon a litigant to refer the court to the parts of the record
that
support the contention that the passages under attack are not borne
out by the record. Failure to do so will, in an appropriate
case,
lead to the dismissal of the application on this ground alone. A
claim that a judicial officer was biased because he or
she ignored
the evidence is a very serious accusation against a judicial
officer. In effect, it amounts to an accusation of dishonesty
on the
part of the judicial officer. Litigants should not make bald and
sweeping accusations of bias and fail to back them up
with evidence.
Unsubstantiated accusations of bias undermine public confidence in
the judicial system and imperil the rule of
law. Litigants should
therefore take care not to make unsubstantiated allegations of bias.
It is for this reason that courts
should insist on the litigant
demonstrating, by reference to the record, that the findings are in
fact incorrect.
The
applicant made much of the fact that the Supreme Court of Appeal
overruled factual findings of the High Court. Much store
was placed
by the applicant in the decision of the Appellate Division in
R v
Dhlumayo and Another
,
72
which dealt with the deference to be paid by the appellate court to
the factual findings of the trial court. In
SARFU III
,
73
this Court addressed the appropriate level of deference to be
afforded to a trial court’s credibility finding and said
the
following:
“
The
advantages which the trial court enjoys should not, therefore, be
over-emphasised ‘lest the appellant’s right of
appeal
becomes illusory’. The truthfulness or untruthfulness of a
witness can rarely be determined by demeanour alone without
regard to
other factors including, especially, the probabilities. . . . [A]
finding based on demeanour involves interpreting the
behaviour or
conduct of the witness while testifying. The passage from
S
v Kelly
above correctly highlights the dangers attendant on such
interpretation. A further and closely related danger is the implicit
assumption, in deferring to the trier of fact’s findings on
demeanour, that all triers of fact have the ability to interpret

correctly the behaviour of a witness, notwithstanding that the
witness may be of a different culture, class, race or gender and

someone whose life experience differs fundamentally from that of the
trier of fact.”
74
(Footnotes omitted.)
What
must be stressed here, is the point that has been repeatedly made.
The principle that an appellate court will not ordinarily
interfere
with a factual finding by a trial court is not an inflexible rule.
It is a recognition of the advantages that the trial
court enjoys
which the appellate court does not. These advantages flow from
observing and hearing witnesses as opposed to reading
“the
cold printed word.”
75
The main advantage being the opportunity to observe the demeanour of
the witnesses. But this rule of practice should not be used
to “tie
the hands of appellate courts”.
76
It should be used to assist, and not to hamper, an appellate court
to do justice to the case before it. Thus, where there is
a
misdirection on the facts by the trial court, the appellate court is
entitled to disregard the findings on facts and come to
its own
conclusion on the facts as they appear on the record.
77
Similarly, where the appellate court is convinced that the
conclusion reached by the trial court is clearly wrong, it will

reverse it.
78
The
applicant has not been able to draw our attention to any specific
factual findings of the Supreme Court of Appeal which he
alleges
overruled the factual findings of the High Court. The only instances
that I have been able to identify are those relating
to the
criticism of witnesses such as the Sheikh and Mr Fanjek.
79
Those aspects of the Supreme Court of Appeal judgment are supported
by the record.
80
The applicant does not, therefore, even begin to overcome the first
hurdle, namely, that the findings of the Supreme Court of
Appeal are
erroneous.
What
presents an insurmountable hurdle for the applicant on this aspect
of the case is how the Supreme Court of Appeal approached
the
matter. The Supreme Court of Appeal found that this was not a case
about the enforcement of the terms of a contract where
“the
understanding of the parties to the document might have been
relevant.”
81
The issue to be decided “was whether Absa Bank was obliged to
allow Emirates Bank, and indeed others to whom [the alleged

guarantee] might have been presented, to rely upon its
authenticity.”
82
The answer to this question lay not in what the witnesses said the
document meant, but in “what third parties might have
thought
it meant”,
83
the court held.
The
approach of the Supreme Court of Appeal to the case appears from the
following passages in its judgment:
“
This
was not a claim to enforce the terms of a contract, in which event
the understanding of the parties to the document might have
been
relevant. The claim was that Absa Bank was not justified in advising
Emirates Bank that the document had been issued without
authority and
in irregular circumstances. In those circumstances the question was
not how the Sheikh or Mr Fanjek or even Mr Bernert
understood the
document. The question was whether Absa Bank was obliged to allow
Emirates Bank, and indeed others to whom it might
have been
presented, to rely upon its authenticity. Clearly it was not obliged
to do so if the document was capable of misleading
third parties.
Both Mr Merritt and Mr Van Tonder believed that the document was
indeed capable of misleading third parties and
they were perfectly
correct.
It needs to be borne in mind
that the meaning that was given to the document by the witnesses, and
by the court, was teased out
from selected passages from the
document, while ignoring other passages altogether. And if one
meaning can be teased out of selected
passages, when read in
isolation, then a different meaning is capable of being teased out
from contradicting passages, when they
are also read in isolation. In
my view the court below ought to have directed itself less to what
the witnesses told it that the
document meant, and more to what third
parties might have thought it meant, particularly if they were told
that it had a different
meaning.”
84
On
the Supreme Court of Appeal’s approach to the problem,
therefore, the question was whether, having regard to the contents

of the alleged guarantee, it was capable of misleading third
parties, in particular, “if it [was] presented in the context

of documentation indicating that it [was] part of a larger
transaction”, so as to justify Absa Bank in warning Emirates

Bank that the document had been issued without its authority and in
irregular circumstances.
85
The court answered this question in favour of Absa Bank.
This
appears in the following passage in the judgment of the court:
“
I do
not intend going through the document in detail. It is sufficient to
say that at the commencement of argument Mr Bernert’s
attorney
was asked to suggest a coherent meaning of the document when all its
terms are read as a whole. He was not able to do
so and the reason
for that is plain. When all the terms are read together the document
is a compendium of gibberish. I have no
doubt that a document
containing gibberish on the letterhead of a major financial
institution is capable of misleading third parties
as to its meaning,
perhaps even more so if it is presented in the context of
documentation indicating that it is part of a larger
transaction, and
that Absa Bank was entitled to ensure that that did not occur. The
fact that the document might not have been
intended to be used in
that way is immaterial. Absa Bank was not to know where the document
might have ended up. I think it goes
without saying that whatever
authority Mr Coetzee might have had he had no authority to issue
gibberish that had the potential
to mislead, and that the issuing of
gibberish that might mislead does not fall within the regular
business of a bank.”
86
The
only aspect of this paragraph that the applicant attacked was the
finding that “whatever authority Mr Coetzee might
have had he
had no authority to issue gibberish that had the potential to
mislead, and that the issuing of gibberish that might
mislead does
not fall within the regular business of a bank.”
87
He argued that the alleged guarantee “is clearly not gibberish
and the justification for finding that Mr. Coetzee did not
have the
authority to issue the letter falls away.” He argued that this
finding is so patently wrong that it leads to an
inference of bias.
I am
unable to agree with this criticism of the finding of the Supreme
Court of Appeal. One need only read the alleged guarantee
to
conclude that it is unintelligible. Indeed, the High Court too
described the alleged guarantee as “strange and confusing.”

The finding by the Supreme Court of Appeal is amply supported by the
record. The applicant, therefore, has not shown that the
finding
complained of is erroneous. He therefore fails at the first hurdle
and the question whether a reasonably informed litigant
could have
apprehended bias does not arise.
The
applicant complains that, in deciding the appeal, the Supreme Court
of Appeal made a host of unreasonable findings of fact
which are not
borne out by the record. In pursuing this line of attack, he
sacrifices quality for quantity. The founding affidavit
alone
identifies 13 paragraphs in the Supreme Court of Appeal judgment
which, in the applicant’s view, are not reasonably
justifiable
on the facts and amount to gross unreasonableness. Other like claims
are sprinkled throughout the applicant’s
submissions. At the
hearing, counsel for the applicant identified 17 paragraphs, some
old and some new, which purportedly suffer
from similar defect. As I
have pointed out above, what the applicant has not done in giving us
the long list of paragraphs is
to point to the portions of the
record which support his various assertions. Nevertheless, an
exhaustive review of the record
in the light of the Supreme Court of
Appeal’s factual findings reveals that the applicant’s
complaints are not borne
out by the record. It is not necessary in
this judgment to rehearse each paragraph.
Conclusion
on incorrect factual findings
I
have carefully considered the paragraphs in the judgment of the
Supreme Court of Appeal complained of by the applicant in the
light
of the legal principles set out above. I am unable to conclude on
the record that any specific factual finding is so out
of kilter
that it is inexplicable except on the basis of bias. On the
contrary, I have found that the applicant’s complaints
with
the Supreme Court of Appeal judgment are not borne out by the
record. Nor does he contest the accuracy of a number of the
factual
findings. Where he contested factual findings, I have found those
findings to be borne out by the record. In any event,
given the
approach the Supreme Court of Appeal took to the central issue in
the case, none of the other passages complained of
are material to
that court’s finding on the crucial issue of the authority and
regularity of the alleged guarantee. I am,
therefore, unable to
uphold the argument that the Supreme Court of Appeal was biased
because of incorrect and unreasonable factual
findings.
For
all these reasons, all the challenges based on bias must be
dismissed.
Challenge
based on natural justice
In
this Court, the applicant contended for the first time that before
sending a letter to Emirates Bank advising it of irregularity
and
lack of authority in the issuing of the alleged guarantee, Absa Bank
was bound by the rules of natural justice to give him
a hearing.
This contention neither formed part of the pleadings nor was it
advanced in either of the courts below. It cannot
be entertained by
this Court at this stage. This challenge therefore falls to be
dismissed.
In
the result, the appeal must fail.
Costs
There
is no reason to depart from the general rule relating to costs,
namely, that costs should follow the result. The applicant
is
pursuing a private interest against a private bank. He must,
therefore, bear the costs of this litigation in all courts.
Order
In
the event, the following order is made:
The
late filing of the application for leave to appeal as well as the
late filing of the record is condoned.
The
applicant is granted leave to appeal.
The
appeal is dismissed with costs, including the costs of two counsel.
Moseneke
DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J,
Nkabinde J, Skweyiya J and Yacoob J concur in the judgment
of
Ngcobo CJ.
For the Applicant: Advocate LJ Lowies instructed by Hauptfleisch.
For the Respondent: Advocate PG Robinson SC and Advocate SW Burger
instructed by Eversheds.
1
Absa
Bank Limited v Enrico Bernert
, Case No 99/09, Supreme Court of
Appeal, 29 March 2010, unreported.
2
Rico
Bernert v Absa Bank Limited
, Case No 14302/03, Transvaal
Provincial Division, 15 October 2008, unreported.
3
Above
n 1
at para 72.
4
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC
3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3
;
Van Wyk v Unitas Hospital and Another
(Open Democracy Advice Centre as Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20 and
Glenister v President of the Republic
of South Africa and Others
[2008] ZACC
19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC) at para 8.
5
S
v
Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) (
Basson
I
) at paras 21-2.
6
Id.
7
Id
at para 22.
8
Sections
34 and 165(2) of the Constitution. See also
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC
9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (
SARFU
II
) at para 30 and
S v
Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC) (
Basson II
)
at para 27.
9
Id.
10
SARFU
II
above n 8 at paras 36-9.
11
Id
at
para 48.
12
South
African Commercial Catering and Allied Workers Union and Others v
Irvin and Johnson Ltd (Seafoods Division Fish Processing)
[2000]
ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC) (
SACCAWU
)
at paras 12-7.
13
SARFU
II
above n 8 at paras 41-2.
14
Section
165(2) of the Constitution.
15
Item
6 of Schedule 2 to the Constitution and
section 9(2)(a)
of the
Magistrates’ Courts Act 32 of 1944
.
16
Blackstone
Commentaries on the Laws of England III
15 ed (Professional Books Ltd, Abingdon 1982)
361.
17
SARFU
II
above n 8 at para 48.
18
Id
at para 40 and
SACCAWU
above
n 12 at para 14.
19
SARFU
II
above n 8 at para 41.
20
SACCAWU
above n 12 at para 15.
21
Id.
22
Re
J.R.L.: Ex parte C.J.L.
[1986] HCA 39
;
(1986) 161 CLR
342
at 352, quoted with approval in
SARFU
II
above n 8 at para 46.
23
SARFU
II
above n 8 at para 46.
24
Ebner
v Official Trustee
[2000] HCA 63
;
(2001) 205 CLR 337
at para 19.
25
SARFU
II
above n 8 at para 48.
26
Locabail
(UK) Ltd v Bayfield Properties Ltd and another
[2000] 1 All ER
65
at para 21;
SACCAWU
above n 12 at para 17 and
SARFU II
above n 8 at para 48.
27
Ebner
above n 24 at para 20.
28
Id.
29
SACCAWU
above n 12 at para 17.
30
Id
quoting
Locabail
above n 26 at para 21.
31
S
v Shackell
2001 (4) SA 1
(SCA);
S
v Roberts
1999 (4) SA 915
(SCA);
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers’ Union
and Another
[1992] ZASCA 85
;
1992 (3) SA 673
(A) and
Council of Review, South African Defence
Force, and Others v Mönnig and Others
1992
(3) SA 482 (A).
32
[1989] HCA 44
;
(1989)
167 CLR 568.
33
Above
n 31.
34
Above
n 26.
35
Above
n 24.
36
Ebner
above n 24 at para 37.
37
Id.
38
Id.
39
This
rule has its genesis in the House of Lords decision in
Dimes
v. Grand Junction Canal (Proprietors of)
(1852)
[1852] EngR 789
;
3 HL Cas
759.
Over the years the rule has been expressed differently. In
R
v Bow Street Metropolitan Stipendiary Magistrate and others, ex
parte Pinochet Ugarte (No 2)
[1999] UKHL 1
;
[1999] 1 All ER 577
(
Pinochet
II
), Lord Browne-Wilkinson, at 586, expressed it as follows:
“
First it may be applied
literally: if a judge is in fact a party to the litigation or has a
financial or proprietary interest
in its outcome then he is indeed
sitting as a judge in his own cause. In that case, the mere fact
that he is a party to the action
or has a financial or proprietary
interest in its outcome is sufficient to cause his automatic
disqualification. The second application
of the principle is where a
judge is not a party to the suit and does not have a financial
interest in its outcome, but in some
other way his conduct or
behaviour may give rise to a suspicion that he is not impartial, for
example because of his friendship
with a party. This second type of
case is not strictly speaking an application of the principle that a
man must not be judge
in his own cause, since the judge will not
normally be himself benefiting, but providing a benefit for another
by failing to
be impartial.”
40
Locabail
above n 26 at para 4.
41
Id
at para 7.
42
Id
at para 8.
43
Id
quoting
Clenae Pty. Ltd. and Others v.
Australia & New Zealand Banking Group Ltd.
[1999] VSCA 35
;
[1999]
2 V.R. 573
at para 59.
44
Id
at para 9, quoting
Clenae
at
para 3. It must be noted that when this case came on appeal to the
High Court of Australia, as
Ebner
above n 24, it noted, at para 54 that:
“
Having regard to the current state of the common
law in Australia on the subject of disqualification for apprehended
bias, we
do not accept the submission that there is a separate and
free-standing rule of automatic disqualification which applies where

a judge has a direct pecuniary interest, however small, in the
outcome of the case over which the judge is presiding.”
45
Ebner
above n 24 at para 37.
46
Id
at para 8.
47
SARFU
II
above n 8 at para 48.
48
BTR
above n 31.
49
Id
at 694H-695A.
In
Serjeant and Others v
Dale
(1877) 2 QBD 558
, cited by the
court in
BTR
,
the English court held at 567:
“
The law does not measure the amount of interest
which a judge possesses. If he has any legal interest in the
decision of the question
one way he is disqualified, no matter how
small the interest may be. The law, in laying down this strict rule,
has regard not
so much perhaps to the motives which might be
supposed to bias the judge as to the susceptibilities of the
litigant parties.
One important object, at all events, is to clear
away everything which might engender suspicion and distrust of the
tribunal,
and so to promote the feeling of confidence in the
administration of justice which is so essential to social order and
security.”
50
BTR
above n 31 at 694I-J.
51
Id.
52
Id
at 695A.
53
Ebner
above n 24 at para 69.
54
Id
at para 70. (Footnote omitted.)
55
Locabail
above n 26 at para 26.
56
Id.
57
Vakauta
above n 32 at 572.
58
Locabail
above n 26 at para 26 and
Vakauta
above n 32 at 573 and 577.
59
Pinochet
II
above n 39 at 590. As Innes CJ put it in
Laws v.
Rutherfurd
1924 AD 261
at 263, a party seeking to establish
waiver “must show that the respondent, with full knowledge of
her right, decided to
abandon it, whether expressly or by conduct
plainly inconsistent with an intention to enforce it.” See
also
Meintjes NO v Coetzer and Others
2010 (5) SA 186
(SCA)
at para 11.
60
SARFU
II
above n 8 at para 76.
61
Id
at para 70.
62
Id
at para 89.
63
Basson
II
above n 8 at para 42.
64
Id.
65
Id
at para 36.
66
1952
(2) SA 475
(A).
67
Id
at 481F-H.
68
Basson
II
above n 8 at para 70.
69
Id.
70
Id
at para 101.
71
Id.
72
1948
(2) SA 677
(A).
73
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU III
).
74
Id
at para 79.
75
R
v Dhlumayo
above n 72 at 696.
76
Id
at 695.
77
See
R v Dhlumayo
above n 72 at 706 and
SARFU III
above n
73 at paras 78-80.
78
R
v
Dhlumayo
above
n 72 at 706.
79
T
he
Supreme Court of Appeal, above n 1, said the following at para 12:
“
The court below described Sheikh Fawaz as an
impressive witness but the record of his evidence does not bear that
out. . . . I
have found the evidence of the Sheik to be almost as
unimpressive as that of Mr Fanjek. Most of his answers to questions
about
the transactions . . . were incoherent and attempts to probe
them in more detail were brushed aside on the basis that those were

matters that he left to his advisers.”
80
The
applicant’s complaint is that the court found that the Sheikh
and Mr Fanjek were unimpressive witnesses. This finding
has ample
support in the record. As for the Sheikh, he testified that when he
entered into the joint venture agreement he reviewed
all the
documents, he knew that the company had registered designs and
patents and he knew what intellectual property means,
namely,
trademarks and patents. When he was confronted with the concession
by the applicant that in 1999 there was not a single
trademark or
patent or any form of intellectual property registered in the name
of Rotrax Cars International, his response was
“because I love
cars, even if not I will help him.” When asked what then did
he review, his response was that his
business managers and advisors
checked all the documents because they knew what he wanted. Later on
he said it was Ghassan Dinawe.
As
for Mr Fanjek, he admitted that he told a white lie. Both the High
Court, above n 2 at paras 31-2, and the Supreme Court of
Appeal,
above n 1 at para 9, found him to be a liar. And both courts were
prepared to accept his evidence, when corroborated.
The question is
one of the weight to be attached to his evidence in the light of his
admitted lies. The finding that Mr Fanjek
was an unimpressive
witness is fully supported by the record.
81
Absa
above n 1 at
para 71.
82
Id
.
83
Id
at para 72.
84
Id
at paras 71-2.
85
Id
at para 73.
86
Id.
87
Id.