S v Bruinders

• Jurisdiction: South Africa
• Judge: Zondi J and Sher AJ
• Judgment Date: 15 June 2011
• Citation: 2012 (1) SACR 25 (WCC)
• Docket Number: A 400/2009
• Hearing Date: 17 September 2010
• Counsel: JJ Thaysen for the appellant, instructed by the Legal Aid Board. E Erasmus for the State.
• Court: Western Cape High Court, Cape Town

Sher AJ:

G A. Introduction

[1] That famous wit, Oscar Wilde, is reputed to have once said [1] that it is only shallow people who do not judge by appearances. Appearances are at issue in this matter. Shallow or not, we are required to judge them. They relate to an alleged perception of bias.

H [2] The appellant was arraigned before the magistrate of Mossel Bay on a number of charges. These included two charges of robbery (one aggravated), a charge of malicious damage to property and a charge of assault with intent to do grievous bodily harm.

[3] The appellant pleaded not guilty to all these charges. After hearing I the evidence of a number of witnesses, including the complainants on each of the charges, and the appellant himself, the magistrate convicted him on the two robbery charges (counts 1 and 4), and the charge of assault with intent to do grievous bodily harm (count 3) and acquitted

Sher AJ

him on the charge of malicious damage to property (count 2). She A sentenced the appellant to three years' imprisonment on the one charge of robbery (count 1) and two years on the other (count 4), and he was cautioned and discharged on the remaining count. As the magistrate did not direct that the sentences on the two robbery charges were to be served concurrently, the appellant was effectively sentenced to imprisonment B for five years.

[4] The appellant lodged an application for leave to appeal against his convictions. He alleged that he had appeared before the magistrate on a number of occasions. Included amongst these was an occasion when the C magistrate had heard an application for bail, at which time, he said, his criminal record had been disclosed. The appellant said that the magistrate was thus aware of his previous convictions at the time when she tried him and this had 'put him in a bad light'.

[5] The application for leave to appeal was dismissed. The appellant then petitioned this court for leave to appeal and was successful. D

B. Bias

[6] Section 165(2) of the Constitution, 1996, requires our courts to apply the law impartially and without fear, favour or prejudice. A presiding E officer does not act impartially when his reasoning or his decision is affected by bias. But it has long been recognised that it is not only actual bias that will vitiate the proceedings or disqualify a judicial officer from presiding over a court of law; an appearance of bias will do just as well. [2] And this holds true, not only for our courts, but also for the courts in England, Australia and Canada, where the test for apparent bias is F well established. The development of this test was not without some controversy.

(i) The origins of the test for apparent bias

[7] Our law pertaining to apparent bias owes its origins to the decision in G R v Sussex Justices; Ex p McCarthy, [3] where the appellant in a criminal matter complained that the magistrates' clerk — whose duty it was to advise the presiding magistrates as to the law if and when called upon to do so — was a solicitor who was acting for the driver of the other vehicle, with which the appellant had collided, in civil proceedings. The court held that the question was not whether the clerk had made any H observation or offered any advice which he might not properly have made or offered, but —

'(t)he question is whether he was so related to the case in its civil aspect as to be unfit to act as a clerk to the justices in the criminal matter. The answer to that question depends not upon what was actually done but I upon what might appear to be done. Nothing is to be done which

Sher AJ

A creates even a suspicion that there has been an improper interference with the course of justice.' [4]

[8] The clerk's relationship with the other party created just such a suspicion, said the court, and it accordingly set aside the appellant's conviction. And, in doing so, it gave birth to that famous aphorism of B English law:

'(It)is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' [5]

C [9] The recognition in Sussex Justices, that actual bias no longer needed to be established and that apparent bias would do just as well to vitiate proceedings in English law, was a welcome step in the evolution of a sophisticated legal system. But, as is so often the case when a first step is taken, the devil lies in the detail. The test, as it was formulated, pertained to the existence of a suspicion, the level and nature of which D were not defined. Nor was it said who was to hold this suspicion. Was it to be the court, or the hypothetical observing member of the public? And, if it were the latter, would it matter whether this person was an irrational man or would he/she need to be a pillar of society?

E [10] Because the courts initially interpreted the decision to mean that no more than a mere suspicion of bias was required, the test that was applied gave rise to a rash of challenges. [6] The courts began to retreat from their wide and general formulation and sought to refine the test in various ways. Some courts required the suspicion to be a reasonable one; [7] others sought to elevate the threshold to a 'real likelihood' or even F a 'danger' of bias. [8]

[11] Sometimes the competing approaches were ascribable to the application of different standards between courts and inferior tribunals on the one hand, and juries — who were seen to be less reliable — on the other. So, in regard to jurors, the 'real danger' of bias test was applied, whereas, G in regard to judges and members of inferior tribunals (such as arbitrators), the 'real likelihood' test was held to be applicable. [9]

Sher AJ

[12] There was also a divergence in regard to where the suspicion had to A lie. Some courts were happy to leave it in the minds of hypothetical members of the public, [10] whereas others decided that the suspicion was to be in their minds only, [11] and some courts saw no difference between the two vantage points since the court, they said, personified the reasonable member of the public. [12] But, the more the courts sought to B refine or qualify the test in various ways, the more they were challenged. So, for example, it was asked whether, in order to show a real likelihood of bias, there should be a 'probability' of it occurring or having occurred, as opposed to a mere 'possibility'. These struggles ultimately led to curious results — where divergent tests or standards were said, somewhat C unconvincingly, to amount to the same thing.

[13] So, in R v Gough, [13] the House of Lords held, with a view to harmonising the competing approaches, that the test should be whether there was a real 'danger' of bias, which, it said, was the same as a real D 'likelihood' of bias. Although the ordinary man might be forgiven if he understood the test for the former as requiring something tangible and real and more than just a mere possibility of bias, the House of Lords said it meant just that: there was no need for there to be a real 'probability' of bias; a 'possibility' would do. [14]

[14] Over the years, the approach of the English courts became increasingly E out of sync with that followed by various commonwealth jurisdictions such as Scotland, [15] Australia [16] and South Africa, [17] as well as the European Court of Human Rights, [18] which all adopted one or other variant of the reasonable suspicion or apprehension of bias test.

[15] In October 2000 the Human Rights Act, 1998, came into force in F the United Kingdom. It effectively incorporated the provisions of the

Sher AJ

A European Convention on Human Rights [19] and provided that all legislation in the United Kingdom was to be read and given effect to in a way which was compatible with the Convention. [20] In addition, in giving effect to the Act, courts were required to have regard to the decisions of the European Court of Human Rights. [21]

B [16] With the adoption of the Human Rights Act it was inevitable that the test for apparent bias — as formulated by the courts in England and which had been subjected to criticism — would have to be modified in order to bring it into line with that favoured by the Strasbourg Court.

C [17] In 2001 the House of Lords consequently decided, in Porter and Another v Magill, [22] that the test was no longer whether the court considered there to have been a 'real danger' of bias, but whether the hypothetical 'fair-minded and informed observer', having considered the facts, would conclude that there was a 'real possibility' of bias.

D [18] As has been pointed out, the hypothetical observer postulated in Porter is 'in large measure the construct of the court'. [23] Like that other fictional English character, the reasonable man, his or her qualities and character traits have expanded or developed as the exigencies have required. He is not a universal man, although his commonwealth cousins are clearly related to him.

E [19] Because he is a fair-minded Englishman, he always adopts a 'balanced' approach, [24] and is a reasonable member of the public.

[20] He is the 'sort of person who takes the trouble to read the text of an F article as well as the headlines' and is able to put whatever he has read or seen 'into its overall social, political or geographic context'. [25] He will appreciate that the context forms an important part of the material which he must consider before passing judgment, and he will reserve doing so until he has seen and 'fully understood both sides of the argument'. [26] He is a sophisticated man who is expected to be 'aware' of the country's legal G traditions and culture; [27] and he has adopted some of his Australian

Sher AJ

counterpart's good qualities: he is neither 'unduly complacent or naive, A nor...