Absa Bank Ltd v Hoberman and Others NNO

• Jurisdiction: South Africa
• Citation: 1998 (2) SA 781 (C)

Absa Bank Ltd v Hoberman and Others NNO
1998 (2) SA 781 (C)

1998 (2) SA p781

Citation	1998 (2) SA 781 (C)
Case No	6087/96
Court	Cape Provincial Division
Judge	van Zyl J, Conradie J
Heard	November 8, 1996
Judgment	December 19, 1996
Counsel	A P Rubens (with him L N Harris) for the applicant; P B Hodes (with him R O Petersen) as amici curiae for the first respondent; S Olivier for the fifth and twelth respondents; G W Woodland for remaining respondents

Flynote : Sleutelwoorde

Company — Winding-up — Enquiry in terms of s 417 of Companies Act 61 of 1973 — Commissioner appointed in terms B of s 418 — Duties of — Obliged to act in accordance with precepts of natural justice — Must apply procedural fairness and even-handed impartiality to all who might be prejudiced or otherwise affected by his actions — Commissioner C ordinarily disqualified from continuing with functions if enquiry conducted in partial or biased manner — Commissioner also disqualified where conduct provoking reasonable suspicion of bias.

Company — Winding-up — Enquiry in terms of s 417 of Companies Act 61 of 1973 — Commissioner appointed in terms D of s 417 — Removal of on grounds of bias — 'Non-actual' disqualifying bias — Test for — Reasonable suspicion of bias now accepted test — Assessment to be made with reference to reasonable grounds — 'Perception of bias, objectively assessed on reasonable grounds' possibly preferable formulation.

Company — Winding-up — Enquiry in terms of s 417 of Companies Act 61 of 1973 — Commissioner appointed in terms E of s 417 — Removal of on grounds of bias — Nature and ambit of bias — Tribunal other than court of law, such as s 417 enquiry, having all attributes of court of law — Expected by public to behave exactly as court of law does — Commissioner's role thus possibly more critically assessed than that of trial Judge.

Company — Winding-up — Enquiry in terms of s 417 of Companies Act 61 of 1973 — Commissioner appointed in terms F of s 418 — Removal of on grounds of bias — Court should have discretion not to remove commissioner, despite justified perception of bias, if such step not to general benefit of all interested parties.

Headnote : Kopnota

Although it has been said that a commissioner appointed in terms of s 417, read with s 418, of the Companies G Act 61 of 1973 for the purposes of holding an enquiry in connection with the winding-up of a company acts in a quasi-judicial capacity, his functions are inquisitorial, investigative and adjudicative. (At 795I/J--796A.) It would appear, however, that the categorisation of his functions as judicial, quasi-judicial or administrative is not H important, provided that he executes his functions and duties properly and fairly. (At 796C.) By the very nature of his functions a commissioner is obliged to act in accordance with the precepts of natural justice, which enjoin him to apply procedural fairness and even-handed impartiality to all persons who might be prejudiced or otherwise adversely affected by his actions. (At 796E.) It follows, therefore, that if a commissioner were to I conduct his enquiry in a partial or biased manner he would be acting in conflict with the aforesaid precepts and would ordinarily be disqualified from continuing to exercise his functions as a commissioner. That would be the case not only where the commissioner demonstrates actual bias or lack of impartiality, but also where his conduct provokes a reasonable suspicion of bias. In such cases he might justifiably be requested to recuse himself and, in the event of his failure or refusal to do so, a Court might be J

1998 (2) SA p782

approached to remove him by terminating his appointment as a commissioner. (At 796G--H/I.) A

Although it is now accepted that the test in South African law for 'non-actual' disqualifying bias is the existence of a reasonable suspicion of bias, it could be argued that 'suspicion', which might be indicative of subjective B mistrust, might not be the best word to describe an objective assessment of bias. Objectively assessed appearance, apprehension or perception of bias could be a preferable formulation. The assessment of bias has to be made with reference to reasonable grounds. In that way it would not be necessary to speak of 'reasonable suspicion', but rather of a 'perception of bias, objectively assessed on reasonable grounds'. (At 798I/J--799B/C.)

Where the nature and ambit of the bias to be assessed are concerned, although there are differences between the C roles of commissioner and trial Judge respectively, this does not give the commissioner more latitude in instances of alleged bias than it does a trial Judge. On the contrary, the commissioner's role might well be more critically assessed than that of a trial Judge because tribunals other than courts of law, such as a s 417 enquiry, which have all the attributes of a court of law, are expected by the public to behave exactly as a court of law D does. (At 800E/F--H.)

In deciding whether, despite the existence of bias, an application for a commissioner's recusal may nevertheless refused, the Court should have regard to the totality of the facts and circumstances underlying the competing E interests of all the parties involved. It should have the discretion not to remove a commissioner if such step should prove not to be to the general benefit of all interested parties, even if it is satisfied that there is a perception of bias adhering to the commissioner. (At 801D--E.)

Cases Considered

Annotations

Reported cases

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC): applied F

BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A): considered

Council of Review, South African Defence Force, and Others v Mönnig and Others 1992 (3) SA 482 (A): dictum at 490D considered

Foot NO v Alloyex (Pty) Ltd and Others 1982 (3) SA 378 (D): referred to G

Franklin and Others v Minister of Town and Country Planning [1947] 2 All ER 289 (HL): dictum at 296B--C approved

Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A): dictum at 570E - F considered

The King (De Vesci) v The Justices of Queen's County [1908] 2 IR 285: considered H

Lok and Others v Venter NO and Others 1982 (1) SA 53 (W): referred to

Ma-Afrika Groepbelange (Pty) Ltd and Another v Millman and Powell NNO and Another 1997 (1) SA 547 (C) (1996 CLR 751): dictum at 566A--E (SA) & 772 (CLR) compared and approved

Mönnig and Others v Council of Review and Others 1989 (4) SA 866 (C): applied I

Re Pergamon Press Ltd [1970] 3 All ER 535 (CA): dictum at 541j--542a applied

R v Gough [1993] 2 All ER 724 (HL): discussed and followed in part, criticised in part

R v Spencer and Others; R v Smails and Others [1986] 2 All ER 928 (HL) ([1987] AC 128): referred to J

1998 (2) SA p783

R v Sussex Justices: ex parte McCarthy [1924] 1 KB 256 ([1923] All ER Rep 233): approved A

Receiver of Revenue, Port Elizabeth v Jeeva and Others; Klerck and Others NNO v Jeeva and Others 1996 (2) SA 573 (A): referred to

S v Malindi and Others 1990 (1) SA 962 (A): dictum at 969H--I applied

S v Radebe 1973 (1) SA 796 (A): referred to B

Schulte v Van der Berg and Others NNO 1991 (3) SA 717 (C): applied

South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T): considered

Van der Berg v Schulte 1990 (1) SA 500 (C): referred to

Venter v Williams and Another 1982 (2) SA 310 (N): referred to.

Statutes Considered

Statutes

The Companies Act 61 of 1973, ss 417, 418: see Juta's Statutes of South Africa 1996 vol 2 at C 1-202--1-203.

Case Information

Application to set aside the refusal by a commissioner appointed in terms of s 418 of the Companies Act 61 of 1973 to recuse himself. The facts appear from the judgment of Van Zyl J. D

A P Rubens SC (with him L N Harris) for the applicant.

P B Hodes SC (with him R O Petersen) as amici curiae for the first respondent.

S Olivier for the fifth and twelfth respondents. E

G W Woodland for the remaining respondents.

Cur adv vult.

Postea (19 December 1996).

Judgment

Van Zyl J:

The application F

This is a review application arising from a refusal of the first respondent ('Hoberman') to recuse himself as the commissioner appointed by this Court in terms of s 417, read with s 418, of the Companies Act 61 of 1973 to G undertake an enquiry into the affairs of Tollgate Holdings Ltd (in liquidation) and its associated or subsidiary companies, which are collectively referred to as 'Tollgate'.

The relief sought by the applicant ('ABSA') is that: (a) Hoberman's decision not to recuse himself should be set aside; (b) he should be removed from office; (c) a suitable person should be appointed in his place. H

The grounds underlying the application for the recusal of Hoberman are that he is biased against ABSA and is not a fit and proper person to act as commissioner. The alleged bias is based on conduct of Hoberman which, I ABSA submits, is indicative of actual bias or of a reasonable suspicion of bias. In this regard ABSA relies particularly on three instances of so-called misconduct, namely: (a) Hoberman's interview with the Millennium Magazine; (b) his unprovoked attack on Dr Cronjé, ABSA's chief executive, during his testimony before the commission; and (c) his private meeting with one Diedericks at a time when Diedericks was still testifying before him. J

1998 (2) SA p784

Van Zyl J

A number of additional factors are also mentioned as indicating that Hoberman is biased against ABSA and that A he is not a fit and proper person to act as commissioner. For present purposes it is not necessary to deal with them.

The liquidators of various Tollgate companies have been joined as the second to fourteenth...