Bernert v Absa Bank Ltd
Jurisdiction | South Africa |
Judge | Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J |
Judgment Date | 09 December 2010 |
Citation | 2011 (3) SA 92 (CC) |
Docket Number | CCT 37/10 |
Hearing Date | 19 August 2010 |
Counsel | LJ Lowies for the applicant. PG Robinson SC (with SW Burger) for the respondent. |
Court | Constitutional Court |
Bernert v Absa Bank Ltd
2011 (3) SA 92 (CC)
2011 (3) SA p92
Citation |
2011 (3) SA 92 (CC) |
Case No |
CCT 37/10 |
Court |
Constitutional Court |
Judge |
Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J |
Heard |
August 19, 2010 |
Judgment |
December 9, 2010 |
Counsel |
LJ Lowies for the applicant. |
Flynote : Sleutelwoorde B
Judge — Duties and functions — Duty not to show bias — Applicant contending that Supreme Court of Appeal judges biased — Judge had shares in respondent bank — Two judges had prior relationship with bank — Manner in which presiding judge conducted proceedings — Alleged that factual C findings of SCA unreasonable — Constitutional Court finding that none of grounds of alleged bias sustainable — Appeal dismissed. [*]
Headnote : Kopnota
In an appeal against a decision of the Supreme Court of Appeal the applicant contended that the SCA had been biased against him on the grounds that:
D One of the judges held shares in the respondent, Absa Bank;
two of the judges had a prior relationship with the bank;
the manner in which the presiding judge conducted the proceedings created a reasonable apprehension that he was biased; and
the factual findings made by the SCA were so grossly unreasonable that they were inexplicable, except on the basis of bias.
E As to the shares in the bank held by the judge
Held, that, on comparing the amount of the claim to the share capital of the bank, the outcome of the case could not realistically have impacted in any significant way on the bank's share price. There was therefore no realistic possibility that the outcome of the proceedings could affect the value of F shares held by the judge; nor was there a realistic possibility that his shareholding in the bank could influence his decision either way. (Paragraph [67] at 112C – D.)
Held, further, that even if it could be said that there was some basis for a reasonable apprehension of bias, the judge had disclosed his shareholding in the bank. Shortly before the hearing the applicant was told of the G shareholding, and yet did not object. Nor had the applicant pointed to any conduct on the part of the judge before, during or after the hearing that could possibly have inspired a reasonable apprehension of bias. And the applicant had not pointed to any aspect of the judgment that had any bearing on the shareholding. (Paragraph [68] at 112D – F.)
H Held, that in our law the controlling principle was the interests of justice. It was not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal was sought, to wait until an adverse judgment before raising the issue of recusal. Litigation had to be brought to finality as speedily as possible. It was undesirable to cause parties
2011 (3) SA p93
to litigation to live with the uncertainty that, after the outcome of the case A is known, there was a possibility that litigation might 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. (Paragraph [75] at 114C – D.)
Held, accordingly, that it was not in the interests of justice at that late stage to B permit the applicant to raise a complaint of bias based on shareholding by the judge. (Paragraph [76] at 114E.)
Alleged prior association with the bank
Held, that there was no suggestion in the case that the subject-matter of the litigation arose from the alleged association which the judges had with the bank prior to their appointment to the bench. Nor was there any suggestion C that, in the course of their association with the bank, the two judges of appeal acquired personal information that was relevant to the appeal before them. Nor was there any obligation on the two judges of appeal to disclose their prior association with the bank. Non-disclosure of irrelevant facts could not be a basis for a reasonable apprehension of bias. (Paragraph [79] at 114I – 115B.)
Reasonable apprehension of bias: conduct of proceedings D
Held, that an appellate court normally evaluated a written record. The issues of both fact and law had usually long been crystallised, and the appellate court had the benefit of advanced written argument in which the contentions of the parties on those issues are fully set out. In those circumstances it was unavoidable that appellate judges would form a view, albeit a provisional E one, on the issues in the case. Regrettably, this provisional view was sometimes expressed in fairly strong terms, and was given an outward manifestation. This provisional view would become apparent in the issues raised by the court in the course of the argument. This might lead the presiding judge in the appeal to call upon a party to argue out of order. This, however, did not establish a reasonable apprehension of bias. The fact that the applicant's attorney was called upon to argue first was no more than an F outward manifestation of a provisional view held by the court. (Paragraphs [90] – [92] at 117A – F.)
Held, as to the alleged hostility of the presiding judge, that while some of the alleged remarks by the judge may have been unfortunate, they amounted to no more than irritation or impatience. The remarks and interventions of the G presiding judge, cumulatively and individually, did not establish a reasonable apprehension of bias. A well-informed litigant would know that appellate courts, having the benefit of the record, crystallised issues and written argument, would engage counsel in a way that was often robust and might at times be overly so. Legal representatives should not stand by as spectators over what may convey an impression of bias. They should raise H any objection as soon as reasonably practicable. This would allow the judicial officer to explain his behaviour and, if necessary, correct that behaviour. Judicial officers, it must be remembered, are only human. This would make our courts vigilant of their behaviour, and ensure that they prevented behaviour that might create an apprehension of bias. (Paragraphs [96] – [99] at 118E – 119C.)
Incorrect factual findings I
Held, that on a review of the record it was apparent that: (a) the SCA took a different view of the issues that had to be decided; (b) the factual findings made by the SCA were borne out by the record; and (c) those findings were plainly reasonable on the record. (Paragraph [100] at 119D – E.) Appeal dismissed with costs. J
2011 (3) SA p94
Cases Considered
Annotations: A
Reported cases
Southern Africa
Absa Bank Ltd v Bernert 2011 (3) SA 74 (SCA): confirmed on appeal
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465): referred to B
BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A): discussed
Council of Review, South African Defence Force, and Others v Mönnig and Others 1992 (3) SA 482 (A): referred to
Glenister v President of the Republic of South Africa and Others C 2009 (1) SA 287 (CC) (2009 (2) BCLR 136): referred to
Laws v Rutherfurd 1924 AD 261: referred to
Meintjes NO v Coetzer and Others 2010 (5) SA 186 (SCA): referred to
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) (1999 (7) BCLR 725): applied
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): dictum in para [79] applied D
R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to
R v Silber 1952 (2) SA 475 (A): dictum at 481F/G – H applied
S v Basson 2005 (1) SA 171 (CC) (2004 (1) SACR 285; 2004 (6) BCLR 620): dictum in paras [21] – [22] applied E
S v Basson 2007 (3) SA 582 (CC) (2007 (1) SACR 566; 2005 (12) BCLR 1192): applied
S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243): referred to
S v Shackell 2001 (4) SA 1 (SCA) (2001 (2) SACR 185; [2001] 4 All SA 279): referred to
South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) (2000 (8) BCLR 886): applied F
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442): referred to.
Australia G
Clenae Pty Ltd and Others v Australia & New Zealand Banking Group Ltd [1999] VSCA 35 ([1999] 2 VR 573): referred to
Ebner v Official Trustee (2001) 205 CLR 337 (HCA) ([2000] HCA 63; 176 ALR 644; 75 ALJR 277): dictum in paras [19] – [20] and [37] applied
Re JRL, Re: Ex parte CJL (1986) 161 CLR 342 (HCA): dictum at 352 applied H
Vakauta v Kelly (1989) 167 CLR 568 (HCA) ([1989] HCA 44): referred to.
England
Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759: referred to I
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (CA) ([1999] EWCA Civ 3004): applied
R v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL): referred to
Serjeant and Others v Dale (1877) 2 QBD 558: referred to. J
2011 (3) SA p95
Unreported cases A
Bernert v Absa Bank Limited (TPD case No 14302/03, 15 October 2008): referred to.
Case Information
Appeal against a decision of the Supreme Court of Appeal in which the applicant contended that the SCA had been biased against him. B
LJ Lowies for the applicant.
PG Robinson SC (with SW Burger) for the respondent.
Cur adv vult.
Postea (December 9). C
Judgment
Ngcobo CJ (Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J...
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