Bernert v Absa Bank Ltd

JurisdictionSouth Africa
JudgeNgcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J
Judgment Date09 December 2010
Citation2011 (3) SA 92 (CC)
Docket NumberCCT 37/10
Hearing Date19 August 2010
CounselLJ Lowies for the applicant. PG Robinson SC (with SW Burger) for the respondent.
CourtConstitutional 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.
PG Robinson SC (with SW Burger) for the respondent.

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:

(1)

D One of the judges held shares in the respondent, Absa Bank;

(2)

two of the judges had a prior relationship with the bank;

(3)

the manner in which the presiding judge conducted the proceedings created a reasonable apprehension that he was biased; and

(4)

the factual findings made by the SCA were so grossly unreasonable that they were inexplicable, except on the basis of bias.

(1)

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.)

(2)

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.)

(3)

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.)

(4)

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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45 practice notes
  • S v Bruinders
    • South Africa
    • Invalid date
    ... ... Cases cited ... Reported cases ... Southern Africa ... Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC): considered ... BTR Industries South Africa (Pty) Ltd ... ...
  • Makate v Vodacom Ltd
    • South Africa
    • Invalid date
    ...SA 529; [2007] ZASCA 162): referred to Benjamin v Gurewitz 1973 (1) SA 418 (A): referred to J 2016 (4) SA p124 Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): dictum in para [106] applied A Beyleveld NO v Southern Life Association Ltd and Another 1987 (4) SA......
  • Delict
    • South Africa
    • Juta Yearbook of South African Law No. , March 2022
    • 28 March 2022
    ...The appeal court rejected this allegation as having no merit and referred (at para 32) to the judgment in Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) paras 102–103, where the Constitutional Court held that a ‘mistake on the facts will only give rise to a reasonable apprehension of bias if i......
  • S v Steward
    • South Africa
    • Invalid date
    ...JP and Phatshoane J, butdisagreed on the reliability of the evidence of the complainant and hermother.Cases citedBernert v Absa Bank 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010]ZACC 28): referred toBothma v Els and Others 2010 (1) SACR 184 (CC) (2010 (2) SA 622;2010 (1) BCLR 1; [2009] ZAC......
  • Request a trial to view additional results
41 cases
  • S v Bruinders
    • South Africa
    • Invalid date
    ... ... Cases cited ... Reported cases ... Southern Africa ... Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC): considered ... BTR Industries South Africa (Pty) Ltd ... ...
  • Makate v Vodacom Ltd
    • South Africa
    • Invalid date
    ...SA 529; [2007] ZASCA 162): referred to Benjamin v Gurewitz 1973 (1) SA 418 (A): referred to J 2016 (4) SA p124 Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): dictum in para [106] applied A Beyleveld NO v Southern Life Association Ltd and Another 1987 (4) SA......
  • S v Steward
    • South Africa
    • Invalid date
    ...JP and Phatshoane J, butdisagreed on the reliability of the evidence of the complainant and hermother.Cases citedBernert v Absa Bank 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010]ZACC 28): referred toBothma v Els and Others 2010 (1) SACR 184 (CC) (2010 (2) SA 622;2010 (1) BCLR 1; [2009] ZAC......
  • S v Masoanganye and Others
    • South Africa
    • Invalid date
    ...[86] at 603e–f.) The appeal against thesentences was dismissed. (Paragraph [111] at 611d.)AnnotationsCase lawBernert v Absa Bank Ltd 2011 (3) SA 92 (CC): referred toKPMG Chartered Accountants (SA) v Securef‌in Ltd and Another 2009 (4) SA399 (SCA) ([2009] 2 All SA 523; [2009] ZASCA 7): refer......
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1 firm's commentaries
  • Tax In Brief | Issue 83
    • South Africa
    • Mondaq Southafrica
    • 14 June 2022
    ...Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC); and Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC). The Tax Court made the following the application for default judgment is dismissed with costs, including the costs of two counsel. the ap......
3 books & journal articles
  • Delict
    • South Africa
    • Juta Yearbook of South African Law No. , March 2022
    • 28 March 2022
    ...The appeal court rejected this allegation as having no merit and referred (at para 32) to the judgment in Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) paras 102–103, where the Constitutional Court held that a ‘mistake on the facts will only give rise to a reasonable apprehension of bias if i......
  • 2014 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...481Balkwell v S [2007] 3 All SA 465 (SCA) ............................................... 439Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) .................................. 48-9Bertie van Zyl v Minister for Safety and Security 2010 (2) SA 181 (CC) ..................................................
  • Waiver of the right to judicial impartiality : comparative analysis of South African and Commonwealth jurisprudence
    • South Africa
    • Sabinet Southern African Public Law No. 28-1, January 2013
    • 1 January 2013
    ...acomplaint of bias in circumstances where he had the relevant information but tookId paras 23 and 24.38Id paras 27, 28, 29 and 30.392011 3 SA 92 (CC) 8(20 13) 28 SAPLno action. ABSA Bank had argued that the applicant was barred from raising biasbased on the shareholding of Cachalia JA in th......

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