BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another

• Jurisdiction: South Africa

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

1992 (3) SA p673

Citation	1992 (3) SA 673 (A)
Court	Appellate Division
Judge	Hoexter JA, Milne JA, Kumleben JA, F H Grosskopf JA and Goldstone JA
Heard	March 9, 1992; March 10, 1992
Judgment	May 25, 1992

Flynote : Sleutelwoorde B

Recusal — On grounds of appearance of bias — Test for — Applicant for C recusal required to show existence of reasonable suspicion of bias on part of decision maker — Real likelihood of bias not prerequisite for disqualifying bias — Provided suspicion of partiality one which might reasonably be entertained by lay litigant, reviewing Court not required to measure precise extent of apparent risk — Application for recusal requiring objective scrutiny of evidence — Test not to be applied in D vacuo — Hypothetical reasonable man to be envisaged in circumstances of litigant who raises objection to tribunal hearing case — Notion of reasonable man cannot, however, vary according to individual idiosyncrasies or superstitions or intelligence of particular litigants. E

Headnote : Kopnota

The test to be adopted in recusal applications involving the appearance of bias is whether there exists a reasonable suspicion of bias on the part of the decision maker. An apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualifying bias. The very objects which the 'reasonable suspicion' test are calculated to achieve would be frustrated by grafting onto it the further requirement that the probability of bias must be foreseen. Provided that the suspicion F of partiality is one which might reasonably be entertained by a lay litigant, a reviewing Court cannot 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.

The exceptio recusationis requires an objective scrutiny of the evidence. The test to be applied therefore involves the legal fiction of the reasonable man. That the test is an objective one does not mean, however, G that the exceptio recusationis is to be

1992 (3) SA p674

A applied in vacuo: the hypothetical reasonable man is to be envisaged in the circumstances of the litigant who raises the objection to the tribunal hearing his case. It is important, nonetheless, to remember that the notion of the reasonable man cannot vary according to individual idiosyncrasies or the superstitions or the intelligence of particular litigants.

From August 1983 until the beginning of May 1985 the majority of the first appellant's employees were members of the first respondent trade union. B Following upon protracted and acrimonious negotiations between the first appellant and the trade union over the acceptance of a recognition agreement, during which time there were periods of sustained industrial action by the first appellant's employees, culminating in the dismissal on 3 May 1985 of 890 striking workers, a conciliation board was established. On 7 May 1986 the Minister referred certain disputes to the industrial C court. The court, presided over by the second appellant, sat from 4 November 1986 until 9 September 1987, with an adjournment from 1 April until 29 June 1987. During the adjournment, ALA, a firm of industrial relations consultants, presented a one-day seminar on 26 May 1987, entitled 'The New Labour Law - Management Perspectives'. The second appellant, each of the three advocates and the attorney representing the first appellant at the industrial court hearing presented papers at the seminar. ALA had been engaged by the first appellant since December 1984 D to advise it in its dealings with the trade union and its members. The evidence indicated that the first appellant had sought ALA's advice 'at every juncture' and had relied 'very heavily' on its advice and, generally, had followed its advice. It was clear from the evidence that, in advising its client, ALA had espoused the cause of the first appellant very zealously: on the one hand it had viewed the first appellant's labour problems with sympathetic understanding while, on the other hand, its attitude towards the trade union's aspirations and the strategies employed E by it had been one of undisguised hostility.

On 19 May 1987 the attorney representing the trade union sent a telex to the second appellant, expressing the union's objection to his prospective participation in a seminar 'presented' by the firm engaged by the first appellant to give industrial relations advice on the dispute which was the subject of the litigation being heard before him. The second appellant F refused to withdraw from the seminar: his view was that the fact that the seminar had been arranged by the firm engaged by the first appellant in respect of the dispute and that the first appellant's entire legal team would be speakers at the seminar was entirely incidental and 'insufficient to justify the perception that (his) objectivity and impartiality (might) be affected thereby'. Several telexes were exchanged between the two, the trade union's attorney reiterating his client's opposition to the second appellant's participation in the seminar, while the second appellant G remained unconvinced by the trade union's objections. Soon after the resumption of the industrial court proceedings the trade union applied for the second appellant's recusal on the grounds that his attendance and participation in the seminar had given rise to a 'reasonable apprehension of bias' on the part of lay persons. (The proceedings were attended daily by some 1 000 onlookers, chiefly drawn from the dismissed workers and, by agreement, the gist of what each English-speaking witness had said was H translated into Zulu for their benefit.) The application for recusal was dismissed. In an application to a Provincial Division for a review of the proceedings in the industrial court, the Court preferred to make no definite finding on the merits, but in view of its conclusion that the second appellant's failure to recuse himself had constituted a fatal irregularity, the industrial court's determination was set aside and the matter was remitted for a hearing de novo by an industrial court consisting of three new members. In an appeal,

I Held (per Hoexter JA; Milne JA, Kumleben JA, F H Grosskopf JA and Goldstone JA concurring), that the suspicion of bias assailing the minds of the trade union members had simply been that, in all the circumstances of the case, by attending and addressing the ALA seminar, the second appellant had so associated himself with one of the parties to the trial being heard by him as reasonably to create an impression of a leaning or inclination on his part towards one side of the dispute; an impression of J a predisposition to favour one of two opposing parties.

1992 (3) SA p675

A Held, further, that, on the facts, it would be difficult to imagine a case in which a suspicion of bias harboured by an applicant for recusal had ever been more clearly manifested.

Held, further, as to whether the respondents had discharged the onus of showing that the suspicion of bias had been reasonable, that crucial to the determination of the issue was the nature of the dispute at the trial: it had not been a dispute of the ordinary sort; it had been a dispute in a highly sensitive field involving a relationship between management and B workers characterised by a high degree of mutual suspicion - at times characterised by acrimony and hostility - concerning what were perceived by the parties as being fundamental conflicts of interest in an area in which those involved were highly partisan, tending to see matters only from their own point of view.

Held, further, that, although ALA was not a party to the litigation, it had played a crucial role in the events leading up to the industrial court C trial, and in shaping the disputes which ultimately had occupied the attention of the industrial court: in the eyes of the trade union members and officials, ALA had been in the camp of the enemy.

Held, further, that the facts of the matter were strong enough to meet the requirements of the 'reasonable suspicion of bias' test: the average lay litigant in the position of the trade union and its members, given the situation which existed and sensitive to it, would have felt that, by his D participation in the seminar, the second appellant had displayed too great an association with ALA. The appeal was accordingly dismissed.

The decision in the Natal Provincial Division in Metal and Allied Workers' Union and Another v BTR Industries South Africa (Pty) Ltd and Others confirmed.

Case Information

Appeal from a decision in the Natal Provincial Division (Didcott J). The E facts appear from the judgment of Hoexter JA.

M J D Wallis SC (with him G R Thatcher) for the first appellant referred to the following authorities: City Council of Cape Town v Union Government 1931 CPD 366 at 380-1; Hulett's SA Refineries Ltd v South African Railways and Harbours 1945 NPD 413 at 421; Muehlendorf and Another v Rand F Steam Laundries Ltd 1945 TPD 317 at 323, 330; Carstens and Others v Van Zwam Brothers (Pty) Ltd 1947 (4) SA 665 (W) at 671; South African Association of Municipal Employees v Minister of Labour 1948 (1) SA 528 (T) at 534; Williams v Benoni Town Council 1949 (1) SA 501 (W) at 507; R v Milne & Erleigh (6) 1951 (1) SA 1 (A); Durban City Council v Minister of Labour and Another 1953 (3) SA 708 (N) at 711H-712D; R v T 1953 (2) SA G 479 (A) at 483; George Divisional Council v Minister of Labour and Another 1954 (3) SA 300 (C) at 305D-306B; Danisa v British and Overseas Insurance Co Ltd 1960 (1) SA 800 (D) at 801B-D; Johannesburg City Council v Administrator, Transvaal, and Another 1971 (1) SA 87 (A) at 99A-C...