Comment: The duty of recusal

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 47-62
• Citation: (2014) 27 SACJ 47
• Author: N Whitear-Nel The duty of recusal
• Date: 16 August 2019

The duty of recusal

N WHITEAR NEL

University of KwaZulu-Natal, Pieterm aritzburg

C BADUL

University of KwaZulu-Natal, Pieterm aritzburg

1. Introduction

This is a discu ssion of the principles regarding the recusal of

judicial off‌icers in the context of the cas e of Moolla v Director of

Public Prosecutions and others (30 653/2010) [2012] ZAGP JHC 94, (23

March 2012). This case highlights a number of controversial aspects

regarding recusal applications, including the procedures to be followed

regarding the ascertai nment and evaluation of factual evidence and

how one is to conceive of the notional reasonable person for the

purposes of establishi ng whether suff‌icient grounds for recusal are

established. It also raises issues relati ng to the relationship between

the attorney and cl ient.

2. Background

It is trite that all judicial of f‌icers are required to be impar tial (Van

Rooyen v The State (General Council of the Bar Interv ening) 2002

(5) SA 246 (CC) at para [31]). This is an element of natural just ice,

and is protected in various internat ional instruments a s well as in the

The duty of recusal 47

(2014) 27 SACJ 47

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Constitution of the Republic of South Afr ica (see especially sections

34, 35(3) and section 165(2). See also President of the Republic of South

Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) at

par as [2 8]- [3 0]).

Impartialit y is a precondition for actual justice to be done between

parties, and is also foundational i n establishing the legitimac y of

the legal process in the eyes of the public (SS Ngcobo ‘Sustaining

public conf‌idence in the judiciary: An essentia l condition for realising

the judicial role’ (2011) 128 SALJ 5 at 6; I M ahomed ‘The role of

the judiciary in a const itutional state’ (1999) 115 SALJ 111 at 112; S

Kenny ‘Maintaining public conf‌idence in the judici ary: A precarious

equilibrium’ (1999) 25 Monash University LR 209 at 210).

A presiding off‌icer who is not impartial m ay not adjudicate the

matter before him. The governing pri nciples regarding recusals in

South Africa have largely been sett led in three constitutiona l court

cases (per Wallis J in Ndlovu v Minister of Home Affairs 2011 (2) SA

621 (KZN) at paras [20], [35], [38]). The trilogy comprises the following

cases: President of the Republic of South Africa v S ARFU sup ra; South

African Commercial Catering and Allied Worker s Union v Irvin and

Johnson (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC),

(hereafter SACCAWU v I & J) and Berner t v ABSA Bank Ltd 2011 (3)

SA 92 (CC)).

Impartialit y requires the presiding off‌icer to consider the cases

of the parties before him on thei r own merits, with an open mind

and without being unduly inf‌luenced by irrelevant considerations

(President of the Republic of South Africa v S ARFU supra at para [104]).

Because the perception of imparti ality is just as impor tant as actual

impartialit y, the test for impartiality is not whether there is act ual

bias for or against one of the parties. T he test is rather whether there

is a reasonable perception of bias which a reasonable person would

have apprehended from the circumstances surroundi ng the trial (S v

Maseko 1990 (1) SACR 107 (A); Sager v Smith 2001 (3) SA 1004 (SCA);

S v Shackell 2001 (2) SACR 185 (SCA)).

Where there is a reasonable apprehension of bias, and the presiding

off‌icer improperly refuses to recuse hi mself, the dissatisf‌ied part y

has a number of options. He may apply for a mandamus compelling

recusal, or appeal against the ref usal to recuse, or continue with the

proceedings (Steytler NO v Fitzgerald 1911 AD 295 at 327; Geldenhuys v

R.M. Sutherland1914 CPD 366; Moch v Nedtravel Pty Ltd t/a American

Express Travel Ser vice 1996 (3) SA 1 (A) at 8, 10; Zweni v Minister of

Law and Order 1993 (1) SA 523 (A) at 536 A-C; SACCAWU v I & J supra

at para [5]).

Where the part y continues with the trial, and the f‌i nal outcome

conf‌irms the perceived bias, the presidi ng off‌icer’s failure to recuse

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