Makukumare NO. v Brits

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: M Mamosebo J and SL Erasmus AJ
• Judgment Date: 25 February 2022
• Court: Northern Cape Division
• Hearing Date: 25 November 2021
• Docket Number: 1825/2019

Erasmus AJ:

[1]

The applicant lodged an application in terms of Rule 53(1)(a) for reviewing and setting aside the first respondent's decision not to recuse himself in a civil matter under case number 34/2017, held at the Pampierstad Magistrates Court. The applicant also sought a cost order

2022 JDR 1980 p2

Erasmus AJ

against the first respondent, alternatively that the costs of the application be paid by the first and second respondents, further alternatively by the second respondent, on a scale as between attorney and client.

[2]

The application against the second respondent was later withdrawn and the applicant tendered the costs of the second respondent.

[3]

The basis for the relief sought is that the applicant reasonably suspected and apprehended that the first respondent 'would or might be biased against her and will not bring an impartial mind to bear on the adjudication of the civil matter ...'. The applicant listed, in the Notice of Motion, several grounds which appear to be the grounds for the perception of bias. These grounds entail that the first respondent:

3.1

Constantly communicated with the second respondent in connection with the pending civil matter in the absence of the applicant;

3.2

Refused to make appropriate orders against the second respondent where such applications were not opposed by the second respondent and such orders were imperative;

3.3

Accepted an ex parte application and granted two conflicting and parallel orders to stay the execution

2022 JDR 1980 p3

Erasmus AJ

of the warrant and changed dates of the hearing without notice to or the knowledge of the applicant and to wrongfully substitute and amend the second respondent's initial application;

3.4

Contrary to Rule 3 of the Magistrates Court Rules, issued the second respondent's application to stay the execution and thereby usurping the statutory duties and functions of the clerk of the court to benefit and favour the second respondent; and

3.5

Kept the court file to himself, which raised suspicion and the apprehension that the first respondent had a specific purpose in mind.

[4]

The first respondent abides the decision of this Court but opposed the cost order sought against him. He filed an affidavit in which he set out the background to the civil claim and the chronology of the events. The first respondent disputed the allegations of bias, mala fides and/or that he had acted in contravention of his duties as a magistrate.

[5]

From the affidavit of the first respondent, it appears, inter alia, that the first respondent had already recused himself in August 2019, shortly after the review application was lodged, when new facts came to light. I pause to mention that these facts have nothing to do with the merits of the recusal application or the civil

2022 JDR 1980 p4

Erasmus AJ

matter itself. The first respondent also averred that he had informed the legal representatives of both parties in the civil matter under case number 34/2017.

[6]

The applicant denied both the allegations about the recusal and about informing the parties thereof in the replying affidavit. Mr Bojosinyane, on behalf of the applicant, conceded during argument before us that this was correct. This renders the relief sought moot in that a y order pertaining to the recusal will have no practical effect. Despite knowledge of the recusal, the applicant proceeded with the application and Mr Bojosinyane argued the merits of the application before us.

[7]

The merits of the application are relevant to the issue of costs, at least up and until the date of recusal of the first respondent.

[8]

On 3 July 2019 and before the first respondent, Mr Bojosinyane, the attorney for the applicant, made oral submissions and requested that the first respondent recuse himself from the civil matter under case no 34/2017. This was done without lodging a substantive application, supported by evidence under oath and without notice to the second respondent. [1] He set out the background to the application and complained about the conduct of the second respondent's attorneys. From the document, relied upon by the applicant, it appears

2022 JDR 1980 p5

Erasmus AJ

that the real issues in dispute were between the attorneys of the applicant and the second respondent in the civil matter.

[9]

Recusal is a matter regulated by the constitutional fair trial requirement, the common law and case law. Article 13 of the Judicial Code of Conduct, adopted in terms of section 12 of the Judicial Service Commission Act [2] , addresses the issue of recusal and provides that a judge must recuse him- or herself from a case if there is a -

(a)

real or reasonably perceived conflict of interest or

(b)

reasonable suspicion of bias based upon objective facts, and shall not recuse him- or herself on insubstantial grounds.

[10]

Note 13(v) provides:

'Whether a judge ought to recuse him- or herself is a matter to be decided by the judge concerned and a judge ought not to defer to the opinion of the parties or their legal representatives.'

[11]

Although the Code of Conduct applies to judges, the principles regulating recusal also applies to magistrates as reflected in our case law on the question. [3]

[12]

The test for a reasonable apprehension of bias is objective and the onus of establishing it rests upon the applicant. There is a presumption of impartiality and it is derived

2022 JDR 1980 p6

Erasmus AJ

from s 34 of the Constitution. [4] Judicial officers, through their training and experience, carry out their oath of office and it must be assumed that they can disabuse their minds of any irrelevant personal beliefs and predispositions. The effect of the presumption of impartiality is that a judicial officer will not lightly be presumed to be biased.

[13]

Evidence is required that demonstrates something the judicial officer has done which gives rise to a reasonable apprehension of bias. The fate of a recusal application depends on the totality of the relevant facts in a given case. This means that the person who is 'reasonably' aggrieved by the presence of a particular judge would also have to have been 'properly informed as to the relevant facts and take an objective view of those facts'. [5]

[14]

The applicant for recusal bore the onus of rebutting the presumption of judicial impartiality. The presumption is not easily dislodged and required cogent or convincing evidence to be rebutted. The mere apprehension of bias - even strongly and honestly felt anxiety - is not good enough. [6]

[15]

The request/application for recusal was not based on evidence of the applicant (plaintiff in the civil action) but

2022 JDR 1980 p7

Erasmus AJ

merely on allegations of collusion between the first respondent and the second respondent's attorneys. The application consisted of an address from the Bar by Mr Bojosinyane and was not supported by affidavit or viva voce evidence by the applicant. I did not come across any case where an application for recusal was not supported by evidence...