Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service

• Jurisdiction: South Africa
• Judge: Hefer JA, E M Grosskopf JA, Vivier JA, F H Grosskopf JA, Van Coller AJA
• Judgment Date: 22 February 1996
• Docket Number: 329/95
• Hearing Date: 23 November 1995
• Counsel: J J Gauntlett SC (with him Sven Olivier) for the petitioner (appellant). S F Burger SC (with him J L Kaplan) for the respondent.
• Court: Appellate Division

Hefer JA:

This matter came before us as an opposed application for leave to appeal which had been referred to the Court for consideration upon argument in terms of s I 21(3)(c)(ii) of the Supreme Court Act 59 of 1959, as amended. The main issue is the appealability of an order dismissing an application to an Acting Judge of the Witwatersrand Local Division to recuse himself from proceedings brought by the present respondent for the sequestration of the petitioner's estate. If the ruling on this issue goes against the petitioner there is an end to the matter. If J

Hefer JA

A it goes in her favour, the merits of the order in the recusal application will have to be considered in the context of the prospects of success in the proposed appeal. This will enable us, in the event of leave being granted, to dispose of the appeal as well.

The petitioner opposed the sequestration proceedings at the pro-visional stage and B presented the application for recusal after the presiding Judge (Fine AJ) had called for oral evidence to resolve a factual dispute. Fine AJ dismissed the application, heard the evidence and granted an order provisionally sequestrating the petitioner's estate. On the return day the matter came before Eloff JP. There was no appearance for the petitioner and a final order was granted. Thereafter the petitioner approached the C Court a quo with an application for leave to appeal against the provisional order and Fine AJ's refusal to recuse himself. Leave was refused; hence the present petition.

In view of the provisions of s 150 of the Insolvency Act 24 of 1936 as amended, which preclude an appeal against a provisional sequestration order, argument in this Court on the question of appealability was limited to the order dismissing the recusal D application. In order to clear the way for a consideration of the real issue, viz whether such an order is appealable under the provisions of the Supreme Court Act, I will first dispose of an alternative submission made on the petitioner's behalf. It is to the effect that an appeal against an order which is not otherwise appealable may be heard in the E exercise of this Court's so-called inherent jurisdiction. The short answer is that the Court's 'inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice' (per Corbett JA in Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G), does not extend to the assumption of jurisdiction not conferred upon it by statute. As explained in R v F Milne and Erleigh (6) 1951 (1) SA 1 (A) at 5 in fin,

'(this) Court was created by the South Africa Act and its jurisdiction is to be ascertained from the provisions of that Act as amended from time to time and from any other relevant statutory enactment'.

Nowadays its jurisdiction derives from the Supreme Court Act and other statutes but G the position remains basically the same. (Sefatsa and Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A) at 833E-834F; S v Malinde and Others 1990 (1) SA 57 (A) at 67A-B.) The Court's inherent power is in any event reserved for extraordinary cases where grave injustice cannot otherwise be prevented (Enyati Colliery Ltd and Another v Alleson 1922 AD 24 at 32; Krygkor H Pensioenfonds v Smith 1993 (3) SA 459 (A) at 469G-I). This is not such a case because the petitioner elected not to seek the Court a quo's leave to appeal against the final sequestration order which is appealable (with leave) in terms of s 150(1) of the Insolvency Act. In an appeal against that order she would have been entitled to rely - I as will presently be seen - upon the same grounds on which she is now seeking to rely in an appeal against the order in the recusal application. Whatever prejudice she may suffer in the event of an adverse decision on the appealability of the latter order, will accordingly be entirely of her own making.

The provisions of the Supreme Court Act which regulate appeals to this Court in civil matters are ss 20 and 21. In terms of s 20(1) the Court J

Hefer JA

A may hear an appeal from a 'judgment or order' of the Court of a Provincial or Local Division sitting as a Court of first instance in 'any civil proceedings' and, in terms of s 21(1), it may also hear and determine an appeal from any 'decision' of the Court of such a Division. For present purposes it matters not that s 20(1), unlike s 21(1), applies to 'civil proceedings' only. The appealability of the present decision may well B have to be determined in terms of s 21(1) since the application for recusal arose in the course of sequestration proceedings which are not regarded as 'civil proceedings' (cf Law Society, Transvaal v Behrman 1981 (4) SA 538 (A) at 545 in fin-546C and 548A). But, although the purport of s 21(1) is to vest in the Court a jurisdiction not conferred on it in s 20(1), it has been held that the 'decision' referred to therein must be C of the same nature as a 'judgment' or 'order' in the sense in which those terms are used in s 20(1). (Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A) at 584E-F and cases cited there.) In the present case the crisp question to be decided is thus whether the order in the recusal D application can be categorised as a 'judgment or order' as envisaged in s 20(1); if not, it also lacks the requirements for a 'decision' in terms of s 21(1).

Respondent's argument for a negative answer is based on the judgment in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) in which this Court reviewed some of the general propositions commonly advanced in the decided cases in connection E with the special, almost technical, meaning of 'judgment or order' in s 20(1) and its forerunners in earlier legislation. In a passage appearing at 536A-C Harms AJA said:

'In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a F non-appealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.'

(See also Marsay v Dilley 1992 (3) SA 944 (A) at 962B-F.) Before I deal with the impact of these remarks, I refer to the general proposition mentioned at 532I to the G effect that 'not merely the form of the order must be considered but also, and predominantly, its effect'. The first step in the present enquiry is thus to ascertain the effect of the dismissal of the application for recusal.

The application arose from an allegedly reasonable suspicion on the petitioner's part H that Fine AJ might be biased against her. The difference of opinion which had for many years been reflected in the decisions of the Courts in regard to the proper test to be applied in recusal applications involving the appearance of bias was recently settled in BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A). In that case this Court concluded (at I 693I-J) that the existence of a reasonable suspicion of bias satisfies the test. It is accordingly incumbent upon every Judge to recuse himself from any matter in respect of which he is reasonably suspected of bias towards or against one of the parties.

The effect of a refusal to do so is clear. Unlike the seemingly controversial status in English administrative law of the decisions of J

Hefer JA

A biased officials (cf Craig Administrative Law 3rd ed at 467-8; Wade 'Unlawful Administrative Action: Void or Voidable' (1968) 84 LQR 95), firm and authoritative views have been expressed in South Africa regarding the effect on judicial proceedings of a Judge's refusal to withdraw from a matter from which he should have recused himself. Without spelling out its actual effect Centlivres CJ observed in R v Milne and B Erleigh (6) (supra at 6 in fin) that a biased Judge who continues to try a matter after refusing an application for his recusal thereby

'commits . . . an irregularity in the proceedings every minute he remains on the bench during the trial of the accused'.

The judgment in Council of Review, South African Defence Force, and Others v C Mönnig and Others 1992 (3) SA 482 (A) is more explicit. (Although the Court in that case dealt with the proceedings before a court martial, it is clear from the remarks at 491C-D and in the passage to be quoted that the principles applied were in fact those applicable to courts of law.) Dealing with the effect of the officers constituting the D court martial's refusal to recuse themselves and with the powers of a subsequent council of review, Corbett CJ said at 495A-D:

'What must be remembered is that in the present case we are concerned with the proceedings of what is in substance a...