Ndimeni v Meeg Bank Ltd (Bank of Transkei)

• Jurisdiction: South Africa
• Citation: 2011 (1) SA 560 (SCA)

Ndimeni v Meeg Bank Ltd (Bank of Transkei)
2011 (1) SA 560 (SCA)

2011 (1) SA p560

Citation	2011 (1) SA 560 (SCA)
Case No	692/09
Court	Supreme Court of Appeal
Judge	Mpati P, Lewis JA, Heher JA, Snyders JA and Tshiqi JA
Heard	November 1, 2010
Judgment	December 1, 2010
Counsel	M Pillemer SC for the appellant.; FA Boda for the respondent.

Flynote : Sleutelwoorde

B Recusal — On grounds of appearance of bias — What constitutes — Acting judge having executed mortgage bonds for litigant, and litigant listing acting judge's firm as one to which such instructions to be given — Reasonable apprehension of bias found.

Headnote : Kopnota

C A reasonable person would reasonably apprehend bias where the acting judge in a matter has executed mortgage bonds for one of the litigants, and where that litigant lists the acting judge's law firm as one to which such instructions are to be given. (Paragraphs [4], [11], [12], [22] and [23] at 562B – D, 564E – F, 564G – 565B and 569E – 570C.)

Cases Considered

Annotations:

Reported cases D

Southern Africa

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

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A): E dictum at 8J – 9G applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (2) SA 14 (CC) (1999 (2) BCLR 175): 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): dictum in para [48] applied F

Rondalia Versekeringskorporasie van SA Bpk v Lira 1971 (2) SA 586 (A): referred to

Sager v Smith 2001 (3) SA 1004 (SCA): 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): G referred to

Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) ([2004] 1 All SA 597): referred to.

Australia

Clenae Pty Ltd and Others v Australia & New Zealand Banking Group Ltd H [1999] VSCA 35: referred to

Re JRL: Ex parte CJL (1986) 161 CLR 342 (HCA): referred to.

England

Dimes v Properties of Grand Junction Canal (1852) 3 HL Cas 759: referred to

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (CA): referred to

R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL): referred to I

R v Gough [1993] AC 646 (HL) ([1993] 2 All ER 724): referred to

Re Ebner; Ebner v Official Trustee in Bankruptcy [1999] FCA 110: referred to.

Case Information

Appeal from a decision in the Labour Appeal Court (Davis JA, Jappie JA J and Leeuw JA). The facts appear from the judgment of Mpati P.

2011 (1) SA p561

M Pillemer SC for the appellant. A

FA Boda for the respondent.

Cur adv vult.

Postea (December 1). B

Judgment

Mpati P (Lewis JA, Heher JA, Snyders JA and Tshiqi JA concurring):

[1] On 15 September 1998 the appellant was dismissed from his position as manager of the Lusikisiki branch of the respondent, following a C disciplinary enquiry. The chairman of the enquiry had found him to have acted irregularly and contrary to the standing bank procedures or practice in the execution of his duties as branch manager, particularly in respect of transactions relating to the account of Mr YI Docrat, who owned a supermarket at Flagstaff (charge 1). There were three further charges in respect of which the appellant was found guilty and for which D he was given a final written warning. It is not necessary to mention these charges for present purposes.

[2] The appellant challenged the findings of the chairman of the disciplinary enquiry before the Labour Court (Zilwa AJ) on grounds of E lack of procedural and substantive fairness. The Labour Court confirmed the findings of the chairman in respect of three of the charges and imposed a sanction of summary dismissal for the first charge, and a final written warning for the second and third charges. The appellant subsequently gave notice of his intention to apply for leave to appeal against the order of the Labour Court, but later discovered that Zilwa AJ F and 'close members of his family' each allegedly had some commercial relationship with the respondent. He promptly gave notice that 'at the hearing of the application for leave to appeal on 16 November 2001' he would apply to amend his grounds of appeal by adding the following ground:

'Leave to appeal to the [LAC] is granted for the purpose of enabling the G [appellant] to apply to the [LAC] for an order permitting the leading of oral evidence on why the trial judge should have recused himself.'

In his affidavit in support of the application to amend his grounds of appeal the appellant alleged that he believed Zilwa AJ 'was biased in [his] H case and had [he] been aware of the above facts at the time of the trial of this matter [he] would have instructed [his] representative to request him [Zilwa AJ] to recuse himself'.

[3] However, for reasons that have not been disclosed, Zilwa AJ failed to hear the appellant's application for leave to appeal, with the result that I the appellant approached the Labour Appeal Court (LAC) for leave to appeal to it, on the ground of constructive refusal of leave by the Labour Court. (I should mention that the application was set down for hearing on 12 November 2001, but was postponed to 16 November 2001 at the instance of the appellant. It was again postponed on that day sine die and never set down again, despite the appellant's endeavours, according to J

2011 (1) SA p562

Mpati P (Lewis JA, Heher JA, Snyders JA and Tshiqi JA concurring)

A him.) The LAC granted the leave sought, but subsequently dismissed the appeal with costs. This appeal is before us with the special leave of this court.

[4] At the commencement of his argument in this court counsel for the appellant sought leave, on behalf of the appellant, as was done in B the LAC, to introduce the evidence upon which reliance was placed for the assertion that Zilwa AJ should not have presided at the trial, but should have recused himself. It has been held that where a reasonable apprehension of bias is found to be present, the judicial officer is duty-bound to recuse him- or herself. [1] This is so because the common-law C right of each individual to a fair trial, which is now constitutionally entrenched, must be respected. The issue in this appeal, therefore, is whether the evidence sought to be introduced by the appellant satisfies the test of 'reasonable apprehension of bias' and, if so, whether the proceedings before the Labour Court were a nullity.

D [5] It is perhaps convenient, for a better understanding of the circumstances of the case, to set out a brief summary of the facts relating to the charge in respect of which the appellant was summarily dismissed. Mr Jacobus Daniel Marais, the collection manager of the respondent, testified that he discovered an activity by Docrat called 'cross firing' or 'kite flying' [2] on his account with the respondent, which resulted in the E latter suffering a loss of approximately R9 million. In order to recoup some of its losses the respondent allowed Docrat to operate a trading account at its Lusikisiki branch, but he was not allowed an overdraft facility on it. It is not in dispute that Docrat's loan account was managed by Marais at the respondent's head office in Umthatha. The trading F account was managed by the appellant. Although he had no overdraft facility in respect of the trading account, Docrat was allowed an unofficial overdraft of R130 000. Marais testified, however, that the branch was required to report to head office as soon as the account went into overdraft.

G [6] In March 1998 the trading account was overdrawn by more than a million rand due to the deposit of a bad cheque for the sum of R727 190,16, which was returned three times, but redeposited each time. In the meantime cheques drawn on the account were met against the uncleared positive balance reflected in it. The respondent reacted by sequestrating Docrat and closing his business. It took a loss of more than H one million rand in the process.

[7] The appellant, on the other hand, testified that all transactions on Docrat's trading account were effected on the express instructions of Marais, who was responsible for the operation of the account, together with the managing director, Mr George Kaltenbrünn. He therefore I contended that Marais was responsible for the loss suffered by the

2011 (1) SA p563

Mpati P (Lewis JA, Heher JA, Snyders JA and Tshiqi JA concurring)

respondent. But Marais' version was that he and the credit manager at A head office, a certain Ms Ntuli, only monitored the overdraft part of the account, and that the administration of the account remained with the branch where it was operated. The appellant was thus to blame for the loss because he had failed to report to head office accurately and to follow established policies relating to drawing against uncleared effects. B Mr Batembu Diko, the accountant at the Lusikisiki branch, testified that he acted as manager of the branch in the absence of the appellant. He said that he would report to the head office on Docrat's account only when it was overdrawn and Docrat wished to draw on it. The authority to allow Docrat to withdraw money on his overdrawn account would thus be obtained from head office. The Labour Court disbelieved the C appellant and found him guilty of misconduct as charged.

[8] Although it made reference to the evidence relating to the claim of bias, the LAC did not consider this ground of appeal. Its reason for this appears from the following passage in the...