President of the Republic of South Africa and Others v South African Rugby Football Union and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P; Langa DP; Ackermann J; Kriegler J; Goldstone J; Madala J; Mokgoro J; O' Regan J; Sachs J; Yacoob J
• Judgment Date: 04 June 1999
• Counsel: M C Maritz SC (with him M Helberg SC and J G Cilliers) for the applicants in the application for recusal (respondents in the appeal). W H Trengove SC (with him A E Bham and M Chaskalson) for the respondents in the application for recusal (appellants in the appeal).
• Docket Number: CCT 16/98
• Court: Constitutional Court

The Court:

[1] On 7 May 1999, the ten members of this Court [1] unanimously dismissed an application brought by the fourth respondent, Dr Louis Luyt, for the recusal of four members of the Court. The following order was made:

'After considering the arguments addressed to us during the I past three days we have come to a firm decision on the application for recusal and on the order to be made. The preparation and delivery of J

The Court

reasons for this decision would further delay the hearing of the A appeal which has already been delayed by the time taken in dealing with the application. We will accordingly give reasons for our decision later. Our decision on the application, which is a unanimous decision of all the Justices of this Court, is as follows:

1.

The application for the recusal of the four members of this B Court is a constitutional matter within the meaning of s 167 of the Constitution of the Republic of South Africa Act 108 of 1996, and this Court accordingly has jurisdiction to decide the application.

2.

The applicant has failed to establish that, objectively C regarded, there are grounds for any of the four Judges to recuse themselves.

3.

Each of the four Judges concerned agrees with this conclusion in so far as it applies to himself and declines to recuse himself.

4.

The application for recusal is accordingly dismissed.

5.

The wasted costs occasioned by the application for recusal are reserved.'

The reasons for the order appear from this judgment. D

The previous proceedings

[2] On 17 April 1998 De Villiers J, sitting in the Transvaal High E Court, made an order reviewing and setting aside the decision of the President of the Republic of South Africa (the President) to appoint a commission of inquiry into certain financial and administrative aspects of the South African Rugby Football Union (SARFU) and related matters. He also set aside a proclamation which had been made by the President under the Commissions Act. [2] The reasons for the orders made by De F Villiers J were given on 7 August 1998. [3] It is relevant to the recusal application that the learned Judge made credibility findings adverse to the President, [4] the Minister of Sport and Recreation (the Minister) and the Director-General of Sport and Recreation (the DG).

[3] The proceedings in the High Court were launched by SARFU, G the Gauteng Lions Rugby Union, the Mpumalanga Rugby Union and the fourth respondent. [5] The President was cited as the first respondent, the Minister as the second respondent and the DG as the third respondent. We shall henceforth refer to the applicants in the High Court as the respondents and to the respondents in the High Court as the appellants. H

[4] The President and the other two appellants initially lodged an application in the High Court for leave to appeal to the Supreme Court I

The Court

of Appeal. They did so after the order had been made but prior to the A furnishing of reasons. However, before that application was heard, they lodged a notice of appeal in this Court and simultaneously applied for an order condoning the late filing thereof. SARFU and the other applicants opposed the application for condonation, contending that any appeal against the orders made by De Villiers J should be heard by the Supreme Court of Appeal and not by this Court. The application for condonation was granted in terms of B an order made by this Court on 2 December 1998. The reasons for that order appear from the judgment of Chaskalson P. [6]

[5] In terms of the order of 2 December 1998, the hearing of the C appeal was to have begun on 23 March 1999. However, pursuant to a request from the respondents' attorneys the hearing was postponed to 4 May 1999.

The recusal application D

[6] Shortly before the appeal was due to be heard, the fourth respondent lodged an application for recusal in which he stated that he had 'a reasonable apprehension' that every member of this Court would be biased against him and that as a result he might not get a fair trial. In addition to various averments which he made concerning all the members of this Court and on which this apprehension was said E to be based, the fourth respondent went on to make specific averments pertaining to the President and Deputy President of the Court, and three of its other members, Kriegler J, Sachs J and Yacoob J. The application for recusal was addressed only to these five members of the Court because, said the fourth respondent, 'after F careful deliberation' he had decided not to include the other Judges in his application, 'but to leave it to the conscience of such individual members'. The details of the allegations made against all the members of this Court will be referred to later. It is sufficient for the moment to say that the fourth respondent apprehended improper motives on the part of all the members of this Court. If that G apprehension were reasonable, all its members would have been under a duty to recuse themselves, despite the fact that no formal application for such relief was made.

[7] This was an unprecedented application for recusal, H implicating each of the Judges of this Court, questioning their impartiality, and impugning the integrity of the Court as an institution. On the fourth respondent's own showing, the circumstances on which his suspicion that the Court was biased against him had existed and been known to him for more than three months before the application was launched. As will appear from what I is said later, the averments made against the five Judges whose recusal was specifically sought, were based on information which in almost all material respects was either known to the fourth respondent, J

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or was a matter of public record and must have been known to him or A his legal advisers for some time prior to the launching of the application.

[8] The recusal application was lodged with the Registrar on the afternoon of Thursday 29 April 1999. The first day of the Court's term was Monday 3 May 1999. The appeal was due to commence on Tuesday B 4 May 1999 and nine Court days had been reserved for the hearing. The appeal record consisted of more than 6 500 pages, and close to a thousand pages of written argument had been lodged with the Court. All the Judges had been engaged in preparing for the appeal during the Court recess. The same no doubt applied to the three counsel and the attorneys representing the appellants. C

[9] This Court sits en banc and all of its available members are expected to sit in every case. Its quorum is eight of its members. [7] If the five Judges were to have recused themselves the quorum would have been broken and the appeal would not have been able to proceed. The appellants had an D appeal to this Court as of right. Having elected to exercise that right, no other Court had jurisdiction to hear the appeal. [8] It is against this background that the application for recusal had to be decided.

[10] At the very outset we wish to acknowledge that a litigant E and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. [9] Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the Judge whose recusal is sought there should be a full appreciation of the admonition that she or he should 'not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront'. [10] F

The correspondence which anticipated the recusal applications

[11] On 13 April 1999 the fourth respondent's attorney, Dr David Botha (Botha), addressed a letter to the President of this Court, Chaskalson P. Having regard to the importance of this letter it is as well to set out its terms in full. G

'We refer to the hearing in the appeal of this matter, which has been set down for 4 May 1999.

We address this letter to you on the instructions of Dr Luyt, being the fourth respondent in the aforesaid matter.

Our client has consulted us as a result of a strong perception H which he entertains that he might not receive a fair hearing in the above matter, a view which appears to be shared publicly.

The matter has always been political, but since the order that the President appear personally to be examined and cross-examined and since the Court a quo has made the adverse credibility findings relating to the President, the matter has increasingly become a political issue. I

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The two main opposing litigants are the respective leaders of A opposing political parties.

The position is further complicated by the fact that the President and individual members of this honourable Court have all been appointed by President Mandela himself.

Under the circumstances our client is concerned that he might not get a fair hearing and in particular is concerned that some of the members of the Court might not be able objectively and B impartially to adjudicate on the credibility of the President and relevant issues.

The client's perception and fear in this regard arise not only from the aforegoing and other obvious considerations such as the tremendous standing that our President has, both nationally and internationally, but also from certain information that he has received and from allegations that have been made to him relating to C the past involvement of some or more of the members of this Court with the President or his family, relating to the political affiliation and involvement of one or more of the members of this Court, relating to the personal relationships and social contact between the President and some of the members of the Court, and relating to animosity between a member of the Court and the client's attorney of...