South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgara J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 09 June 2000
• Citation: 2000 (3) SA 705 (CC)
• Docket Number: CCT 2/00
• Hearing Date: 18 May 2000
• Counsel: M S M Brassey SC (with him N M Arendse SC and A P J du Plessis) for the applicants. L A Rose-Innes SC (with him J C Butler) for the respondent.
• Court: Constitutional Court

South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)
2000 (3) SA 705 (CC)

2000 (3) SA p705

Citation	2000 (3) SA 705 (CC)
Case No	CCT 2/00
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgara J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
Heard	May 18, 2000
Judgment	June 9, 2000
Counsel	M S M Brassey SC (with him N M Arendse SC and A P J du Plessis) for the applicants.; L A Rose-Innes SC (with him J C Butler) for the respondent.

Flynote : Sleutelwoorde B

Recusal — On grounds of appearance of bias — Application for recusal C refused — Appeal against refusal pursued prior to dealing with merits of case — Although proceeding with merits of matter instead of insisting on challenging refusal to recuse by way of appeal may constitute waiver of recusal objection, it occurs only if it is unambiguous — Recusal point unless so abandoned remains good for later appeal — Court that dismisses D challenge to its composition has ruled that it is properly constituted — In those circumstances, court has power to regulate its own proceedings, including power to direct that party whose challenge has been dismissed should proceed with merits of matter before it — Generally, considerations pointing strongly against piecemeal appeals, though matter remains overridingly one of convenience — Whether E court that has dismissed recusal application permits applicants to bring appeal proceedings first will depend on range of factors, including nature of matter, nature of objection to court's composition, prospects of success in recusal, and, in case of appellate Court, length of record — Decision on these factors lies with court itself. F

Recusal — On grounds of appearance of bias — Test for — Two considerations built into test for recusal — First is that, in considering application for recusal, court as starting point presumes that judicial officers are impartial in adjudicating disputes — This in-built aspect entails two further consequences: on one hand, applicant for recusal bears onus of rebutting G

2000 (3) SA p706

presumption of judicial impartiality; on other, A presumption not easily dislodged, requiring 'cogent' or 'convincing' evidence to be rebutted — Second in-built aspect of test is that 'absolute neutrality' is something of chimera in judicial context: Judges unavoidably the product of own life experiences and perspective thus derived inevitably and distinctively informs each Judge's performance of her or his judicial duties — Colourless B neutrality stands in contrast to judicial impartiality — Impartiality is that quality of open-minded readiness to persuasion that is keystone of civilised system of adjudication — Impartiality requires mind open to persuasion by evidence and submissions of counsel; and, in contrast to neutrality, this is absolute requirement in every judicial proceeding.

Recusal — On grounds of appearance of bias — Grounds for — Not only must C person apprehending bias be reasonable person, but apprehension itself must in circumstances be reasonable — Mere apprehensiveness on part of litigant that Judge would be biased not enough — Court has to scrutinise apprehension carefully to determine whether it is to be regarded as reasonable — In adjudging this court superimposes normative assessment D on litigant's anxieties, attributing to litigant's apprehension a legal value and thereby deciding whether it is such that it should be countenanced in law — Legal standard of reasonableness is that expected of person in circumstances of individual whose conduct is being judged.

Recusal — On grounds of appearance of bias — Test for — Test which E applicable to trial court cannot be applied without reservation to appellate proceedings, where presumption of impartiality has added practical force — Presumption of judicial impartiality generally has to apply with added force in appellate Court, where law rightly supposes that reasonable litigant would have knowledge of institutional aspects that operate to guarantee fair appreciation of her or his appeal. F

Headnote : Kopnota

Certain of the respondent's employees had participated in industrial action (the first matter), which resulted in some being dismissed and others being given final written warnings. Subsequent thereto there was protest action against these dismissals (the second matter), which resulted in further dismissals, including employees to G whom final warnings had been given. Separate proceedings arising out of this action were instituted in the industrial court. Both matters were then referred to the Labour Appeal Court (LAC), with the second matter being heard first. The LAC found in favour of the respondent, with the Court reciting evidence which was uncontested in that case, but which was in issue in the first matter. When the first matter came before the H LAC, two of the Judges who had heard the second matter were due to preside over the appeal. The applicants brought an application for the recusal of those Judges. The application was refused, with the LAC finding, inter alia, that the issues in the two cases were not identical. The applicants then applied for a certificate to apply for leave to appeal to the Constitutional Court, but were granted a I negative certificate by the LAC. They then lodged an application for leave to appeal to that Court, which heard the application together with the merits of the appeal. During the course of argument the applicants advanced different grounds for recusal from those advanced before the LAC.

Held, that, although proceeding with the merits of a matter instead of insisting on challenging the refusal to recuse by way of appeal may constitute a waiver J

2000 (3) SA p707

of the recusal objection, it occurred only if it was unambiguous. The recusal point unless so abandoned A therefore remained good for a later appeal. There was to be no question of an 'entitlement' to proceed immediately with a recusal appeal before arguing the merits of the case. (Paragraph [4] at 711F - 712A.)

Held, further, that a court that had dismissed a challenge to its composition had ruled that it was properly constituted. In those circumstances, the LAC had had the power to regulate its own B proceedings, including the power to direct that the party whose challenge had been dismissed should have proceeded with the merits of the matter before it. Generally considerations pointed strongly against piecemeal appeals, though the matter remained overridingly one of convenience. Whether a court that had dismissed a recusal application permitted the applicants to bring appeal proceedings first would depend C on a range of factors. These included the nature of the matter, the nature of the objection to the court's composition, the prospects of success in the recusal and, in the case of an appellate Court, the length of the record. The decision on these factors lay with the court itself. The applicants therefore had not been entitled to proceed as of right with the application for leave to appeal. (Paragraph [5] at 712A/B - D.) D

Held, further, that there were two considerations built into the test for recusal. The first was that, in considering the application for recusal, the court as a starting point presumed that judicial officers were impartial in adjudicating disputes. This in-built aspect entailed two further consequences. On the one hand, it E was the applicant for recusal who bore the onus of rebutting the presumption of judicial impartiality. On the other, the presumption was not easily dislodged. It required 'cogent' or 'convincing' evidence to be rebutted. The second in-built aspect of the test was that 'absolute neutrality' was something of a chimera in the judicial context. This was because Judges were human. They were unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informed each Judge's performance of her or his judicial duties. But colourless neutrality stood in contrast to F judicial impartiality. Impartiality was that quality of open-minded readiness to persuasion - without unfitting adherence to either party or to the Judge's own predilections, preconceptions and personal views - that was the keystone of a civilised system of adjudication. Impartiality required, in short, a mind open to persuasion by the evidence and the submissions of counsel; and, in contrast to neutrality, this was an absolute requirement in every judicial G proceeding. (Paragraphs [12] and [13] at 713H/I - 714D/E.)

Held, further, that not only had the person apprehending bias to be a reasonable person, but the apprehension itself had in the circumstances to be reasonable. Mere apprehensiveness on the part of a litigant that a Judge would be biased - even a strongly and honestly felt anxiety - was not enough. The court had to scrutinise carefully the H apprehension to determine whether it was to be regarded as reasonable. In adjudging this, the court superimposed a normative assessment on the litigant's anxieties. It attributed to the litigant's apprehension a legal value and thereby decided whether it was such that it should be countenanced in law. The legal standard of reasonableness was that expected of a person in the circumstances of the individual whose I conduct was being judged. (Paragraphs [14], [16] and [17] at 714E/F - F and 715C - D/E.)

Held, further, that the test which was applicable to a trial court could not be applied without reservation to appellate proceedings, where the presumption of impartiality had an added practical force. A trial was a dynamic process where the issues developed under the supervision of the presiding J

2000 (3) SA p708

judicial officer...