Take and Save Trading CC and Others v Standard Bank of SA Ltd

• Jurisdiction: South Africa
• Judge: Harms JA, Scott JA, Cameron JA, Mthiyane JA and Conradie JA
• Judgment Date: 27 February 2004
• Citation: 2004 (4) SA 1 (SCA)
• Docket Number: 21/2003
• Hearing Date: 16 February 2004
• Counsel: D J Shaw QC for the appellants. C J Pammenter SC for the respondent.
• Court: Supreme Court of Appeal

Harms JA:

[1] During the course of the plaintiff's case in a trial, and at a crucial stage when the last of the plaintiff's witnesses had to be cross-examined, the defendants' legal team withdrew without proffering any reason. The defendants represented by one of them (Mr Mansoor) then applied for a postponement of the trial. The learned H trial Judge (P C Combrinck J in the Durban and Coast Local Division) debated the merits of the postponement application with him because it seemed to the Judge that the application was nothing but a tactical move to gain time. During the course of the debate the Judge expressed in no uncertain terms that he thought that there was little merit in I two aspects of the defendants' case and that the postponement would have amounted to an exercise in futility; the other defences depended on Mansoor's evidence, which he, the Judge suggested, could give without the benefit of counsel. Eventually, however, the Judge granted a postponement. When the matter was again enrolled, the defendants, now represented by another counsel, J

Harms JA

applied by way of notice of motion for the Judge to recuse himself. He refused the A application and the subsequent one for leave to appeal met the same fate. This Court eventually granted leave.

[2] Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common-law B right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this Court and the Constitutional Court, and does not require any restatement. [1] It is nevertheless convenient for present purposes to quote the following extracts from a Constitutional Court judgment for purposes of emphasis C and because they are particularly germane to this case: [2]

'The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.' D

'At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.'

[3] That is one side of the coin. The other is E this: [3]

'A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a Judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A Judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.' F

The same applies to civil proceedings: a Judge is not simply a 'silent umpire'. [4] A Judge 'is not a mere umpire to answer the question ''How's that?''' Lord Denning once said. [5] Fairness of court G proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence. A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to H

Harms JA

withdraw from the case (and more often than not to reappear at a later stage), or of A clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination B of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.

[4] A balancing act by the judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray. Should the line on occasion be overstepped, it does not mean that a recusal has to follow or the C proceedings have to be set aside. If it is, the evidence can usually be reassessed on appeal, taking into account the degree of the trial court's aberration. [6] In any event, an appeal in medias res in the event of a refusal to recuse, although legally permissible, is not available as a matter of right and it is usually not the route to follow because the balance of convenience [7] more often than not requires that D the case be brought to a conclusion at the first level and the whole case then be appealed. [8]

[5] This approach, which has been followed for many years by this Court, may at first blush appear to be in conflict with the statement that a biased (or apparently biased) Judge commits 'an irregularity in the proceedings every minute he remains on the E bench'. [9] That statement was contextualised in S v Khala: [10]

'The circumstances of the litigant complaining of the conduct of the Judge during the trial itself, differ materially from those of one who relies on outside factors which he...