Waiver of the right to judicial impartiality : comparative analysis of South African and Commonwealth jurisprudence

• Published date: 01 January 2013
• Date: 01 January 2013
• Author: Laurence Juma,Chuks Okpaluba
• DOI: 10.10520/EJC153154
• Pages: 1-21

Waiver of the right to judicial

impartiality: Comparative analysis of

South African and Commonwealth

jurisprudence

Chu ks O kpaluba a nd L aure nce Juma

* **

Abstract

This pape r inve stigates wh ether judic ial inde pendenc e and impar tiality entrenc hed in writte n

cons titutions an d r ecogn ised by the com mon law as fu ndame ntal require ments of fair

adm inistratio n of justice can be su bjected to the pr ivate law prin ciples of wa iver, estop pel or

acqu iescenc e. In a n attem pt to answer this qu estion, the pap er sugg ests t hat th e startin g

point shou ld be the inte rrogation of wheth er the right alleged to be waived ema nates from the

cons titution or adm inistra tive law. At com mon law, a rig ht can be waived , insof ar as the party

involv ed had know ledge of the righ t a nd failed to asse rt it. S imilarly, a part y wh o had

repr esented a state of affairs up on w hich the other relie d t o h is d etrimen t is, in equity,

esto pped fro m going back o n that un derstand ing. How ever, the p roblem is that a w aiver of

a const itutional right is not easily pres umed nor is the defe nce of estoppe l readily permis sible.

Obv iously, the ind ividual’s pr erogative is lim ited if the right in qu estion is in the intere st of the

public becau se an in dividual c annot w aive a r ight entr enched in the C onstitutio n or sta tute

for the protectio n of the public . This pap er co nsiders the jurispr udence dea ling w ith this

limita tion that eman ates from sev eral comm onwealt h jurisd ictions. In conc lusion, it posits the

ques tion whe ther the in troductio n of the concept of ‘intere st of jus tice’ by the South A frican

Con stitutiona l Cour t in Bern ert v ABSA Ba nk Ltd 2011 3 SA 92 (CC ) is the saving gr ace, and

whet her, as a stand- alone conc ept, it can effe ctively subst itute for waiver , e stoppel or

acqu iescenc e in eithe r the co nstitution al or adm inistrativ e law con text.

1 Introduction

The common law attaches much value to the twin principles of judicial

independence and impartiality. Similarly, modern Constitutions accord these

LLB LLM PhD, Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare.

*

LLB LLM MA LLD, Associate Professor of Law, Rhodes University.

**

2(20 13) 28 SAPL

precepts pre-eminent space. Again, these values are recognised in international

1

human rights instruments, and modern human rights legislation, as essential

conditions precedent to the fair administration of justice. The question with which

2

this article grapples, is whether a right so universally revered and constitutionally

guaranteed can possibly be waived either expressly or by the conduct of the party

seeking to enforce the right? In eff ect: to what extent, if any, should waiver,

acquiescence or estoppel, being private law principles, apply in public

3

adjudication? Or, are they exceptions to the apprehension of bias rule? In

4

negative terms, if the issue of impartiality of a judge is foundational to the system

of justice administered in our courts, then, why should the adverse issues of

waiver, acquiescence or estoppel arise in the event of a breach of a

5

constitutional or administrative justice right? Put another way, would it be in the

interest of justice for a party who ought to take advantage of the fundamental

right vested in him/her be estopped from claiming that right because of procedural

or practical reason(s) arising out of apparent silence or tardiness?

One line of reasoning is that since ‘bias’ is a sp ecies of ‘jurisdictional error’

which can be raised at any stage in the proceedings, waiver, therefore, can have

no application. For instance, whether t he improper constitution of a court is

6

See, eg, ss 33(3)(a), 34 and 165(2), Constitution of the Republic of South Africa 1996; s 12(8),

1

Constitution of the Kingdom of Lesotho 1993; art 12(1)(a), Constitution of the Republic of Namibia

1990. In Zondi v MEC for Traditional and Local Government 2005 3 SA 589 (CC) para 61, the

Constitutional Court held that s 34 is an express constitutional recognition of the importance of fair

resolution of social conflict by impartial and inde pendent institutions. See also Islamic Unity

Convention v Minister of Communications 2008 3 SA 383 (CC) para 51; Berstein v Bester NNO

1996 2 SA 751 (CC) para 105.

See, eg, art 6(1), European Convention for the Protection of Human Rights and Freedoms 1950;

2

s 6(1), United Kingdom Human Rights Act 1998.

See generally, Rabie and Sonn ekus The law of estoppel in South Africa (2000); Visser and

3

Potgieter, Estoppel: Cases and materials (1994). See also Pretorius ‘Deliberate third party conduct

and the creation of obligations (2): Contract and estoppel’ (2011) 74 THRHR 182 para 6.1.

In Australia, necessity, waiver and special circumstances are considered as exceptions – British

4

American Tobacco Australia Services Ltd v Laurie (2011) ALR 429 para 146; Livesey v New South

Wales Bar Association (1983) 151 CLR 288 at 300; Laws v Australian Broadcasting Tribunal (1990)

170 CLR 70 at 88-89, 96-98 and 102; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000)

205 CLR 337 para 4.

In Road Accident Fund v Mothupi 2000 4 SA 38 (SCA) para 15, one of the issues was whether the

5

Road Accident Fund, a statutory body, had by its conduct, waived its right to rely on pres cription,

a statutory provision specifically accorded to the Fund to avert claims which were filed out of time.

The Court of Appeal held that a statutory provision enacted for the special benefit of any individual

or body might be waived by the individual or body provided that no public interests are involved. It

made no difference that the provision was couched in peremptory terms. See also SA Eagle

Insurance Co Ltd v Bavuma 1985 3 SA 42 (A) at 49G-H.

Devries v Canada (N ational Parole Board) (1993) 12 Admin LR (2d) 309 (BCSC); Milne v Joint

6

Chiropractic Professional Review Committee (1992) 97 Sask R 299 at 303, 90 DLR (4 ) 634 (CA).

th

Brand v College of Physicians and Surgeons (Sask) (1990) 86 Sask. R 18, 72 DLR (4 ) 446 (CA).

th

See also Toy-Cronin, ‘Waiver of the rule aga inst bias’ (2000-2003) 9 Auckland Univ LR 850.