SOUTH AFRICAN COMMERCIAL CATERING AND ALLIED WORKERS UNION AND
OTHERS v IRVIN & JOHNSON LTD (SEAFOODS DIVISION FISH PROCESSING)
2000 (3) SA 705 (CC)
[zRPz]SOUTH
AFRICAN COMMERCIAL CATERING AND ALLIED WORKERS UNION AND OTHERS v IRVIN
& JOHNSON LTD (SEAFOODS DIVISION FISH PROCESSING) 2000 (3) SA 705
(CC)
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.
Annotations
Link to Case Annotations
B
[zFNz]Flynote : Sleutelwoorde
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
[zHNz]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. Oral A
testimony was led. Pleadings may have been amended as the issues took
shape. The nature of the process imposed duties of evaluation on the
Judge or magistrate, who was required to gauge the personal attributes
of the witnesses who were called and to hold an even hand between the
contenders. A claim that a live and significant issue relevant to the
proceedings had already been decided by the trial Judge could well have B
excited apprehension that the Judge, in shaping the issues as the trial
proceeded, might not have been able to show the requisite dispassion
and open-mindedness. An appellate Court, by contrast, normally evaluated
a written record. The issues of both fact and law had usually long been
crystallised and the Court had the benefit of advance written argument
in which the parties' contentions in regard to those issues were set
out. The collegial nature of an appellate C
Bench moreover reduced the leeway within which the personal attributes,
traits and dispositions of each of the Judges operated. In addition,
appellate Judges, being entrusted with a higher level of judicial
office, were generally more experienced in the craft of judging. For
these reasons, the presumption of judicial impartiality generally had to
apply with added force in an appellate Court, where the law rightly
supposed that the reasonable litigant would have knowledge of the D
institutional aspects that operated to guarantee a fair appreciation of
her or his appeal. (Paragraphs [33], [40], [41] and [42] at 720D/E and
722F/G - 723E.)
Held, further (per
Cameron AJ, Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J,
Ngcobo J, O'Regan J and Yacoob J concurring, Sachs J and Mokgoro J
dissenting) that the Court's recital of the evidence in the second
matter did not E constitute the expression of
clear views on the reliability of that evidence and had no bearing on
how it would evaluate any contested evidence on the points in question
in the first matter. Even if the Court's findings in the second matter
had addressed the question whether the employees misconducted
themselves, this had been indicated on the basis of uncontroverted
evidence. The appeal in the first matter offered the dismissed workers a
still-untrammelled opportunity to F explain
their conduct in relation to the Court's duty to determine whether the
sanction of dismissal for that conduct had been appropriate. In that
critical respect, the Court in the second matter expressed no views
relevant to the present matter. A reasonable litigant, properly
informed, therefore would have attributed appreciably less significance
to the Court's recounting of the background evidence than if it
reflected contested terrain. (Paragraphs G [33], [34] and [35] at 720G - H, 720I - 721B and 721D - D/E.)
Held,
further, that, if an applicant was to advance cogent or convincing
evidence of reasonably apprehended bias, the least that could have been
expected was that he or she would set out the case to that effect
unambiguously in the founding papers. This the applicants had not begun
to do. The shift in the applicants' case created a further problem. The
Judges in the Labour Appeal Court had not only H
been deprived of the benefit of the argument advanced before the
Constitutional Court. They had been denied any opportunity of commenting
upon it. On the assumption that the applicants were granted leave to
appeal, the Court would have been asked to reverse a judgment the
findings of which were not persuasively assailed before it, which had
been directed to a case materially different from the main I
substance of that urged before it and to which none of the litigants
alleged to apprehend bias attested. This did not present the cogent and
convincing evidence required in cases of bias or apprehended bias and
did not pass the high threshold demanded in such cases. (Paragraphs
[44], [45] and [49] at 723I - 724C/D and 725B - C/D.)
The decision in the Labour Appeal Court in SA Commercial Catering & Allied J
2000 (3) SA p709
Workers Union and Others v Irvin & Johnson Ltd (Seafoods A Division Fish Processing) (2000) 21 ILJ 330 (LAC) confirmed.
[zCAz]Cases Considered
Annotations
Reported cases
BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another1992 (3) SA 673 (A): considered B
Beinash and Another v Ernst & Young and Others1999 (2) SA 116 (CC) (1999 (2) BCLR 125): referred to
De Beers Consolidated Mines Ltd v National Union of Mineworkers and Another [1998] 12 BLLR 1201 (LAC): referred to
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): referred to C
Harksen v President of the Republic of South Africa and Others2000 (2) SA 825 (CC) (2000 (5) BCLR 478): referred to
Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC): referred to
Liebenberg and Others v Brakpan Liquor Licensing Board and Another 1944 WLD 52: applied D
Livesey v The New South Wales Bar Association (1983) 151 CLR 288: considered
Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 All ER 65 (CA): applied
Motsepe v Commissioner for Inland Revenue1997 (2) SA 898 (CC) (1997 (6) BCLR 692): referred to E
Muller and Cloete v Lady Grey Divisional Council 1929 EDL 307: referred to
National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd1995 (4) SA 456 (A): dictum at 462C - D applied
National Union of Mineworkers v East Rand Gold and Uranium Co Ltd1992 (1) SA 700 (A): referred to F
President of the Republic of South Africa and Others v South African Rugby Football Union and Others1999 (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 Others1999 (4) SA 147 (CC) (1999 (7) BCLR 725): applied G
President of the Republic of South Africa and Others v South African Rugby Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): referred to
R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL) ([1999] 2 WLR 272): referred to H
R v S (RD) (1997) 118 CCC (3d) 353 (SCC): applied
R v T1953 (2) SA 479 (A): doubted
S v Malinde and Others1990 (1) SA 57 (A): dictum at 67D - 68G applied
S v Manamela and Another (Director-General of Justice Intervening)2000 (3) SA 1 (CC) (2000 (1) SACR 414; 2000 (5) BCLR 491): referred to
S v Roberts1999 (4) SA 915 (SCA) (1999 (2) SACR 243): dictum in para [32] applied I
S v Somciza1990 (1) SA 361 (A): distinguished
S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred to
SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) ([1999] 8 BLLR 741): referred to J
2000 (3) SA p710
SA Commercial Catering & Allied Workers Union A and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) (2000) 21 ILJ 330 (LAC): confirmed on appeal
Shabalala and Others v Attorney-General, Transvaal, and Another1996 (1) SA 725 (CC) (1995 (2) SACR 761; 1995 (12) BCLR 1593; [1996] 1 B All SA 64): referred to
Snyman and Others v Liquor Licensing Court, B Windhoek and Another (2)1963 (1) SA 460 (SWA): applied
Transvaal Agricultural Union v Minister of Land Affairs and Another1997 (2) SA 621 (CC) (1996 (12) BCLR 1573): dictum in para [47] applied
Unilong Freight Distributors (Pty) Ltd v Muller1998 (1) SA 581 (SCA): referred to. C
[zCIz]Case Information
Application for leave to appeal from a decision in the
Labour Appeal Court (Nicholson JA, Conradie JA and Mogoeng AJA),
reported at (2000) 21 ILJ 330, the merits of the appeal being argued simultaneously. The facts appear from the judgment of Cameron AJ.
M S M Brassey SC (with him N M Arendse SC and D A P J du Plessis) for the applicants.
L A Rose-Innes SC (with him J C Butler) for the respondent.
Cur adv vult.
Postea (June 9). E
[zJDz]Judgment
Cameron AJ:
Introduction
[1] When the applicants' appeal against the industrial court's refusal to grant them unfair labour practice relief was called F
in the Labour Appeal Court, they moved for the recusal of two of the
three Judges on the ground that they reasonably apprehended bias against
their appeal. The application was refused1 and a negative certificate in terms of Rule 182 of this Court later issued. The applicants - a trade union and a number of dismissed workers who are its G members - now apply for leave to appeal against the recusal decision.
2000 (3) SA p711
CAMERON AJ
[2] It was not disputed that, since President of the A Republic of South Africa and Others v South African Rugby Football Union and Others3 established that the question of judicial recusal is a constitutional matter,4 the appeal proceedings were competently directed to this Court.5
[3] The parties were also in agreement that, despite the absence of explicit provision in the relevant statute,6 this Court has jurisdiction to decide any question arising from or B connected with the Labour Courts' interpretation of the right to fair labour practices, which is a constitutional right.7
[4] In the Labour Appeal Court it appears to have been
common cause that, although the dismissal of the recusal application
was interlocutory, the applicants could at that stage as of right take
the C recusal question on appeal. In the
certificate proceedings Conradie JA expressed the view that the
applicants 'were entitled' to attempt to proceed with their recusal
appeal first before arguing the merits of the dismissal. This they
decided to do despite an express intimation from the Court that it would
be 'highly desirable' for the appeal D itself
to be disposed of first. The learned Judge's view on this issue, which
is directly connected with the constitutional question and affects the
practice of this Court, which has to decide in every case whether to
grant leave to appeal, does not reflect the correct approach. An
applicant for recusal cannot be said to be 'entitled' to prosecute an
appeal immediately. Two considerations suggest the E
contrary. First, though there is some early authority that a decision
by an applicant for recusal to proceed with the merits of the matter
instead of insisting on challenging the refusal to recuse by way of
appeal may constitute a waiver of the recusal objection,8 it is clear from subsequent authority that waiver in these circumstances occurs only if it is F unambiguous.9 The recusal point unless so abandoned therefore
2000 (3) SA p712
CAMERON AJ
remains good for a later appeal. There can A accordingly be no question of an 'entitlement' to proceed immediately.
[5] Second, a court that has dismissed a challenge to
its composition has ruled that it is properly constituted. In these
circumstances, the Labour Appeal Court had the power to regulate its own
proceedings, including the power to direct that the party whose B
challenge has been dismissed should proceed with the merits of the
matter before it. Generally considerations point strongly against
piecemeal appeals, though the matter remains overridingly one of
convenience.10
Whether a court that has dismissed a recusal application permits the
applicants to bring appeal proceedings first will depend on a range of
factors. These include the C 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 lies with
the court itself. The applicants were therefore not entitled to proceed
as of right with the application for leave to appeal. D
[6] After the application for leave to appeal was
lodged, the Court directed inquiries to the parties regarding the nature
of the issues and the means of disposing of them. After the parties'
responses were received, the application was set down for oral argument.
The parties were directed to deal not only with the application, but
with the merits of the appeal against the Judges' E refusal to recuse themselves. They did so. The substantive issues have accordingly been fully canvassed.
Background
[7] The individual applicants (to whom I refer as 'the dismissed workers') were dismissed on 2 August 1995 for F
participation in a march at the premises of the respondent (the
employer) on 21 June 1995. The dismissals took place after disciplinary
inquiries were held in terms of a procedural agreement concluded between
the first applicant (the union) and the employer after the march. The
events triggering the dismissals had their origin in bitter rivalry
between the union and the Food & Allied Workers' G
Union (FAWU). Notwithstanding the agreed procedure, the union organised
protest action against the dismissals of its members at the employer's
premises between 25 and 31 August 1995. A second group of 35 employees
was in consequence dismissed. Of these, 17 were already under final
written warning for participating in the 21 June march. H
[8] The two groups of dismissed employees brought
separate proceedings for unfair labour practice relief in the industrial
court. The first to reach trial were the 35 dismissed as a result of
the August protests. I refer to their matter, as did the Labour Appeal
Court, by the name of the first I
2000 (3) SA p713
CAMERON AJ
individual applicant amongst them, Mr Nomoyi. Of these, the industrial court confirmed the dismissal of the A 17 who were already under final written warning - but reinstated the remaining 18 who had not been so disciplined.
[9] Both employer and union took the Nomoyi matter on appeal. The Labour Appeal Court, per Conradie JA (Froneman DJP and Nicholson JA concurring) on 24 May 1999 dismissed the B
appeals of the 17 employees who had failed in the industrial court, but
allowed the employer's cross-appeal in respect of the 18 who had
succeeded.11 The upshot was that the Labour Appeal Court confirmed all 35 original dismissals. C
[10] Although the events that led to the present proceedings took place before those in Nomoyi,
the dismissed workers came to trial some five weeks later. The
industrial court refused their application for unfair labour practice
relief in its entirety. Their appeal was set down for hearing in the
Labour Appeal Court on 31 August 1999 before Conradie JA and Nicholson
JA and Mogoeng AJA. The D application for the recusal of Conradie JA and Nicholson JA was based on the Labour Appeal Court's judgment in Nomoyi.
Before considering the grounds of that application in more detail, it
is necessary to set out the basis on which the law requires that they be
assessed. E
The test for recusal
[11] In Sarfu, this Court formulated the proper approach to recusal as follows:
'The question is whether a reasonable, objective and informed F
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. The reasonableness of the apprehension must be
assessed in the light of the oath of office taken by the Judges to
administer justice without fear or favour; and their ability to carry
out that oath by reason of their training and experience. It must be G
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves. 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 H or will not be impartial.'12
[12] Some salient aspects of the judgment merit
re-emphasis in the present context. In formulating the test in the terms
quoted above, the Court observed that two considerations are built into
the test itself. The first is that in considering the application for
recusal, the court as a starting point presumes that I judicial officers are impartial in adjudicating
2000 (3) SA p714
CAMERON AJ
disputes.13 As later emerges from the A Sarfu
judgment, this in-built aspect entails two further consequences. On the
one hand, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality.14 On the other, the presumption is not easily dislodged. It requires 'cogent' or 'convincing' evidence to be rebutted.15
[13] The second in-built aspect of the test is that 'absolute B neutrality' is something of a chimera in the judicial context.16
This is because Judges are human. They are unavoidably the product of
their own life experiences and the perspective thus derived inevitably
and distinctively informs each Judge's performance of his or her
judicial duties.17 But colourless neutrality stands in C contrast to judicial impartiality18 - a distinction the Sarfu decision itself vividly illustrates.19
Impartiality is 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 is the keystone
of a civilised system of adjudication. Impartiality requires, in short,
'a mind open to persuasion by the evidence and the submissions of
counsel';20 and, in contrast to neutrality, D this is an absolute requirement in every judicial proceeding. The reason is that:
'A cornerstone of any fair and just
legal system is the impartial adjudication of disputes which come before
courts and other tribunals. . . . Nothing is more likely to impair
confidence in such proceedings, whether on the part of litigants or the
general public, E than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.'21
[14] The Court in Sarfu
further alluded to the apparently double requirement of reasonableness
that the application of the test imports. Not only must the person
apprehending bias be a F reasonable person, but the apprehension itself must in the circumstances be reasonable.22 This two-fold aspect finds reflection also in S v Roberts,23 decided shortly after Sarfu,
where the Supreme Court of Appeal required both that the apprehension
be that of the reasonable person in the position of the litigant and
that it be based on reasonable grounds.24 G
[15] It is no doubt possible to compact the 'double' aspect of reasonableness
2000 (3) SA p715
CAMERON AJ
inasmuch as the reasonable person should not be supposed A
to entertain unreasonable or ill-informed apprehensions. But the
two-fold emphasis does serve to underscore the weight of the burden
resting on a person alleging judicial bias or its appearance. As Cory J
stated in a related context on behalf of the Supreme Court of Canada:
'Regardless of the precise words
used to describe the test, the object of the different formulations is
to emphasise that the threshold B for a
finding of real or perceived bias is high. It is a finding that must be
carefully considered since it calls into question an element of judicial
integrity.'25
[16] The 'double' unreasonableness requirement also
highlights the fact that mere apprehensiveness on the part of a litigant
that a Judge will be biased - even a strongly and C
honestly felt anxiety - is not enough. The court must carefully
scrutinise the apprehension to determine whether it is to be regarded as
reasonable. In adjudging this, the court superimposes a normative
assessment on the litigant's anxieties. It attributes to the litigant's
apprehension a legal value and thereby decides whether it is such that
it should be countenanced in law. D
[17] The legal standard of reasonableness is that
expected of a person in the circumstances of the individual whose
conduct is being judged.26
The importance to recusal matters of this normative aspect cannot be
over-emphasised. In South Africa, adjudging the objective legal value to
be attached to a litigant's E apprehensions
about bias involves especially fraught considerations. This is because
the administration of justice, emerging as it has from 'the evils and
immorality of the old order'27
remains vulnerable to attacks on its legitimacy and integrity. Courts
considering recusal applications asserting a reasonable apprehension of
bias must accordingly give consideration to two contending factors. On F
the one hand, it is vital to the integrity of our courts and the
independence of Judges and magistrates that ill-founded and misdirected
challenges to the composition of a Bench be discouraged. On the other,
the courts' very vulnerability serves to underscore the pre-eminent
value to be placed on public confidence in impartial adjudication. In G
striking the correct balance, it is 'as wrong to yield to a tenuous or
frivolous objection' as it is 'to ignore an objection of substance'.28
The applicants' case for recusal
[18] To establish whether the applicants have crossed
the high threshold needed to satisfy the test for recusal, it is
necessary to H examine their case in some
detail. Discerning that case is not made simpler by the fact that one
counsel conducted their case in the industrial court; a second was
2000 (3) SA p716
CAMERON AJ
added to argue the recusal application; A and a third to argue the application for a certificate and for leave to appeal.
[19] The recusal application lodged in the Labour
Appeal Court in August 1999 was deposed to by Ms Holland, the paralegal
official employed by the union. Her affidavit bases the applicants' case
squarely and solely on the contention that the issues and a number of B the witnesses in the Nomoyi
and the present appeals are identical. The applicants assert that the
Labour Appeal Court's 'findings' on the issues and witnesses in Nomoyi
give rise to a reasonable apprehension of bias in the present matter.
In her affidavit Ms Holland states that there is a 'striking' similarity
in C the facts and issues in the two appeals,
and that since the present issues are 'identical to those issues in
respect of which the Judges have already made certain (crucial) findings
in the Nomoyi appeal', there is a reasonable apprehension of bias. She claims in particular that the Nomoyi Court made 'certain factual findings with regard to what happened on 21 June 1995' and that D
having regard to these findings the Judges would 'find it very
difficult to abandon the mental picture they formed' about the June
events in Nomoyi. She further states that the credibility of three witnesses has already been pronounced upon in Nomoyi.29
2000 (3) SA p717
CAMERON AJ
[20] It is the applicants' case as thus formulated that Nicholson JA addresses in his judgment refusing the recusal A application.30 He records that apart from the Labour Appeal Court's findings in Nomoyi, 'no other ground for recusal' was advanced.31
After detailed consideration of the issues at stake in the pending
appeal, derived from the applicants' written argument, Nicholson JA
concludes that though the judgment in Nomoyi dealt in certain instances with 'the same personalities', in fact the two appeals concern B 'different sets of events'.32
'The Nomoyi
judgment was delivered on appeal after a full ventilation of the
relevant issues in the industrial court. It dealt with different
employees and different events, though the events of 21 June 1995
(relevant for the [pending] appeal) formed part of the background.'33 C
[21] It is of some importance to assessing these findings by Nicholson JA that the applicants at no stage put the Nomoyi
Court's characterisation of the events of 21 June in issue. It was
indeed at all times common cause in regard to the events of 21 June, and
expressly conceded in the applicants' written argument in the recusal
application, that: D
'On Wednesday 21 June 1995,
approximately 200 of the first applicant's members employed by the
respondent toyi-toyied and marched through the respondent's factory,
causing production to come to a standstill.'
[22] In their written argument before the Labour Appeal Court E on the merits of the dismissal, the applicants moreover record their own version of the events of 21 June as follows:
'At 15:00 SACCAWU members, inclusive of some of the appellants as will appear infra,
assembled in the cloak room and started their march (toi-toi). Nkatu
testified that prior to this march starting, he contacted Anema [the
employer's factory manager] as F well as
Carlin [the general manager] to inform them that the march was going to
take place during tea time, which allegation is denied by Anema.
When the marchers were in the
corridor, three FAWU shop stewards approached the march from the
opposite direction. A confrontation ensued between the marchers and two
of the three FAWU shop stewards. Chaos ensued, during which ''. . . .
people started running G . . . ''. The marchers split and reassembled, having armed themselves with bin hooks and various other objects.
Thereafter a toi-toi started on the
premises. Production was stopped and workers sent home at approximately
16:30. SACCAWU officials arrived at the premises of the respondent and
negotiations ensued.'
(References to record omitted.) H
2000 (3) SA p718
CAMERON AJ
[23] It was against this background that Nicholson JA observed A that the management evidence regarding the June events, which formed the backdrop to the August protest that sparked the Nomoyi dismissals, was unchallenged in Nomoyi, and thus on well-established principles had to be accepted by the Nomoyi Court, except where it was so inherently improbable as to warrant rejection without controverting testimony. B
[24] In dismissing the application Nicholson JA
concluded that the applicants' arguments in respect of both the
'identity of issues' and the overlap in witnesses had to be rejected.
The adverse findings in Nomoyi against Ms Holland and the union were 'of very little relevance in the present appeal': C
'The first applicant and Ms Holland
play very little if any part in the events which unfolded on 21 June.
The actions were initiated by Nkatu [the first individual applicant] and
the officials of first applicant only made their appearance on the
scene later in the day. The officials of first applicant were not
eyewitnesses to the actions of the employees during the march. Any
positive credibility D findings with regard to
the respondent's witnesses concerning the events of 21 June were made
in the context of their evidence being [uncontroverted].'34
[25] It was no part of the applicants' case as originally advanced in the Labour Appeal Court that the language in which the Nomoyi Court expressed its conclusions was of such tenor, E
tone, spirit or robustness as to instil in reasonable litigants in the
position of the union and the dismissed workers a reasonable
apprehension that the Judges concerned would be biased against them.
[26] The application for a certificate in terms of
Rule 18, lodged in October 1999, in some measure appears to seek to
widen the F basis of the applicants' objection
to the two Judges. In it, the applicants put in issue the finding by
Nicholson JA that no other ground for recusal was advanced, insofar as
this implied 'that only a few selected grounds are and/or ought to be
recognised'. And for the first time they intimate that certain
'utterances' on the part of the Nomoyi Court 'may create a reasonable apprehension of G
bias'. However, the certificate application merely lists the utterances
in question. It does not specify in what way the statements might
reasonably elicit the apprehension relied upon about the Judges'
impartiality.
[27] The application for a certificate was argued before Conradie JA and Nicholson JA and Mogoeng AJA in November 1999. In a H
reserved judgment, Conradie JA (Nicholson JA and Mogoeng AJA
concurring) issued a negative certificate. It is apparent from the
judgment that the application was again argued on the basis that there
was an identity of issues and witnesses in the two appeals. Conradie JA
recorded that the applicants' new counsel, Mr Brassey, I
accepted that the issues the Labour Appeal Court was called upon to
decide in the pending appeal had been correctly identified by Nicholson
JA in the recusal judgment, and that Mr Brassey confined his argument on bias to only two of those issues.
2000 (3) SA p719
CAMERON AJ
These were whether there was proof that each individual employee took A
part in the march of 21 June or shared a common purpose with those who
did; and whether the disciplinary procedure envisaged in the mediation
agreement concluded after the events of 21 June was fair.35
[28] Conradie JA concluded that the suggested
inference that the Labour Appeal Court's previous criticism of the union
would dispose B the later Court to find that
the union had instigated the 21 June march, and thus that all the
marchers had shared a common purpose in the commission of dismissible
offences, was 'far-fetched'. The union was not alleged to have had
anything to do with the march, since it came onto the scene only later.
As for the fairness of the mediated agreement, Conradie JA held that
there had been no adverse credibility C
finding against Ms Holland; and that in any event the fairness of the
agreement would depend on the facts surrounding its conclusion, and not
on Ms Holland's reliability as a witness.
[29] In their application for leave to appeal to this
Court, the applicants add nothing to the grounds of recusal already
advanced, merely averring in their notice of motion that the Labour
Appeal D Court 'erred in fact and in law' in not consenting to the recusal.
[30] In arguing the matter before this Court, Mr Brassey
did not put in issue the accuracy of the Labour Appeal Court's
observations on the course of the proceedings before it in the recusal
and certificate proceedings. However, his written E
argument portended a substantial shift in the applicants' approach. For
the first time the applicants now focused on the Labour Appeal Court's
'pronouncements' in the Nomoyi
matter, identifying them as 'those that condemn the conduct, stance and
attitude of [the union], its officials and office-bearers during the
period leading up to the protest march' on 21 June. Mr F Brassey asserted that the union constituted the critical link between the Court's Nomoyi dicta
and the present matter. He argued that in determining whether the march
participants had a common purpose, 'the conduct of the union - the body
that links them together - is of considerable importance'. He also
contended that the Nomoyi Court's statements are important G
in determining the question of procedural fairness, since Ms Holland
claimed that she signed the mediation agreement under pressure.
[31] Mr Brassey did not suggest that the Labour Appeal Court's contested statements in Nomoyi were not justified on the evidence before it. Indeed, he intimated that his submissions did not derive from a reading of the Nomoyi H
record. Instead, he submitted that it was 'immaterial' whether the
Court's comments on the two questions in issue were justified or borne
out by the evidence: the critical issue was the impact of the statements
on the minds of reasonable persons in the position of the applicants.
This was the bite of his argument. The Labour I
2000 (3) SA p720
CAMERON AJ
Appeal Court in Nomoyi had made its findings in 'strong, A
emotive and indeed emphatic' language, and it was this that was said to
'permeate the judgment as a whole', thus giving rise to a reasonable
apprehension of bias.
[32] The high threshold a litigant must pass in a
trial alleged to involve the same issues or witnesses was usefully
formulated in B Livesey v The New South Wales Bar Association,36
where 'the central issues' in the case had already been determined by
the Judges whose recusal was sought, and they had expressed a 'strong
view' destructive of the credibility of a witness crucial to both
hearings. In finding that the Judges in question should have recused
themselves, the High Court of C Australia
stated as far as trial proceedings are concerned that a fair-minded
observer might entertain a reasonable apprehension of bias by reason of
prejudgment
'. . . if a Judge sits to hear a
case at first instance after he has, in a previous case, expressed clear
views either about a question of fact which constitutes a live and
significant issue in the subsequent case or about the credit of a
witness whose evidence is of significance on such a question of fact'.37 D
[33] As will appear below, this test cannot be applied
without reservation to appellate proceedings, where the presumption of
impartiality has an added practical force. Assuming, however, in favour
of the applicants that the test for trial proceedings is applicable, the
question is whether there is 'a live and significant issue' in E
the pending appeal on which (or about the credibility of a witness
significant to which) the Judges in question expressed 'clear views' in Nomoyi.
The answer must, in my view, be No. The logic of the Labour Appeal
Court's ruling that the issues in the two cases are not identical, and
that credibility findings directly adverse to the union were not made in
Nomoyi, is difficult to assail and Mr Brassey made only a circumspect attempt to do so. The march F of 21 June was not in issue before the Nomoyi
Court, and the background evidence management led in respect of the
earlier events was in any event not contested by the union. The
applicants did not at any stage suggest that the background evidence
placed before the Nomoyi Court was so inherently improbable as to warrant G rejection without controverting testimony. In these circumstances, the Nomoyi
Court's recital of the uncontested evidence does not constitute the
expression of 'clear views' on the reliability of that evidence and has
no bearing on how it will evaluate any contested evidence on the points
in question in the present appeal. H
[34] There is a further consideration. An unfair
labour practice determination involves two inquiries. The first concerns
whether the employees concerned are guilty of misconduct. The second
arises only if they are. In that case, the court must determine whether
the sanction the employer imposed was fair.38 The distinction has a bearing on the applicants' case. Even if the Nomoyi I Court's findings addressed the
2000 (3) SA p721
CAMERON AJ
question whether the employees misconducted themselves in the course A
of the 21 June march, this was as already indicated on the basis of
uncontroverted evidence. The pending appeal offers the dismissed workers
a still untrammelled opportunity to explain their conduct in relation
to the Court's duty to determine whether the sanction of dismissal for
that conduct was appropriate. In that critical respect, the Nomoyi Court expressed no views relevant to the present appeal. B
[35] The reasons for the union's decision during the Nomoyi trial not to dispute the 'background' evidence led in Nomoyi are not at present relevant. What is of importance is that the Nomoyi
Court was not required nor asked to pronounce upon the merits or
demerits of the 21 June march, nor was the justification for the
consequent dismissals in issue or argued C
before it. The Court criticised Ms Holland's conduct in relation to the
August protests, but it expressed no views - let alone 'clear views' -
about her credibility as a witness. The sole question the Nomoyi
Court had to decide was the justification for the dismissals in
consequence of the August protests. A reasonable litigant, properly
informed, would therefore attribute appreciably less D significance to the Court's recounting of the background evidence than if it reflected contested terrain.
[36] Counsel for the employer relied on the decision of the Appellate Division in R v T,39 in which it was held that 'there is no rule in South Africa which lays E
down that a Judge in cases other than appeals from his judgments is
disqualified from sitting in a case merely because in the course of his
judicial duties he has previously expressed an opinion in that case'.40 In their argument they submitted that R v T had been approved in S v Somciza41 and had been cited in the Sarfu judgment.42 In R v T a magistrate who, on uncontested evidence regarding F
a charge involving a sexual offence had in previous criminal
proceedings found one party to the act guilty, thereafter on contested
evidence in a second trial, where the prosecution called the previous
accused to testify, convicted the other party to the act. It was
contended that the magistrate ought to have recused himself from the
second trial and that his failure to do so constituted an irregularity G vitiating the conviction. The Appellate Division dismissed this contention.
[37] The Court in Sarfu cited R v T
as authority for the proposition that Canadian cases dealing with the
presumption that a judicial officer will act impartially in any matter
that he or she is called upon to decide were consistent with our H law.43 It was not necessary in Sarfu to consider the application of that principle to the facts in R v T, and Sarfu
is not authority for the proposition that the failure of the magistrate
to recuse himself in such circumstances would be consistent with the
substantive
2000 (3) SA p722
CAMERON AJ
elements of the constitutional right to a fair trial.44 In A any event, for R v T
still to constitute good law today it would have to survive the test
set out above, namely whether the magistrate had already in the earlier
trial decided an issue that was 'live and significant' in the second
trial. I doubt whether it does.
[38] R v T was distinguished in S v Somciza,45 where the Appellate B
Division held that a magistrate whose decision convicting an accused
had been set aside on appeal should not preside at a resumed hearing.
Although the accused had not testified in the first proceedings, the
magistrate in convicting him had made 'strong credibility findings' in
respect of all the State witnesses in which he had accepted the
prosecution evidence. Hence: C
'However dispassionately the
magistrate might feel he would be able, because of his judicial
training, to weigh up the evidence afresh once he has heard the
appellant's evidence, the appellant is, understandably, unlikely to feel
complacent about his prospects of receiving a fair trial before that D magistrate.'46
The basis on which the Court distinguished R v T was that the magistrate there was trying a different accused.47
[39] The applicants' case is, however, very different from that in S v Somciza. The Labour Appeal Court is not called upon to conduct a trial. It is hearing an appeal and has to determine E
whether the findings made by the industrial court on the evidence
before it were wrong, and, if they are not, whether the sanction imposed
by the industrial court should be varied on appeal.
[40] Apart from Sarfu48 (where apprehended bias was in issue) and the Pinochet F case49
(which involved a technical 'interest' on the part of one of the
Judges), I am not aware of any decision involving the recusal of members
of appellate tribunals, where it seems plain that the presumption of
judicial impartiality has an added practical force.50 A trial is a dynamic process where the issues develop under the supervision of the
2000 (3) SA p723
CAMERON AJ
presiding judicial officer. Oral testimony is led. Pleadings may be A
amended as the issues take shape. The nature of the process imposes
duties of evaluation on the Judge or magistrate, who is required to
gauge the personal attributes of the witnesses who are called and to
hold an even hand between the contenders. A claim that 'a live and
significant issue' relevant to the proceedings has already been decided
by the trial Judge could well excite apprehension that the Judge, in
shaping B the issues as the trial proceeds, might not be able to show the requisite dispassion and open-mindedness.
[41] An appellate Court, by contrast, normally
evaluates a written record. The issues of both fact and law have usually
long been crystallised and the Court has the benefit of advance written
argument C in which the parties' contentions
in regard to those issues are set out. The collegial nature of an
appellate Bench moreover reduces the leeway within which the personal
attributes, traits and dispositions of each of the Judges operate. In
addition, appellate Judges, being entrusted with a higher level of
judicial office, are generally more experienced in the craft of judging.
D
[42] For these reasons the presumption of judicial
impartiality must generally apply with added force in an appellate
Court, where the law rightly supposes that the reasonable litigant will
have knowledge of the institutional aspects that operate to guarantee a
fair E appreciation of his or her appeal.
[43] What is undeniable, however, is that the June
events form a continuous thread with the August protest, which they
sparked. It is in this context that the tone of the Nomoyi Court's comments on the June events attain significance, and in this Court considerable F
time was spent during oral argument in analysing the meaning and the
likely impact on the reasonable litigant in the applicants' position of
certain observations Conradie JA made in Nomoyi.
One was his comment, in allowing the employer's cross-appeal, that
those employees already under final written warning for the march of 21
June 1995 who were dismissed for the August 1995 protest 'doubly
deserved to be dismissed'.51 Conradie JA also G
referred to the 'confrontational attitude' displayed throughout not
only by the August demonstrators, but 'by their leaders and by SACCAWU's
officials';52
while in determining the true character of the August demonstrations,
he held that the union was 'determined to build upon the image of the
defiant union it had begun to establish in June of that year'.53 H
[44] The case as advanced by Mr Brassey
in this Court is not, however, the case argued before the Labour Appeal
Court. This, in my view, places two substantial obstacles in the path
of the applicants. First, if an applicant is to advance 'cogent' or
'convincing' evidence of reasonably apprehended bias, the least that I can be expected is that he or she will set
2000 (3) SA p724
CAMERON AJ
out the case to that effect unambiguously in the founding papers. This the applicants did not begin A
to do. Nowhere in the papers do they complain that, having been
informed that the Labour Appeal Court had branded their union 'defiant'
and had declared that the Nomoyi
workers under final written warning for the June march 'doubly'
deserved dismissal, they feared that this language betokened a
partiality on the part of B the Judges against
their own case. Instead, Ms Holland put her case solely on the basis
that the issues in the two cases were identical; an argument which in my
view the Labour Appeal Court correctly rejected, and which Mr Brassey but faintly contested.
[45] The shift in the applicants' case creates a further C
problem. The Judges in the Labour Appeal Court were not only deprived
of the benefit of the argument advanced before us. They were denied any
opportunity of commenting upon it. The statement that the workers
already under final written warning 'doubly deserved' to be dismissed in
August, for instance, may have a meaning very distant from that
suggested at the hearing. The phrase, as it was said, might instill D
apprehension in the applicants that the August protesters deserved
dismissal also for the June march. What it may in fact mean is that
Conradie JA was of the view merely that participation in the dismissible
misconduct of the August protests on its own warranted dismissal, but
that those workers who were already under disciplinary E
admonition for a previous infraction - regardless of its character -
'doubly deserved' dismissal. Conradie JA and Nicholson JA had the duty,
in the first instance, of determining whether any apprehension about
that comment would have been reasonable, but were never given the
opportunity to do so.
[46] In similar vein, Mr Brassey's contention that F
the allusion by Conradie JA to the defiance evinced by the union from
June included the events of 21 June loses a great deal of its persuasive
force when the common cause facts are borne in mind. These are that
there is no evidence that the union as an organisation was involved in
the march of 21 June. Its involvement seems to have commenced only when
Ms Holland arrived on the scene late in the day G
after the events were largely over. The union's active involvement
commenced only the following day, 22 June, when it intervened by
refusing to sign a peace agreement brokered between the parent union,
Cosatu, and the employer, which FAWU signed. This, to say the least,
offers room for the interpretation that Conradie JA's comment is quite H unconnected with the march of the preceding day, the sole event in issue in the present appeal.
[47] But because the case was not argued on that basis
before the Labour Appeal Court, both Conradie JA and Nicholson JA were
deprived of the opportunity to determine, as would have been required of
them, whether a reasonable litigant, well informed, and excluding I
incorrect facts from his or her apprehension, might reasonably have
concluded that the allusion to defiance embraced events on 21 June in
which the union did not participate.
[48] It is not necessary for this Court to determine
in the case of any of these comments which meaning is appropriate, or
whether either is J
2000 (3) SA p725
CAMERON AJ
'reasonable', since that was not the case the union
made out in its founding affidavit in the recusal application, nor
was it the case put before the Labour Appeal Court in the proceedings
from which appeal is now sought to be brought. In my respectful view,
the considerations set out by my Colleagues Mokgoro J and Sachs J in
their dissent do not meet this point.
[49] On the assumption that the applicants are granted
leave to appeal, this Court would be asked to reverse a judgment the
findings of which are not persuasively assailed before us, which was
directed to a case materially different from the main substance of that
urged before us and to which none of the litigants alleged to apprehend
bias attested. This does not present the 'cogent' and 'convincing' C
evidence required in cases of bias or apprehended bias and accordingly,
in my view, does not pass the high threshold demanded in such cases.
Costs, disposition and order
[50] Although I am of the view that the applicants' recusal D
application was rightly rejected in the Labour Appeal Court, I do not
consider their complaints to have so little substance that leave to
appeal would not have been granted in this Court. The appropriate order
is therefore one granting the applicants leave to appeal, but dismissing
the appeal. E
[51] The employer in successfully resisting the
recusal application in the Court below was awarded its costs. In the
Labour Courts it is an established principle that the usual rule that
costs follow the event does not apply, since where there is a
long-standing and continuing labour and employment relationship such
orders might not be in the best interests of that relationship.54 F
This principle, however, has less force when a point such as recusal is
taken, which does not derive from the employment association. In this
Court the general principle has been established that parties should not
be discouraged from asserting and vindicating their fundamental
constitutional rights and freedoms as against the G State.55 This principle does not apply to all private litigants unsuccessfully asserting constitutional claims against the State.56 This Court has, for instance, ordered such litigants to pay costs in the absence
2000 (3) SA p726
CAMERON AJ
of good faith,57 or where the litigant mulcted in costs A was apparently pursuing private commercial interests.58
[52] In Transvaal Agricultural Union v Minister of Land Affairs and Another,59
this Court observed that there may be good reasons why a losing
litigant who raises a substantial constitutional issue in proceedings
before it ought not to B be ordered to pay the
costs of the successful party. In my view, the present is such a case.
While the union has failed in its appeal, the Labour Appeal Court itself
permitted it to proceed with the recusal point while the main appeal
was still pending. The union's conduct in persisting with that point is
in the circumstances understandable and the point it raised, though
ultimately unsuccessful, was not without C substance. I am of the view that in these circumstances the fairest would be to make no order as to costs.
[53] There is accordingly an order as follows:
(1) The application for leave to appeal is granted.
(2) The appeal is dismissed. D
(3) There is no order as to costs.
Chaskalson P, Langa DP, Goldstone J, Kriegler J,
Madala J, Ngcobo J, O'Regan J and Yacoob J concurred in the judgment of
Cameron AJ.
Mokgoro J and Sachs J:
E [54] Cameron AJ has set
out the facts with meticulous precision and enunciated the legal issues
in an elegant and persuasive manner. We agree in broad terms with the
way in which he has outlined the test for recusal, but believe that the
test as formulated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others60 requires that more F
weight be given than he does to the perception of the lay litigant and
her or his right to a fair hearing. We accordingly note our dissent from
his judgment.
[55] The test for recusal places a heavy burden of persuasion on the person alleging judicial bias or its appearance.61 But despite the presumption in G favour of Judges' impartiality, the test requires an assessment of the litigant's perception of impartiality.
The litigant's perception must be objectively reasonable, however:
'The law does not seek . . . to
measure the amount of [the judicial officer's] interest. I venture to
suggest that the matter stands no differently with regard to the
apprehension of bias by a lay H litigant.
Provided the suspicion of partiality is one which might reasonably be
entertained by a lay litigant a reviewing Court cannot, so I consider,
be called upon to measure in a nice balance the precise
2000 (3) SA p727
MOKGORO J and SACHS J
extent of the apparent risk. If suspicion is reasonably apprehended, A then that is an end to the matter.'62
[56] The issue in this case is not whether we, as
Judges in this Court, have a reasonable apprehension that the two Judges
concerned in the Labour Appeal Court would fail to handle the appeal
before them with appropriate professionalism and impartiality. Nor is
the issue whether, in fact, the bias exists.63 B
We are fully confident that, given their training and experience, the
Judges concerned would be able to set aside any knowledge gained in the
course of their hearing of the first matter and disabuse themselves of
any opinions they may have formed. The fact that it is an appeal to be
decided purely on the record strengthens our conviction in this regard.
Indeed, the Labour Appeal Court by its very nature hears matters where C
the same parties appear again and again as litigants and where disputes
frequently have their antecedents in matters previously litigated upon.
[57] A Judge called upon to decide whether or not a
disqualifying apprehension of bias exists, however, should consider the
apprehension of the lay litigant alleging bias and the reasonableness D of that apprehension based on the actual circumstances of the case.64
As Cameron AJ points out, the lay litigant is assumed to be
well-informed and equipped with the correct facts. But the lay litigant
should not be expected to have the understanding of a trained lawyer and
to appreciate the implications of E the
different nature of the appeal process. In both cases, it will be the
Judges who decide and who must have open minds. In all circumstances,
the test emphasises reasonableness in light of the true facts, not the
technical legal nuances of the particular case.65
It is our contention that the reasonableness of the apprehension also
requires that a Judge assess the lay litigant in her or his context. The
profile of the lay litigant F in the present
matter is that of a factory worker dismissed for alleged misconduct and
participation in an unlawful work stoppage, and who is a member of the
minority union in question.
[58] The problem in the present case relates to the peculiar proximity of the matters in issue, which relate to two closely G
interconnected episodes leading to two sets of interrelated dismissals.
The most obvious overlap is the fact that the applicants are members of
the same union responsible for the actions that were found
inappropriate in the Nomoyi appeal. The Nomoyi and Nkatu dismissals directly relate to demonstrations that took place on separate dates (Nkatu: 21 June 1995; Nomoyi: 25 - 31 August 1995); both matters, however, H concern the actions of the SACCAWU members on 21 June 1995. In fact 17 applicants in the Nomoyi matter
2000 (3) SA p728
MOKGORO J and SACHS J
were given disciplinary warnings in terms of a mediation agreement arising from A the events of 21 June. Those warnings were relevant to the final decision in Nomoyi.66
[59] Indeed the events and findings appear to overlap
so closely that the applicants fear that they will not get the 'fair
public hearing before a court or, where appropriate, another independent
and B impartial tribunal or forum',
guaranteed by s 34 of the Constitution of the Republic of South Africa
Act 108 of 1996. We believe that any litigant in the position of the
applicants would entertain such apprehension, and that in the very
special circumstances of the case, where forceful pronouncements by the
Judges concerned have already been C made on
crucial matters in issue, they would not do so unreasonably. We should
stress that the overlapping issues in the new appeal relate not only to
questions of fact - many of which might be uncontroversial - but to
normative evaluations of the conduct concerned that must inevitably
affect the remedy to be applied.
[60] There is nothing in the forceful language used by
the Judges in the earlier matter that suggests bias in itself against
the D applicants. On the contrary, the
comments in the judgment are congruent with the facts as found to be
proved and are clearly intended to indicate which forms of worker
conduct are consistent with industrial law principles and which are not.
In our view, it is quite appropriate for judicial officers to comment
in forthright terms on matters that have factually been established. Yet
it is the very strength and E aptness of
these findings and observations that give rise to the difficulty in the
present matter. They related not just to the behaviour of the SACCAWU
members in general during the period concerned, but to an evaluation of
conduct of central relevance to the present case. Such evaluative
characterisation of the member's conduct F
would, if followed in the present matter, be largely determinative of
the appeal. It deals precisely with the activities which are said to
justify and require dismissal in the present matter.
[61] It should be borne in mind that what is in issue
in this recusal application is not the close technical reasoning that
might be appropriate in a criminal matter, where questions of splitting
of G charges or autrefois acquit are considered, or, more generally, in relation to questions of res judicata.
Rather, it concerns the subjectively-felt and objectively-viewed state
of mind of the SACCAWU workers. This is the kind of case where we
believe it should be especially important to avoid putting form above
substance. The heart of the matter before us does not concern the
precise manner H in which the applicants'
lawyers presented their complaint at different stages. It was clear from
the beginning that the substantive complaint of the applicants was that
they would not get a fair hearing.
[62] We are aware of the need to prevent litigants from being I
able freely to use recusal applications to secure a Bench that they
regard as more likely to favour them. Perceptions of bias or
predisposition, no matter
2000 (3) SA p729
MOKGORO J and SACHS J
how strongly entertained, should not pass the threshold for requiring recusal merely because such perceptions, even A
if accurate, relate to a consistent judicial 'track record' in similar
matters or a broad propensity to view issues in a certain way. Recusal
applications should never be countenanced as a pretext for
Judge-shopping. Where, however, the judicial officer has already
pronounced on an actual, live, concrete and highly relevant issue in
question, the position is different. In some cases such pronouncement B could relate to the credibility of a key witness, concerning the very issues in dispute.67
In other cases, such as the present, the judicial officer might have
expressed a judgment on a significant feature of the new matter, not by
way of articulating a general philosophical position, but by way of
making a finding on the very matter in issue. C
[63] In their judgment in the Nomoyi
matter, the Judges devoted paras [2] through [11] to narrating the
events of June, which in fact constitute the substance of the present
appeal. These events accounted for a third of their judgment, and
clearly were D included as part of an integral
and continuous process of action and reaction which culminated in the
precise episodes which led to the dismissals in that matter. Put simply,
the behaviour of the SACCAWU members in June was seen as directly
relevant to an appreciation of their conduct in August. This judicially
perceived overlap between the events of June and August is strengthened
by the comment that 'it was E in this atmosphere of alarm and despondency [after the June events] that the next mass demonstration occurred'.68
[64] It was this 'next mass demonstration' which formed the basis for the dismissals and the appeals in the Nomoyi
matter. Further on, the learned Judges go on to state that by
disrupting the respondent's business, SACCAWU sought to reveal itself F
as the more powerful and militant union whose demands could only be
rejected at the respondent's peril. 'It was, it seems to me, determined
to build upon the image of the defiant union it had begun to establish in June of that year.'69 (Our emphasis.) The judgment also says: G
'Practically none of the employees
said a word in his or her defence at the disciplinary enquiries. It is
improbable that this could have been by chance. It is more likely to
have been a strategy agreed upon beforehand. What the purpose of it was
is not easy to say; but it is easy to say that it manifested an attitude
of a confrontational sullenness. This confrontational attitude is
really not out of keeping with that displayed throughout by the demonstrators, by H their leaders and by SACCAWU's officials.'70
(Our emphasis.)
[65] From the above paragraphs one may reasonably
infer that the learned Judge had come to the conclusion that the SACCAWU
members I
2000 (3) SA p730
MOKGORO J and SACHS J
and officials had, already in June, deliberately embarked upon a course of A
inappropriate, sullen and confrontational defiance. This inference is
reinforced by a later statement made in support of a conclusion that the
decision of the industrial court to reinstate 17 of the dismissed
workers had been incorrect. The relevant passage reads:
'The only basis for distinguishing between them and the other B
appellants was that they had previously received final written warnings
for having taken part in the industrial unrest of 21 June 1995. In
coming to this conclusion I believe that the industrial court seriously
misjudged the gravity of their misdemeanour. As I said earlier, they
caused the respondent extensive and long-lasting damage. They deserved
to be dismissed. That the other individual appellants doubly deserved to be dismissed did not mean that they should have escaped the same fate.'71 C
(Our emphasis.)
The reference to the fact that those who had received a
warning after the 21 June incidents 'doubly deserved' to be dismissed,
could readily be interpreted as involving a strong negative
characterisation of their behaviour on 21 June. In our minds, the fact
that, had D they been given the chance, the
learned Judges might have explained that these words were actually
intended to mean something else, does not alter the impression that the
words could leave on any litigant in the shoes of the applicants. At the
very least, the words connoted strong condemnation of the appellant's
behaviour in the June period. E At worst, the
words carried with them a conclusion on the very facts in issue in the
present matter. They should also be read in conjunction with the robust
description given of the actual events on 21 June.72
[66] It is not as though the learned Judges were on
trial. The cogent evidence calling for recusal lay in the words of the
judgment in F the Nomoyi
matter which, as we have said, appear to have been totally merited on
the evidence as established. In our view, it would be invidious to ask a
judicial officer to explain precisely what she or he meant in a
judgment. The test should rather be whether any litigant in the shoes of
the applicants would, from reading the G
judgment as a whole, including words of particular pertinence, come to a
reasonably grounded conclusion that a prejudgment had been made by
members of the Court, on the very question of whether their conduct
merited dismissal or not.
[67] The important question is not what had to be decided in H Nomoyi, but what in fact was decided. Indeed, the very fact that the above findings were made on matters collateral to the issues in Nomoyi
would go to strengthen rather than weaken an apprehension of moral
prejudgment. The narration characterises the conduct of the applicants
with such intensity that even if the bare facts in issue might largely
have been
2000 (3) SA p731
MOKGORO J and SACHS J
common cause, the critical question, whether the conduct merited dismissal or some lesser penalty, A might appear to have been effectively predetermined.73
[68] We do not say that the learned Judges were wrong
to have made these stringent observations, which, we repeat, may have
been fully merited. What we do think is that it would be
constitutionally B impermissible for them now
to sit in the appeal, having already pronounced as they have done. The
basic issues at stake relate in their substance to matters on which they
have already expressed firm opinions, namely, whether the litigants
concerned behaved in a defiant and confrontational manner which so
disrupted production and the work environment as to merit and require
their dismissal. C
[69] We have given careful attention to the
comprehensive manner in which Cameron AJ has set out the facts, but on
balance, we remain of the view that it would not only be wise for fresh
judicial minds to be brought to bear on the case, but that it is also
constitutionally necessary. D
[70] We agree with Cameron AJ's statement that R v T74
would be unlikely today to constitute good law. The facts of that case
(which serve as a reminder of the extent to which the courts in the
pre-constitutional era were used to enforce unjust and shameful laws)
were, in the language used, as follows: a non-European woman was charged
before a magistrate with E permitting a
European male to have carnal intercourse with her. The magistrate
convicted the female, and thereafter, when the man was charged before
him in a separate trial arising from the same facts in which the woman
was a witness, the magistrate refused to recuse himself. The Appellate
Division held that it could not reasonably be inferred that there was a
real likelihood that the presiding magistrate F
was in fact biased and sustained the decision by the magistrate. Even
if one accepts the high threshold laid down by the Appellate Division
regarding the cogency of evidence needed to justify recusal, we find the
result surprising. In our view, the Appellate Division's decision in S v Somciza75 is more in accord with our present day law. In that matter the Appellate Division, G
although in a different context, held that however dispassionate a
magistrate might feel on re-hearing a case where his decision had been
overturned on appeal, the accused was, 'understandably, unlikely to feel
complacent about his prospects of receiving a fair trial'. H
2000 (3) SA p732
[71] Ordinary people would say that a Judge should not
sit in a matter where she or he has already pronounced on the live and
central A facts in issue. The saying that not
only must justice be done, it must be seen to be done, is a well worn
one, and for good reason. Much of our work involves continuing defence
of such simple verities. We believe that the present is a case in point,
and would uphold the appeal. B
Applicants' Attorneys: Preller Maimane Inc. Respondent's Attorneys: Findlay & Tait Inc. D
Footnote - 1
1SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) (2000) 21 ILJ 330 (LAC) (Nicholson JA; Conradie JA and Mogoeng AJA concurring).
1SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) (2000) 21 ILJ 330 (LAC) (Nicholson JA; Conradie JA and Mogoeng AJA concurring).
Footnote - 2
2 Rule
18(2) provides that a litigant wishing to appeal directly to the
Constitutional Court from any Court other than the Supreme Court of
Appeal must apply to the Court in question for a certificate 'that it is
in the interests of justice for the matter to be brought directly to
the Constitutional Court and that there is reason to believe that the
Court may give leave to the appellant to note an appeal'. The criteria
for the grant of a positive certificate, set out in Rule 18(6)(a),
are that 'the constitutional matter is one of substance on which a
ruling by the Court is desirable'; that the evidence 'is sufficient to
enable the Court to deal with and dispose of the matter without having
to refer the case back to the Court concerned for further evidence'; and
that 'there is a reasonable prospect that the Court will reverse or
materially alter the judgment if permission to bring the appeal is
given'. In terms of Rule 18(6)(b),
the certificate 'shall also indicate whether, in the opinion of the
Court concerned, it is in the interests of justice for the appeal to be
brought directly to the Constitutional Court'.
2 Rule
18(2) provides that a litigant wishing to appeal directly to the
Constitutional Court from any Court other than the Supreme Court of
Appeal must apply to the Court in question for a certificate 'that it is
in the interests of justice for the matter to be brought directly to
the Constitutional Court and that there is reason to believe that the
Court may give leave to the appellant to note an appeal'. The criteria
for the grant of a positive certificate, set out in Rule 18(6)(a),
are that 'the constitutional matter is one of substance on which a
ruling by the Court is desirable'; that the evidence 'is sufficient to
enable the Court to deal with and dispose of the matter without having
to refer the case back to the Court concerned for further evidence'; and
that 'there is a reasonable prospect that the Court will reverse or
materially alter the judgment if permission to bring the appeal is
given'. In terms of Rule 18(6)(b),
the certificate 'shall also indicate whether, in the opinion of the
Court concerned, it is in the interests of justice for the appeal to be
brought directly to the Constitutional Court'.
Footnote - 3
31999 (4) SA 147 (CC) (1999 (7) BCLR 725).
31999 (4) SA 147 (CC) (1999 (7) BCLR 725).
Footnote - 4
4Id at para [30].
4Id at para [30].
Footnote - 5
5 In terms of s 167(3)(a),
the Constitutional Court is 'the highest Court in all constitutional
matters'. Section 167(6) provides that national legislation or the Rules
of this Court 'must allow a person' when it is in the interests of
justice and with this Court's leave (a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other Court.
5 In terms of s 167(3)(a),
the Constitutional Court is 'the highest Court in all constitutional
matters'. Section 167(6) provides that national legislation or the Rules
of this Court 'must allow a person' when it is in the interests of
justice and with this Court's leave (a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other Court.
Footnote - 6
6 Schedule 7, item 22(6) of the Labour Relations Act 66 of 1995 provides in part that: 'Despite
the provisions of any other law but subject to the Constitution, no
appeal will lie against any judgment or order given or made by the
Labour Appeal Court. . . .'
6 Schedule 7, item 22(6) of the Labour Relations Act 66 of 1995 provides in part that: 'Despite
the provisions of any other law but subject to the Constitution, no
appeal will lie against any judgment or order given or made by the
Labour Appeal Court. . . .'
Footnote - 7
7 In terms of s 23(1) of the Constitution, '(e)veryone has the right to fair labour practices'. Subsections 23(2) - (6) set out associated rights. See Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) at 94H - 95A, paras [22] - [23].
7 In terms of s 23(1) of the Constitution, '(e)veryone has the right to fair labour practices'. Subsections 23(2) - (6) set out associated rights. See Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) at 94H - 95A, paras [22] - [23].
Footnote - 8
8Muller and Cloete v Lady Grey Divisional Council 1929 EDL 307 at 313 - 16.
8Muller and Cloete v Lady Grey Divisional Council 1929 EDL 307 at 313 - 16.
Footnote - 9
9Liebenberg and Others v Brakpan Liquor Licensing Board and Another 1944 WLD 52 at 59; Snyman and Others v Liquor Licensing Court, Windhoek and Another (2)1963 (1) SA 460 (SWA) at 462H and 465E - F. In Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 All ER 65 (CA) at para 15, the Court of Appeal of England and Wales put it thus: '(A)
party with an irresistible right to object to a Judge hearing or
continuing to hear a case may, as in other cases . . . , waive his right
to object. It is however clear that any waiver must be clear and
unequivocal, and made with full knowledge of all the facts relevant to
the decision whether to waive or not.'.
9Liebenberg and Others v Brakpan Liquor Licensing Board and Another 1944 WLD 52 at 59; Snyman and Others v Liquor Licensing Court, Windhoek and Another (2)1963 (1) SA 460 (SWA) at 462H and 465E - F. In Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 All ER 65 (CA) at para 15, the Court of Appeal of England and Wales put it thus: '(A)
party with an irresistible right to object to a Judge hearing or
continuing to hear a case may, as in other cases . . . , waive his right
to object. It is however clear that any waiver must be clear and
unequivocal, and made with full knowledge of all the facts relevant to
the decision whether to waive or not.'.
Footnote - 10
10S v Malinde and Others1990 (1) SA 57 (A) at 67D - 68G and the authorities cited there.
10S v Malinde and Others1990 (1) SA 57 (A) at 67D - 68G and the authorities cited there.
Footnote - 11
11SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) ([1999] 8 BLLR 741).
11SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) ([1999] 8 BLLR 741).
Footnote - 12
12 Above n 3 at para [48].
12 Above n 3 at para [48].
Footnote - 13
13Id at paras [40] - [41].
13Id at paras [40] - [41].
Footnote - 14
14Id at paras [45] and [48].
14Id at paras [45] and [48].
Footnote - 15
15Id at para [40].
15Id at para [40].
Footnote - 16
16Id at para [42].
16Id at para [42].
Footnote - 17
17Id.
17Id.
Footnote - 18
18R v S (RD) (1997) 118 CCC (3d) 353 (SCC), per l'Heureux-Dubé J and McLachlin J at paras [35] - [84] .
18R v S (RD) (1997) 118 CCC (3d) 353 (SCC), per l'Heureux-Dubé J and McLachlin J at paras [35] - [84] .
Footnote - 19
19 Above n 3 at paras [74] - [75].
19 Above n 3 at paras [74] - [75].
Footnote - 20
20Id at para [48].
20Id at para [48].
Footnote - 21
21Id at para [35].
21Id at para [35].
Footnote - 22
22Id at para [45].
22Id at para [45].
Footnote - 23
231999 (4) SA 915 (SCA) (1999 (2) SACR 243) at para [32], per Howie JA.
231999 (4) SA 915 (SCA) (1999 (2) SACR 243) at para [32], per Howie JA.
Footnote - 24
24 The Supreme Court of Appeal alluded to a 'suspicion' of bias, but in Sarfu
(n 3 above at para [38]) this Court, in common with the House of Lords,
the High Court of Australia and the Supreme Court of Canada, expressly
preferred the term 'apprehension' of bias, because of the 'in
appropriate connotations' that might flow from 'suspicion'.
24 The Supreme Court of Appeal alluded to a 'suspicion' of bias, but in Sarfu
(n 3 above at para [38]) this Court, in common with the House of Lords,
the High Court of Australia and the Supreme Court of Canada, expressly
preferred the term 'apprehension' of bias, because of the 'in
appropriate connotations' that might flow from 'suspicion'.
Footnote - 25
25R v S (RD) above n 18 at para [113].
25R v S (RD) above n 18 at para [113].
Footnote - 26
26 In S v Manamela and Another (Director-General of Justice Intervening)2000 (3) SA 1 (CC)
(2000 (1) SACR 414; 2000 (5) BCLR 491) both the majority and minority
judgments (at paras [20] and [74] - [77]) considered the practical
application of the concept of reasonableness in the context of the
criminal law.
26 In S v Manamela and Another (Director-General of Justice Intervening)2000 (3) SA 1 (CC)
(2000 (1) SACR 414; 2000 (5) BCLR 491) both the majority and minority
judgments (at paras [20] and [74] - [77]) considered the practical
application of the concept of reasonableness in the context of the
criminal law.
Footnote - 27
27Sarfu above n 3 at para [74].
27Sarfu above n 3 at para [74].
Footnote - 28
28Locabail above n 9 at para [21]. The English courts continue to apply the test of 'real danger (or possibility) of bias': Locabail at para [16].
28Locabail above n 9 at para [21]. The English courts continue to apply the test of 'real danger (or possibility) of bias': Locabail at para [16].
Footnote - 29
29 In her affidavit in the application, Ms Holland states: '3. . . . Essentially, the key issues which this Court will be dealing with in the Nkatu
appeal appear to be firstly, the conduct of the individual applicants
on 21 June 1995 at the respondents' premises; secondly, my conduct (as
the union official concerned) and that of the first applicant itself in
the aftermath of what happened on 21 June 1995; thirdly, the mediation
agreement reached between the respondent and the first applicant;
fourthly, the credibility of certain key witnesses Mark Anema (the
factory manager), Nkatu, Catto and me; and fifthly, the background
events which occurred earlier in the year (1995) dealing with the union
first establishing its presence at the respondent's Woodstock factory. 4. The Nomoyi appeal dealt with the conduct, inter alia,
of the appellants during a protest demonstration outside the
respondent's premises on 25, 29 and 31 August 1995. I respectfully
submit that apart from the fact that the alleged incidents of misconduct
in the Nkatu matter took place on 21 June 1995 (and that the alleged incidents of misconduct which arose in the Nomoyi
matter took place on 25, 29 and 31 August 1995) the issues which I have
identified above as being the key issues to be decided by this Court in
the Nkatu appeal are identical to those issues in respect of which the Judges have already made certain (crucial) findings in the Nomoyi appeal. 5.
This is an application for the recusal of the Judges on the grounds
that they have already made certain findings (adverse to the applicants)
which (the applicants reasonably apprehend) will prejudice the
applicants in the Nkatu appeal. Having been informed of the facts and circumstances and the issues involved in both the Nomoyi appeal and the Nkatu
appeal; having viewed the matter realistically and practically; and
having thought the matter through, the applicants have come to the
conclusion that there is a reasonable apprehension that the Judges will
be biased against them in the hearing of the Nkatu appeal. I
regard it as vitally important at the outset to state that the
application must in no way be seen to be casting doubt on, or impugning
the integrity of, the Judges. No personal affront or attack is directed
at the Judges. I respectfully submit that the Judges should not sit to hear the Nkatu
appeal since, in all the circumstances, the applicants entertain a
reasonable apprehension that they might not bring an impartial and
unprejudiced mind to the resolution of the questions involved in the Nkatu appeal.'
29 In her affidavit in the application, Ms Holland states: '3. . . . Essentially, the key issues which this Court will be dealing with in the Nkatu
appeal appear to be firstly, the conduct of the individual applicants
on 21 June 1995 at the respondents' premises; secondly, my conduct (as
the union official concerned) and that of the first applicant itself in
the aftermath of what happened on 21 June 1995; thirdly, the mediation
agreement reached between the respondent and the first applicant;
fourthly, the credibility of certain key witnesses Mark Anema (the
factory manager), Nkatu, Catto and me; and fifthly, the background
events which occurred earlier in the year (1995) dealing with the union
first establishing its presence at the respondent's Woodstock factory. 4. The Nomoyi appeal dealt with the conduct, inter alia,
of the appellants during a protest demonstration outside the
respondent's premises on 25, 29 and 31 August 1995. I respectfully
submit that apart from the fact that the alleged incidents of misconduct
in the Nkatu matter took place on 21 June 1995 (and that the alleged incidents of misconduct which arose in the Nomoyi
matter took place on 25, 29 and 31 August 1995) the issues which I have
identified above as being the key issues to be decided by this Court in
the Nkatu appeal are identical to those issues in respect of which the Judges have already made certain (crucial) findings in the Nomoyi appeal. 5.
This is an application for the recusal of the Judges on the grounds
that they have already made certain findings (adverse to the applicants)
which (the applicants reasonably apprehend) will prejudice the
applicants in the Nkatu appeal. Having been informed of the facts and circumstances and the issues involved in both the Nomoyi appeal and the Nkatu
appeal; having viewed the matter realistically and practically; and
having thought the matter through, the applicants have come to the
conclusion that there is a reasonable apprehension that the Judges will
be biased against them in the hearing of the Nkatu appeal. I
regard it as vitally important at the outset to state that the
application must in no way be seen to be casting doubt on, or impugning
the integrity of, the Judges. No personal affront or attack is directed
at the Judges. I respectfully submit that the Judges should not sit to hear the Nkatu
appeal since, in all the circumstances, the applicants entertain a
reasonable apprehension that they might not bring an impartial and
unprejudiced mind to the resolution of the questions involved in the Nkatu appeal.'
Footnote - 30
30 Above n 1.
30 Above n 1.
Footnote - 31
31Id at para [14].
31Id at para [14].
Footnote - 32
32Id at para [27].
32Id at para [27].
Footnote - 33
33Id at para [31].
33Id at para [31].
Footnote - 34
34 Above n 1 at para [35].
34 Above n 1 at para [35].
Footnote - 35
35 I
am therefore unable to agree with the suggestion in the dissenting
judgment of Mokgoro J and Sachs J that the Labour Appeal Court has
already pronounced on 'whether the litigants concerned behaved in a
defiant and confrontational manner which so disrupted production and the
work environment as to merit their dismissal'. At para [68] of dissent.
35 I
am therefore unable to agree with the suggestion in the dissenting
judgment of Mokgoro J and Sachs J that the Labour Appeal Court has
already pronounced on 'whether the litigants concerned behaved in a
defiant and confrontational manner which so disrupted production and the
work environment as to merit their dismissal'. At para [68] of dissent.
Footnote - 36
36 (1983) 151 CLR 288.
36 (1983) 151 CLR 288.
Footnote - 37
37Id at 300.
37Id at 300.
Footnote - 38
38National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd1995 (4) SA 456 (A) at 462C - D.
38National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd1995 (4) SA 456 (A) at 462C - D.
Footnote - 39
391953 (2) SA 479 (A).
391953 (2) SA 479 (A).
Footnote - 40
40Id at 482G - H.
40Id at 482G - H.
Footnote - 41
411990 (1) SA 361 (A).
411990 (1) SA 361 (A).
Footnote - 42
42 Above n 3 at para [40], footnote 39.
42 Above n 3 at para [40], footnote 39.
Footnote - 43
43Id.
43Id.
Footnote - 44
44 As Kentridge AJ pointed out in S v Zuma and Others1995 (2) SA 642 (CC)
(1995 (1) SACR 568; 1995 (4) BCLR 401) at para [16], the constitutional
requirement since the adoption of the interim Constitution (the
Constitution of the Republic of South Africa Act 200 of 1993) in 1994
has been that trials be conducted in accordance with 'notions of basic
fairness and justice'. In Shabalala and Others v Attorney-General, Transvaal, and Another1996 (1) SA 725 (CC)
(1995 (2) SACR 761; 1995 (12) BCLR 1593; [1996] 1 B All SA 64) at para
[29], Mahomed DP underscored the inapplicability of the distinction,
valid in the pre-Constitutional legal regime, between the 'right to a
fair trial' and an attack based on 'the narrow ground that certain
specific rules and formalities . . . were not satisfied'.
44 As Kentridge AJ pointed out in S v Zuma and Others1995 (2) SA 642 (CC)
(1995 (1) SACR 568; 1995 (4) BCLR 401) at para [16], the constitutional
requirement since the adoption of the interim Constitution (the
Constitution of the Republic of South Africa Act 200 of 1993) in 1994
has been that trials be conducted in accordance with 'notions of basic
fairness and justice'. In Shabalala and Others v Attorney-General, Transvaal, and Another1996 (1) SA 725 (CC)
(1995 (2) SACR 761; 1995 (12) BCLR 1593; [1996] 1 B All SA 64) at para
[29], Mahomed DP underscored the inapplicability of the distinction,
valid in the pre-Constitutional legal regime, between the 'right to a
fair trial' and an attack based on 'the narrow ground that certain
specific rules and formalities . . . were not satisfied'.
Footnote - 45
45 Above n 41.
45 Above n 41.
Footnote - 46
46 Above n 45 at 365H - 366A, per Friedman AJA.
46 Above n 45 at 365H - 366A, per Friedman AJA.
Footnote - 47
47Id at 366E - F.
47Id at 366E - F.
Footnote - 48
48 Above n 3.
48 Above n 3.
Footnote - 49
49R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL) ([1999] 2 WLR 272).
49R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL) ([1999] 2 WLR 272).
Footnote - 50
50Livesey,
above n 36, involved an application for recusal directed to members of
the Court of Appeal of New South Wales, but sitting as a Court of first
instance.
50Livesey,
above n 36, involved an application for recusal directed to members of
the Court of Appeal of New South Wales, but sitting as a Court of first
instance.
Footnote - 51
51 Above n 11 at para [32].
51 Above n 11 at para [32].
Footnote - 52
52Id at para [24].
52Id at para [24].
Footnote - 53
53Id at para [25].
53Id at para [25].
Footnote - 54
54National Union of Mineworkers v East Rand Gold and Uranium Co Ltd1992 (1) SA 700 (A) at 738F - 739G per Goldstone JA; Unilong Freight Distributors (Pty) Ltd v Muller1998 (1) SA 581 (SCA); De Beers Consolidated Mines Ltd v National Union of Mineworkers and Another [1998] 12 BLLR 1201 (LAC) at 1208B - C.
54National Union of Mineworkers v East Rand Gold and Uranium Co Ltd1992 (1) SA 700 (A) at 738F - 739G per Goldstone JA; Unilong Freight Distributors (Pty) Ltd v Muller1998 (1) SA 581 (SCA); De Beers Consolidated Mines Ltd v National Union of Mineworkers and Another [1998] 12 BLLR 1201 (LAC) at 1208B - C.
Footnote - 55
55Motsepe v Commissioner For Inland Revenue1997 (2) SA 898 (CC) (1997 (6) BCLR 692) at paras [30] - [31].
55Motsepe v Commissioner For Inland Revenue1997 (2) SA 898 (CC) (1997 (6) BCLR 692) at paras [30] - [31].
Footnote - 56
56President of the Republic of South Africa and Others v South African Rugby Football Union and Others1999 (2) SA 14 (CC) (1999 (2) BCLR 175) at paras [51] - [54]; President of the Republic of South Africa and Others v South African Rugby Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) at paras [251] - [259] . Compare Harksen v President of the Republic of South Africa and Others2000 (2) SA 825 (CC) (2000 (5) BCLR 478) at para [30], where there was no order as to costs.
56President of the Republic of South Africa and Others v South African Rugby Football Union and Others1999 (2) SA 14 (CC) (1999 (2) BCLR 175) at paras [51] - [54]; President of the Republic of South Africa and Others v South African Rugby Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) at paras [251] - [259] . Compare Harksen v President of the Republic of South Africa and Others2000 (2) SA 825 (CC) (2000 (5) BCLR 478) at para [30], where there was no order as to costs.
Footnote - 57
57Beinash and Another v Ernst & Young and Others1999 (2) SA 116 (CC) (1999 (2) BCLR 125) at para [30].
57Beinash and Another v Ernst & Young and Others1999 (2) SA 116 (CC) (1999 (2) BCLR 125) at para [30].
Footnote - 58
58Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others1999 (1) SA 374 (CC) (1998 (12) BCLR 1458) at para [116].
58Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others1999 (1) SA 374 (CC) (1998 (12) BCLR 1458) at para [116].
Footnote - 59
591997 (2) SA 621 (CC) (1996 (12) BCLR 1573) at para [47], where the applicant was ordered to pay the successful respondent's costs.
591997 (2) SA 621 (CC) (1996 (12) BCLR 1573) at para [47], where the applicant was ordered to pay the successful respondent's costs.
Footnote - 60
601999 (4) SA 147 (CC) (1999 (7) BCLR 725) at para [48].
601999 (4) SA 147 (CC) (1999 (7) BCLR 725) at para [48].
Footnote - 61
61 See Cameron AJ above at paras [12], [14] and [15].
61 See Cameron AJ above at paras [12], [14] and [15].
Footnote - 62
62BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another1992 (3) SA 673 (A) at 694I - 695A, quoted with approval in Sarfu above n 60 at para [37].
62BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another1992 (3) SA 673 (A) at 694I - 695A, quoted with approval in Sarfu above n 60 at para [37].
Footnote - 63
63Sarfu above n 60 at paras [30] and [36]; see also BTR Industries
above n 62 at 690A - 695B, concluding that in South African
jurisprudence 'a real likelihood of bias' is not a prerequisite for
disqualifying bias, but that the existence of a reasonable apprehension
will suffice.
63Sarfu above n 60 at paras [30] and [36]; see also BTR Industries
above n 62 at 690A - 695B, concluding that in South African
jurisprudence 'a real likelihood of bias' is not a prerequisite for
disqualifying bias, but that the existence of a reasonable apprehension
will suffice.
Footnote - 64
64 See Sarfu above n 60 at para [45].
64 See Sarfu above n 60 at para [45].
Footnote - 65
65Id.
65Id.
Footnote - 66
66 See SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) ([1999] 8 BLLR 741) at para [32].
66 See SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) ([1999] 8 BLLR 741) at para [32].
Footnote - 67
67 See Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 300.
67 See Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 300.
Footnote - 68
68SA Commercial Catering & Allied Workers Union and Others above n 66 at para [11].
68SA Commercial Catering & Allied Workers Union and Others above n 66 at para [11].