Lecture outline: Recusal and disclosure

1.    Introduction  OHT 1

Two obligations for recusal
  • The duty to hear every case that comes before him or her; and
  • The duty to apply the law impartially, without fear, favour or prejudice.

2.    Integrity  OHT 2

  • An ability to make decisions consistent with a code of ethics or values;
  • In accordance with the Code of Conduct, the Oath and the Constitution;
  • Honesty and moral virtue; and
  • Situations where one is unable to put aside one’s own values and prejudices to the extent that one cannot be impartial.

3.    Impartiality  OHT 3

  • Neutrality and impartiality. 
  • Judicial officers: "the product of their own life experiences". 
  • SACCAWU case the Constitutional Court defined impartiality as: "that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the judge’s own predictions, preconceptions and personal views – that is the keystone of a civilised system of adjudication."

4.    The test for Recusal: Reasonable Apprehension of Bias   OHT 4

SARFU case: an application for the recusal of five of its judges: the court developed a test for recusal
Elements of the test OHT 5
  1. Perception/apprehension of bias
    Example: Pinochet
                  SARFU quote
  1. Double requirement of reasonableness OHT 6
    The perception must meet two requirements: OHT 7
    • Must be reasonable apprehension of bias based on reasonable grounds; Must be a reasonable apprehension that the magistrate will be biased; and
    • The person apprehending the bias must be a reasonable and objective person in the position of the litigant who is informed of the facts.
  2. The presumption of impartiality
    • Based on the Oath of Office taken by judicial officers SACCAWU/ SARFU cases: quote OHT 8
    • Party seeking recusal bears the onus of rebutting the presumption

5.    Attitude to recusal application

  • Magistrates hold a position of power
  • Most lawyers would naturally not want to antagonise them
  • The judicial officer should not be overly sensitive or take the application for recusal personally

6.    Disclosure  OHT 9

  • Judicial officers are obliged to disclose:
    Any facts that might reasonably be relevant to a recusal application. Any circumstances that may create a reasonable apprehension of bias.
  • Irrelevant facts do not have to be disclosed.
  • No SA codes for the kinds of circumstances that may warrant recusal, and thus disclosure.
    Examples: The Zambian Judicial (Code of Conduct)

7.    Guiding principles  OHT 10

  • Would there be actual bias?
  • Would there be a reasonable apprehension of bias?
  • Is disclosure necessary?